[REPORT] NHLPA files grievance on behalf of Richards for contract termination

[Gurn]

Strange part is in the old days they would find Americans at the border trying to bring guns into Canada, take the guns away during their stay in Canada and return them on their arrival back in the states. Now this guy gets busted for a small bottle of pills.

I'm starting to sound like my grandparents, talking about the good old days and how far gone this society is now..

[The Colt 45s]

Figured I'd bump this along with the news today that Richards is being charged now:

http://forum.canucks.com/topic/371796-tsn-richards-charged-with-illegal-possession-of-a-controlled-substance/

Personal use and a small amount? That alone isn't enough to terminate the contract. Is it arguable from there that his failure to disclose the incident is enough? That's a stretch for the nature of the offence.

It does not matter if it was one pill or a 1000. Actual US employment law is clear: Any sign of current drug use can result in immediate termination. He and the NHLPA have the right to file a grievance but legally they have no legal grounds to win an appeal through the courts or from the league.

[LegionOfDoom]

what were the pills? anyone know?

[theminister]

what were the pills? anyone know?

Supposedly Oxy.

The most dangerous drug in America.

[surtur]

Supposedly Oxy.

The most dangerous drug in America.

I thought DMT was?

[Provost]

It does not matter if it was one pill or a 1000. Actual US employment law is clear: Any sign of current drug use can result in immediate termination. He and the NHLPA have the right to file a grievance but legally they have no legal grounds to win an appeal through the courts or from the league.

Please link that statute you are talking about, I have never heard of it. Drug addiction is generally not considered "culpable" behaviour in labour law and more as an illness.

There are laws and policies talking about drug use actually in the workplace, but none that I know of that permit termination like what LA is doing with Richards.

Also, the CBA clearly defines the steps and responsibilities when dealing with a player for a substance abuse problem, none of which were followed as far as we know (not that we know Richards even has one... I bet a good number of professional athletes in many sports are taking painkillers that aren't always prescribed).

[webba]

It does not matter if it was one pill or a 1000. Actual US employment law is clear: Any sign of current drug use can result in immediate termination. He and the NHLPA have the right to file a grievance but legally they have no legal grounds to win an appeal through the courts or from the league.

This is for At Will employment, not collectively bargained contract based employment. The league gave up the right to immediately terminate through bargaining.

[webba]

Please link that statute you are talking about, I have never heard of it. Drug addiction is generally not considered "culpable" behaviour in labour law and more as an illness.

There are laws and policies talking about drug use actually in the workplace, but none that I know of that permit termination like what LA is doing with Richards.

Also, the CBA clearly defines the steps and responsibilities when dealing with a player for a substance abuse problem, none of which were followed as far as we know (not that we know Richards even has one... I bet a good number of professional athletes in many sports are taking painkillers that aren't always prescribed).

Any At Will employer can require drug testing at the time of employment and during employment and can terminate immediately For Cause.

To your second point, though, hockey players aren't At Will employees.

Also, I'm specifically referring to U.S. employment here, of course.

[theminister]

I thought DMT was?

Oxy is everywhere and produced on a scale that is unparalleled.

[DeNiro]

How much you wanna bet that this issue isn't resolved until after the upcoming season, and the Kings will be allowed to operate without his cap hit.

It's favoritism again. The Kings should have never been able to terminate the contract without a lengthy review process by the league and the NHLPA. Innocent until proven guilty is the way it usually works.

[KeslerPlaysLikeACanadian]

It does not matter if it was one pill or a 1000. Actual US employment law is clear: Any sign of current drug use can result in immediate termination. He and the NHLPA have the right to file a grievance but legally they have no legal grounds to win an appeal through the courts or from the league

Does the CBA not affect this? There is a collectively bargained drug policy that they can't just bypass.

[Provost]

Any At Will employer can require drug testing at the time of employment and during employment and can terminate immediately For Cause.

To your second point, though, hockey players aren't At Will employees.

Also, I'm specifically referring to U.S. employment here, of course.

I understand the gist of drug testing laws in the US... but as far as any of the facts that have come out, those wouldn't come into play, this isn't a case to do with drug testing or even evidence of drugs in his system. It is simply that he was found in possession of a restricted drug that he did not have a prescription for. Nor was it at a time when he was required to be at work and available to the employer. There are even rules in the CBA around limiting teams' contact with players in the offseason and what they require of them.

As you said though since they are collectively bargained, there are a lot of areas where a CBA is in force and takes priority before more general labour laws. You can bargain away your right to overtime pay for example. In this instance, there are specific provisions in the CBA around drug use and testing. The team has to argue based on the CBA and not federal or state labour laws.

[theminister]

I understand the gist of drug testing laws in the US... but as far as any of the facts that have come out, those wouldn't come into play, this isn't a case to do with drug testing or even evidence of drugs in his system. It is simply that he was found in possession of a restricted drug that he did not have a prescription for. Nor was it at a time when he was required to be at work and available to the employer. There are even rules in the CBA around limiting teams' contact with players in the offseason and what they require of them.

As you said though since they are collectively bargained, there are a lot of areas where a CBA is in force and takes priority before more general labour laws. You can bargain away your right to overtime pay for example. In this instance, there are specific provisions in the CBA around drug use and testing. The team has to argue based on the CBA and not federal or state labour laws.

I don't actually believe that will be the Kings' central argument.

It will be that he tried to smuggle them across an international border.

It is not a drug treatment or possession issue. It's a much bigger deal.

[Canuck Surfer]

if he committed a material breach of his contract (which no one at this point has any idea about), then the kings should be able to exercise whatever rights are laid out for them in the cba, such as choosing to terminating his contract.

likewise, if what voynov did was also a material breach of his contract, then the kings should be able to exercise whatever rights are laid out for them in the cba, such as choosing NOT to terminate his contract.

if henrik sedin slapped his wife around and was sentenced to some jail time, you're telling me you WOULD want to use that option?

come on now

Some think Sedin should have had his contract terminated for not slapping Marchand?

No wait; that was his brother...

[Provost]

I don't actually believe that will be the Kings' central argument.

It will be that he tried to smuggle them across an international border.

It is not a drug treatment or possession issue. It's a much bigger deal.

He wasn't charged with smuggling. He was actually charged with nothing when the Kings made the decision to terminate him. They had no facts or due process done at the time.

[elvis15]

It does not matter if it was one pill or a 1000. Actual US employment law is clear: Any sign of current drug use can result in immediate termination. He and the NHLPA have the right to file a grievance but legally they have no legal grounds to win an appeal through the courts or from the league.

And NHL drug offence policies in the CBA are even more clear, which have been discussed in this and other threads on how the first step is always treatment. We've never seen a case where a contract was terminated as a first step.

[webba]

I understand the gist of drug testing laws in the US... but as far as any of the facts that have come out, those wouldn't come into play, this isn't a case to do with drug testing or even evidence of drugs in his system. It is simply that he was found in possession of a restricted drug that he did not have a prescription for. Nor was it at a time when he was required to be at work and available to the employer. There are even rules in the CBA around limiting teams' contact with players in the offseason and what they require of them.

As you said though since they are collectively bargained, there are a lot of areas where a CBA is in force and takes priority before more general labour laws. You can bargain away your right to overtime pay for example. In this instance, there are specific provisions in the CBA around drug use and testing. The team has to argue based on the CBA and not federal or state labour laws.

Yup, we're on the same page here.

Given the timing, my guess is they can't have made a case for anything other than the failure to report arrest. That's a massive stretch for material breach -- UNLESS... They can show he knew a trade was in the works and he somehow did this to throw a wrench in the works. Which would be, frankly, effing insane.

[webba]

And NHL drug offence policies in the CBA are even more clear, which have been discussed in this and other threads on how the first step is always treatment. We've never seen a case where a contract was terminated as a first step.

More specifically, drug use and offenses are specifically given clauses and therefore trying to use that as a general, material breach is going to be next to impossible -- given at the time there was no charge, never mind conviction.

I don't see how anything could be claimed as material breach other than failure to report the arrest. But, man, that's just not going to fly.

[elvis15]

Yup, we agree.

[The Colt 45s]

Please link that statute you are talking about, I have never heard of it. Drug addiction is generally not considered "culpable" behaviour in labour law and more as an illness.

There are laws and policies talking about drug use actually in the workplace, but none that I know of that permit termination like what LA is doing with Richards.

Also, the CBA clearly defines the steps and responsibilities when dealing with a player for a substance abuse problem, none of which were followed as far as we know (not that we know Richards even has one... I bet a good number of professional athletes in many sports are taking painkillers that aren't always prescribed).

CBA is a good document and players seeking drug treatment is important. However, the issue here is safe harbor. He was not seeking treatment at the time; he was caught with illegal drugs at the border. Safe harbor protections claiming a disability do not apply. Because the NHL and the LA Kings are also governed by US employment law, the area of the US labor this falls is the ADA, and is also administered by the EEOC.

Here is a good application of the law:

http://www.usccr.gov/pubs/ada/ch4.htm

Important quote from the previous article:

A question sometimes arises as to whether a drug-addicted employee who breaks the company rules can, before being disciplined, enroll in a supervised drug rehabilitation program, and then claim ADA protection as a former drug addict who no longer illegally uses drugs. In her testimony before the Commission, Nancy Delogu stated:

The EEOC Technical Assistance Manual on the ADA states that such claims made by an applicant or employee will not be successful:

It is causing great difficulty for employers to determine exactly when they may take discipline against an employee who may have had a disciplinary problem, tests positive or admits to a substance abuse problem, comes into rehabilitation for maybe 30 days. The employer waits until the employee returns to the work force and then says, “All right, now we’re going to talk about the problems we have,” and the employee says, “Hey, I’m disabled, I’m now covered by the ADA. . . .” This provision actually serves as something of a disincentive to employers to offer rehabilitation and other services to employees before addressing any substantive performance problems.

The EEOC Technical Assistance Manual on the ADA states that such claims made by an applicant or employee will not be successful:

An applicant or employee who tests positive for an illegal drug cannot immediately enter a drug rehabilitation program and seek to avoid the possibility of discipline or termination by claiming s/he is now in rehabilitation and is no longer using drugs illegally. A person who tests positive for illegal use of drugs is not entitled to the protection that may be available to former users who have been or are in rehabilitation.