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NHL vs NHLPA: European drafted players "defected status" w/o transfer agreement

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Old
08-27-2008, 11:07 AM
  #1
Fugu
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NHL vs NHLPA: European drafted players "defected status" w/o transfer agreement

Hope that title wasn't too confusing.... per Brooks at the NY Post. Apparently the NHL will use Ted Saskin as an NHL witness in its battle against the NHLPA in determining the future of Article 8.6. The league is claiming that in the absence of a transfer agreement, this article is obsolete and players revert to "defected status", meaning the drafting team will have the rights to European draftees indefinitely. Currently, the player must be signed within 2 years or he reverts to the draft pool.

The NHLPA is challenging this position, and the article goes on to state that they will also challenge the league's contention that the CBA prohibits individual teams from negotiating their own transfer fees.


Quote:
The NHL, however, is claiming that the absence of transfer agreements with European hockey federations renders that portion of the CBA obsolete. It is the league's position that those unsigned players revert to what was known as "defected status" under the CBA that expired on Sept. 15, 2004, and thus remain the property of their drafting clubs forever.

The union has filed a grievance challenging the league's position. The NHLPA has also notified the NHL that it is reserving the right to challenge the league position that the CBA prohibits individual club-negotiated transfer fees.

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08-27-2008, 12:04 PM
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For those who are wondering what the brouhaha is about - the new CBA retained all of the "defected player" terms of the old CBA, but there was a separate letter agreement which suspended those terms once a satisfactory IIHF transfer agreement was signed. The CBA and Letter Agreement are silent on what happens if that satisfactory PTA lapses.

Based on the wording of the Letter Agreement, I bet that the league loses on this one - and the "defected player" terms are not reinstated.

Quote:
Originally Posted by CBA Letter Agreement
July 22, 2005

Ted Saskin
Executive Director and General Counsel
National Hockey League Players' Association
777 Bay Street, Suite 2400
Toronto, Canada M5G 2C8

Re: IIHF Player Transfer Agreement

Dear Ted:

This Letter Agreement is a supplement to the Collective Bargaining
Agreement ("CBA"), dated as of July 22, 2005, is incorporated therein and sets forth our
agreement relating to the NHL's efforts to secure a new Player Transfer Agreement with
the International Ice Hockey Federation ("IIHF").

1. The parties agree that the NHL's agreement to eliminate "defected
status" for European draftees is necessarily and expressly contingent on its ability to
negotiate a satisfactory IIHF Player Transfer Agreement, which is substantially consistent
with the terms of past Agreements. In the event the NHL is unable to negotiate a
satisfactory successor IIHF Agreement or make other comparable arrangements to allow
NHL Clubs the opportunity to sign European players, the changes to "defected status"
contemplated in Articles 8 and 10 of the CBA will automatically be tolled, and the parties
will consult regarding whether corresponding and resulting changes to the CBA should
be made.

2. The CBA provisions pertaining to "defected status" will be maintained
"as is" in the CBA, but the understanding of the parties is that such provisions will have
no further force or effect in the new CBA upon the completion of a new IIHF Player
Transfer Agreement. Only in the event that no such replacement Player Transfer
Agreement is successfully completed, shall such provisions have potential application on
a basis to be negotiated by the parties.

3. The parties further agree to confer again no later than August 30, 2005,
in the event a satisfactory Player Transfer Agreement has not yet been negotiated, to
discuss the status of the NHL's efforts to negotiate a new Agreement, and next steps, to
the extent any are necessary.

If this correctly sets forth our agreement, please sign one copy of this letter
and return it to me.

Yours very truly,
/s/ WILLIAM L. DALY
William L. Daly
Deputy Commissioner
National Hockey League

AGREED AND ACCEPTED:
/s/ TED SASKIN
Ted Saskin for the
NATIONAL HOCKEY LEAGUE
PLAYERS' ASSOCIATION
Date: July 22, 2005

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08-27-2008, 12:22 PM
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SJeasy
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Some questions and discussion points.

1. It seems that each side is taking the extreme view. Would a compromise be to acknowledge the defection and allow a short window for signing at the expiration of the current contract of the "defected" draftee? If not signed during the window, the "defected" draftee either reenters the draft or becomes UFA depending upon age with the same age provisions that currently apply to that status.

2. In the absence of an agreement, wouldn't it be in everyone's interest to establish a central clearing house for contracts, both NHL and Euro?

3. I may be wrong about this assumption, but from reading it seems that the KHL is establishing a system where they claim rights and enforceable contract status to a player under their system whether the contract is in force or expired where the NHL doesn't claim those extended rights. Will this issue be addressed or will the NHL have to set up a system for buying out those rights?

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08-27-2008, 12:43 PM
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Quote:
Originally Posted by SJeasy View Post
Some questions and discussion points.

3. I may be wrong about this assumption, but from reading it seems that the KHL is establishing a system where they claim rights and enforceable contract status to a player under their system whether the contract is in force or expired where the NHL doesn't claim those extended rights. Will this issue be addressed or will the NHL have to set up a system for buying out those rights?
All KHL / Transfer Fee reports I've read have concerned Russian players under contract (or allegedly under contract as the KHL claims all RSL contracts transferred, even if the player, like Filatov, did not sign a KHL contract). I've seen no indication of the KHL trying to retain rights or demand transfer fees for players whose contracts are expired.

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08-27-2008, 01:42 PM
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I say, the teams retain the rights of the defected draftees from before the new CBA.

They do not retain the rights of the defected draftees if they were drafted in the new CBA and before the transfer agreements fell.

They DO retain the defected draftees that were drafted in the new CBA after the transfer agreement fell.

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08-27-2008, 03:03 PM
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Quote:
Originally Posted by Phil Parent View Post
I say, the teams retain the rights of the defected draftees from before the new CBA.

They do not retain the rights of the defected draftees if they were drafted in the new CBA and before the transfer agreements fell.

They DO retain the defected draftees that were drafted in the new CBA after the transfer agreement fell.
Nope. Euros drafted under the old CBA were explicitly covered under the Transition Rules of Exhibit 16. The last of their "Defected" status expired on June 1, 2008 (for '04 draftees).

Quote:
Originally Posted by CBA Exhibit 16(n)
n. "Defected" Players. Any Player who met the qualifications for "defected" status
as per the terms of, and as of the date of expiration of, the Expired CBA shall
remain "defected" for a defined period of time, following which the Player shall
become free of the exclusive negotiating rights of his drafting Club and shall be
eligible to enter the League as an Unrestricted Free Agent. The "defected" status
of Players selected in the 2002 Entry Draft, or prior, shall expire as of June 1,
2006. The "defected" status of Players selected in the 2003 Entry Draft shall
expire as of June 1, 2007. The "defected" status of Players selected in the 2004
Entry Draft shall expire as of June 1, 2008
. Any Player who remains an Unsigned
Draft Choice at the time his "defected" status expires in accordance with this
paragraph shall be subject to having to enter the League through the Entry Level
System in accordance with the provisions of Article 9 of the Expired CBA,
including without limitation, the salary scale set forth therein, following
application of the 24 percent rollback as provided for in Paragraph 1(a) above,
provided, however, that such Players shall, at a minimum, be required to sign a
one-year Entry Level SPC to enter the League, regardless of the Player's age at
the time the SPC is signed and, provided further, the Player may negotiate for
Performance Bonuses only as permitted by the rules set forth in Article 9 and
Exhibit 5 of this Agreement governing Entry Level Performance Bonuses, and as
allowed under Article 50 of this Agreement.

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08-31-2008, 01:12 PM
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Quote:
Originally Posted by kdb209 View Post
For those who are wondering what the brouhaha is about - the new CBA retained all of the "defected player" terms of the old CBA, but there was a separate letter agreement which suspended those terms once a satisfactory IIHF transfer agreement was signed. The CBA and Letter Agreement are silent on what happens if that satisfactory PTA lapses.

Based on the wording of the Letter Agreement, I bet that the league loses on this one - and the "defected player" terms are not reinstated.
Quote:
Originally Posted by kdb209 View Post
For those who are wondering what the brouhaha is about - the new CBA retained all of the "defected player" terms of the old CBA, but there was a separate letter agreement which suspended those terms once a satisfactory IIHF transfer agreement was signed. The CBA and Letter Agreement are silent on what happens if that satisfactory PTA lapses.

Based on the wording of the Letter Agreement, I bet that the league loses on this one - and the "defected player" terms are not reinstated.
Hi Kdb,

Thanks for providing the letter agreement.

My first reaction to this issue was to assume that the continuation of a transfer agreement would be necessary to avoid a reversion to the treatment of defected players as written in the CBA. However, it appears from my reading of the letter agreement you provided that the condition precedent for suspension of the defected player is simply that a satisfactory agreement be negotiated - once - and that having accomplished this milestone, the defected CBA provisions remain suspended even if the satisfactory agreement lapses. Is this a reasonable description of why you think the NHL should lose on this issue?

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08-31-2008, 10:17 PM
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Quote:
Originally Posted by Fugu View Post
Hope that title wasn't too confusing.... per Brooks at the NY Post. Apparently the NHL will use Ted Saskin as an NHL witness in its battle against the NHLPA in determining the future of Article 8.6. The league is claiming that in the absence of a transfer agreement, this article is obsolete and players revert to "defected status", meaning the drafting team will have the rights to European draftees indefinitely. Currently, the player must be signed within 2 years or he reverts to the draft pool.

The NHLPA is challenging this position, and the article goes on to state that they will also challenge the league's contention that the CBA prohibits individual teams from negotiating their own transfer fees.
Who files the unprofessional conduct allegation against Ted Saskin qua lawyer if he in fact testifies against the interests of his former client?

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08-31-2008, 10:19 PM
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Quote:
Originally Posted by kdb209 View Post
For those who are wondering what the brouhaha is about - the new CBA retained all of the "defected player" terms of the old CBA, but there was a separate letter agreement which suspended those terms once a satisfactory IIHF transfer agreement was signed. The CBA and Letter Agreement are silent on what happens if that satisfactory PTA lapses.

Based on the wording of the Letter Agreement, I bet that the league loses on this one - and the "defected player" terms are not reinstated.
That is my reading of the Letter Agreement as well.

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09-02-2008, 04:32 AM
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It's going to be a difficult case for the arbitrator to decide. The NHLPA should win if they use a strict interpretation of the letter agreement but there is precedent to accept testimony that explains intent. In the Yashin decision the arbitrator made his decision based on testimony from John Ziegler that he and Alan Eagleson had a deal in place that a player would owe another year on his contract if he didn't play the final year.

Saskin and Daly/Bettman will testify along the same lines and proof of the intent exists in that the NHLPA did not challenge the NHL allowing Russian players to be designated defected free agents when Russia chose not to sign the transfer agreement. The letter agreement does not make exceptions for individual countries. All it required was a satisfactory IIHF transfer agreement to nullify defected free agent status.

Another contentious issue that may surface is whether Saskin even had the authority to insert letter agreements without ratification by the union membership. I recall complaints about that by some of the disaffected union members; that things were inserted without their knowledge.

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09-02-2008, 07:30 AM
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Quote:
Originally Posted by kdb209 View Post
All KHL / Transfer Fee reports I've read have concerned Russian players under contract (or allegedly under contract as the KHL claims all RSL contracts transferred, even if the player, like Filatov, did not sign a KHL contract). I've seen no indication of the KHL trying to retain rights or demand transfer fees for players whose contracts are expired.
Just as a slight aside, is it confirmed that those guys like Filatov, Voinov, etc actually had RSL contracts lasting into this coming season, prior to the existence of the KHL? Now granted, technically I can understand that the formation of a new league might ideally involve every player re-upping under the official umbrella of the new league. However, practically, I can also see from the teams' perspectives that the league shift would instead preferably involve just transferring all player contracts automatically. You'd think that those details would have been fairly clearly spelled out as part of the formation of the KHL.

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09-02-2008, 03:26 PM
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Quote:
Originally Posted by Buffaloed View Post
It's going to be a difficult case for the arbitrator to decide. The NHLPA should win if they use a strict interpretation of the letter agreement but there is precedent to accept testimony that explains intent. In the Yashin decision the arbitrator made his decision based on testimony from John Ziegler that he and Alan Eagleson had a deal in place that a player would owe another year on his contract if he didn't play the final year.

Saskin and Daly/Bettman will testify along the same lines and proof of the intent exists in that the NHLPA did not challenge the NHL allowing Russian players to be designated defected free agents when Russia chose not to sign the transfer agreement. The letter agreement does not make exceptions for individual countries. All it required was a satisfactory IIHF transfer agreement to nullify defected free agent status.

Another contentious issue that may surface is whether Saskin even had the authority to insert letter agreements without ratification by the union membership. I recall complaints about that by some of the disaffected union members; that things were inserted without their knowledge.
Actually, in the Yashin case, the arbiters decision was NOT based on some "deal in place" between Zeigler and Eagleson.

It was based on a correspondence between Sam Simpson of the NHLPA and NHL VP/General Counsel Gil Stein - the NHLPA asked a hypothetical question concerning a player holding out and free agent status. Stein's response was accepted then by the NHLPA and not challenged. Stein's memo then became part of the League Rules ("the Constitution and Bylaws, resolutions, rules, and regulations of the NHL (other than this Agreement) and/or any official interpretations of any of them").

Copies of all the League Rules documents were provided to the NHLPA when the CBA was negotiated and their contents still hold force unless they conflict with the contents of the CBA (or evidence that the point was a subject of negotiation during the CBA talks). The subject of Specific Performance did come up during the '95 CBA talks, but Holden ruled that since the CBA was silent on the subject of full performance and the record of the negotiations indicated an agreement on keeping the status quo therefore the League Rules came into play

edit: sadly the NYU Law page with the text of Holden's decision is no longer there:

http://www.law.nyu.edu/alumni/reunio...tsinSports.pdf

Does anyone else out there have a copy of the document? A quick Google came up empty.

Quote:
Originally Posted by Blind Gardien View Post
Just as a slight aside, is it confirmed that those guys like Filatov, Voinov, etc actually had RSL contracts lasting into this coming season, prior to the existence of the KHL? Now granted, technically I can understand that the formation of a new league might ideally involve every player re-upping under the official umbrella of the new league. However, practically, I can also see from the teams' perspectives that the league shift would instead preferably involve just transferring all player contracts automatically. You'd think that those details would have been fairly clearly spelled out as part of the formation of the KHL.
This would be true, if the RSL contracts were just personal service contracts between the player and the RSL team. However, that is generally NOT the case - at least with NA professional sports contracts. For example NHL SPCs are between a player and team (specifically as a member of the league) and only valid under the umbrella of the CBA between the NHL and NHLPA.

If Filatov's contract makes references to the RSL as any sort of governing body, it is very likely that it would no longer be valid.

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11-04-2008, 01:35 PM
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NHLPA files charge against NHL (Mod: defected player status)

http://www.kuklaskorner.com/index.ph...ainst_the_nhl/

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11-04-2008, 07:04 PM
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This is clearly in reference to the Frogren contract situation, yes? Does the filing with the National Labor Relations Board likely mean that the status remains in limbo for know?

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11-04-2008, 08:04 PM
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Quote:
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This is clearly in reference to the Frogren contract situation, yes? Does the filing with the National Labor Relations Board likely mean that the status remains in limbo for know?
It's in reference to this thread I merged it with.

Original NY Post article:
NLRB
DISPUTE OVER RIGHTS TO EUROPEAN PLAYERS


Quote:
The action by the Players’ Association immediately followed notification that the union had lost its grievance against the NHL regarding “defected player status” for drafted and unsigned Europeans.
I don't see the NLRB overturning the arbitrator's decision. NHL 1, Kelly 0

Quote:
The NHLPA lost the grievance it filed against the league based on testimony by deputy commissioner Bill Daly as to communications with, and the intent of, former PA executive director Ted Saskin when the sides agreed via a letter agreement on July 22, 2005 to temporarily adopt "defected player" status in the absence of a transfer agreement.

Though the letter agreement had expired and the PA did not agree to extend it, the NHL sent a May 19 memo to league general managers advising them that it was reinstituting "defected player" status.

In upholding the NHL's right to reinstate "defected player" status, Bloch did acknowledge Saskin's failure to consult or inform the union of his conversations and negotiations with Daly that formed the basis of the league's ability to proceed as it has.
Looks very similar to the Yashin decision in that private communications were used to make the ruling.

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04-08-2009, 04:11 PM
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Sorry for bumping this thread.

It looks like Linus Omark may be about to sign with the KHL. There is some confussion on the Oiler board on what that means with respect to the Oilers rights to him. It appears from the content of this discussion that he would remain their property. Am I correct in that assumption or is there something I am missing.

(For the record he was drafted in 2007 and spent the last few years in the SEL.).

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04-08-2009, 04:39 PM
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That would appear to be the case unless the NHLPA gets anywhere with their complaint to the NLRB. The NHLPA lost their grievance against the NHL to stop the "Defected" status from being re-instated while there's no NHL/IIHF transfer agreement in place.

some decent articles with more detail:
http://sportsking.stats.com/nhl/stor...f=hea&tm=&src=
http://www.nypost.com/seven/11042008...lrb_136899.htm


The reason why the NHLPA lost the grievance seems to be that the arbitrator determined intent in the communications between Daly and Saskin resulting in the Letter Agreement supported the NHL's position.

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04-08-2009, 05:01 PM
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So would this mean the Omark would remain Oilers property? But if the NHLPA wins their grievance then his status would change? It is pretty confusing but would love to have it clarified somehow.

I need to come over to this board more often and read about all this stuff.

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04-08-2009, 05:06 PM
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Quote:
Originally Posted by mouser View Post
That would appear to be the case unless the NHLPA gets anywhere with their complaint to the NLRB. The NHLPA lost their grievance against the NHL to stop the "Defected" status from being re-instated while there's no NHL/IIHF transfer agreement in place.

some decent articles with more detail:
http://sportsking.stats.com/nhl/stor...f=hea&tm=&src=
http://www.nypost.com/seven/11042008...lrb_136899.htm


The reason why the NHLPA lost the grievance seems to be that the arbitrator determined intent in the communications between Daly and Saskin resulting in the Letter Agreement supported the NHL's position.

Thanks for the input mouser. As always it is greatly appreciated.

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04-08-2009, 05:08 PM
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Originally Posted by MerryJ99 View Post
So would this mean the Omark would remain Oilers property? But if the NHLPA wins their grievance then his status would change? It is pretty confusing but would love to have it clarified somehow.

I need to come over to this board more often and read about all this stuff.
You may want to take care. Once this group gets hold of you you will never be the same. (Hopefully Fugu is not listening )

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04-08-2009, 05:32 PM
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Originally Posted by MerryJ99 View Post
So would this mean the Omark would remain Oilers property? But if the NHLPA wins their grievance then his status would change? It is pretty confusing but would love to have it clarified somehow.

I need to come over to this board more often and read about all this stuff.
Right now he's Oiler's property classified as a Defected player.


The NHLPA lost their formal grievance with the NHL back in November to stop the NHL from reinstating the Defected status rules--the independent arbitrator both sides agreed to ruled in the NHL's favor.

Afterward the NHLPA filed a separate complaint with the NLRB (National Labor Relations Board) claiming unfair labor practices. Based on past history it's doubtful anything will come of this, but never say never. If something did happen it's hard to predict exactly what the consequences would be.

On a related note, there's also the potential that a new IIHF/NHL transfer agreement could be negotiated. If so there would be some transition rules for how long teams had to get Defected players signed before losing their rights.


Welcome to the BoH board, we're generally a cheery bunch here

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04-08-2009, 11:14 PM
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That is pretty interesting but does make sense. In my experience if you loose a grievance once you tend to loose again when taken to another arbitration board, but I don't blame the NHLPA for exploring all of their options, if they didn't the Players would be upset I would imagine.

Thanks for the welcome, it seems to me that there are more intelligent conversations and debates that go on over here.

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