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03-13-2012, 01:34 PM
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I posted this in the thread on the Trade forum, and I'm going to post this here, too, since I'm sure we will see an influx of posters who aren't exactly pleased with the NHL's ruling on allowing Rads to come over waiver-free.

Apparently not many folks are familiar with Montesquieu and de l'esprit des lois.

There are two ways to interpret a rule or a law. 1) you can interpret it based on the letter of the rule or law. That is, you adhere to the literal wording of the rule or law, or 2) you can interpret it based on the spirit of the rule or law. That is, you adhere to the intention of the author rather than the literal wording.

You have one rule saying that a player can have his ELC years put on hold if suspended for failing to meet contractual obligations. That much is clear, and no one is arguing that. Radulov was suspended for going to the KHL, and the move to the KHL was viewed as illegitimate. Under Article 9.1(d)(iii) of the CBA we can all agree that he is suspended, and that suspension is legitimate.

Then, it gets tricky when you look at Article 13.23, which says that only players who were under contract but loaned to another team in another league may return to the NHL without being exposed to waivers. Everyone else is subject to waivers. That word "loaned" is what makes people freak out.

The only scenario expressly defined is the one in which a player is on loan or not on loan.

Herein lies the problem: a suspended player cannot be loaned, nor can he sign a legitimate contract with another team in another league since he is under an existing, but suspended, contract. Any new agreements are void in the opinion of the NHL. The CBA addresses valid contractual situations. There is no need to address invalid contracts since, in effect, invalid contracts do not exist.

Therefore, it had to be decided whether or not a player who is 1) under an existing and valid contract with an NHL club, 2) suspended by that club for failure to meet contractual obligations, and 3) looking to return to the NHL would be required to pass through waivers. Since this player has no valid contract with another league, 13.23 does not matter.

Yes, there is "special treatment" given to Nashville here as this is a special circumstance. As far as the NHL and the NHLPA are concerned, Radulov is simply a player under contract with Nashville who has been wandering the wilderness for nearly 4 years.

Simply put: this case should be decided by the spirit of the law, not the literal wording. The intention of 13.23 is to keep teams from bringing in players who were not already property of the team. Radulov has remained property of the Predators.
and yes, I just broke a rule by quoting a post from another forum. Sue me

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