As for the Ilya Kovalchuk fiasco/test case, New York Magazine's sports section, via Joe DeLessio, asked arbitrator/sports law professor/director of Marquette Law School's National Sports Law Institute Matt Mitten to weigh the NHLPA's case in suggesting that Kovalchuk's 17-year contract does not circumvent the CBA, coming to the following conclusion:
July 22, New York Magazine: Is the question of whether they expect him to be playing at age 44 the biggest issue?
I would think that would be pretty important if there is a provision in there that said you can't do anything to circumvent the cap. But I'm not sure how that would apply in this particular case. What is he, 27? That's a long time to play NHL hockey, particularly if you've already been in the league for several years. But someone like Gordie Howe played, into what, his 50s? Very interesting case. Very interesting case. Does it hurt the NHL's case that the CBA does spell out rules about salary increases and decreases, and that this does follow them?
Yeah, because the arbitrator's going to have to construe the terms of the CBA. And the more evidence that the terms of the contract are permitted, that there's no express prohibition against this, and that it's structured in such a way that they can point to a particular provision and say, "Hey, look, this is permitted," then they've got a stronger argument that the NHL was trying to unilaterally prohibit it, and this would violate the terms of the CBA. Would it factor in that similar contracts, like Marian Hossa's, have already been approved?
Yeah, that's certainly relevant evidence. Going back to it and saying, well, what's really different about this contract here? I think that would be relevant evidence in determining what was really the intent of the CBA, since the express terms don't say either you can or you can't, although as you point out, it's structured in such a way that it does fall within the amount by which the salary can be decreased from year to year.
Arbitration awards are not like appellate court opinions in that they have precedent. But arbitrators do look to that. It's certainly something that would be considered. Depending on how that arbitration came out, you can bet one side or the other is really going to be relying on that to support their respective argument.
Sports Illustrated's Jim Kelley also write a SUPERB (yes, it must be capitalized) article summarizing the ramifications of this contract in terms of the NHL, the NHLPA, and the upcoming CBA negotiations, coming to this conclusion:
July 22, Sports Illustrated:
History, especially in the case of the Phoenix Coyotes, shows that when Bettman takes anyone to court, he's willing to spare no expense to win. But even if he loses in court or in arbitration, he will have at least set the table for a bargaining fight with the NHLPA. Having won the last time around, he'll likely strike fear into the rank and file if he makes Kovalchuk-sized contracts an issue that could bring about yet another league-wide lockout. It's a hammer that he's not beyond using.
There's also a problem for the PA here in that, among its many mandates, it's supposed to get as much money as possible for its members and fight any intrusion into the CBA that could limit that amount. This contract issue would qualify for such a fight, but the PA also has members who don't get Kovalchuk, Pronger, Hossa, Vinny Lecavalier, Rick DiPietro or Brian Campbell money. A growing number of players have become unhappy with the ramifications of heavily front-loaded, extremely long-term deals. In recent years, some players have had to take their well-earned, reasonable contracts and go play in the minors while GMs, including Lamoriello, shuffle the financial deck to fit superstar free agents under the salary cap.
The NHLPA is charged with protecting those lesser-light players and their interests, and its primary concern is their continued NHL employment rather than their riding buses in minor leagues. The larger their numbers grow, the more pressing the problem becomes.
So where does it all go from here? I'd like to tell you, but with even the Supreme Court undoing years of what used to be known as presumed settled law, it's next to impossible to think that this issue won't have a few noteworthy twists and turns ahead before it's resolved.