Saturday, May 30, 2015
Authors Posts by Elliot Saccucci

Elliot Saccucci

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Elliot is a litigator, media and sports lawyer working downtown Toronto at Bersenas Jacobsen Chouest Thomson Blackburn LLP. He completed his articles at the Toronto office of a national full-service firm before leaving to pursue a media, sports and litigation practice. Elliot currently teaches a negotiation course entitled “Lawyer as Negotiator” at Osgoode Hall Law School, where he graduated in the top 6% of his class, and was a recipient of the McMillan LLP Scholarship. He has written extensively on negotiation, mediation and alternative dispute resolution, and his paper on collective bargaining in the National Hockey League was published in Volume 19 of the Sports Lawyers Journal. Elliot currently represents national level amateur athletes involved in sports related disputes through the Sports Dispute Resolution Centre of Canada. Elliot can be reached at [email protected] Follow him on twitter

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Carter Ashton
DENVER, CO - JANUARY 21: Marc-Andre Cliche #24 of the Colorado Avalanche collides with Carter Ashton #37 of the Toronto Maple Leafs at the Pepsi Center on January 21, 2014 in Denver, Colorado. (Photo by Michael Martin/NHLI via Getty Images)

With the announcement yesterday afternoon that Maple Leafs winger Carter Ashton has been suspended for violation of the NHL/NHLPA Performance Enhancing Substances Program as a result of his use of a PED containing inhaler, many Leafs fans are wondering what impact this will have on the Toronto Maple Leafs.

Article 47.7(a)(i) provides that a first positive test will result in a 20 game suspension without pay.

So what does this mean for the Leafs in terms of salary cap? According to Article 50.10(c):

Player Salary and Bonuses that are not paid to such Player shall not count against a Club’s Upper Limit or against the Players’ Share for the duration of the suspension, but the Club must have Payroll Room for such Player’s Salary and Bonuses in order for such Player to be able to return to Play for the Club.

Since Ashton’s suspension is without pay, Article 50.10(c) relieves the Leafs of the cap hit associated with the salary and bonuses that he will not be paid during the course of the suspension.

For those that are interested (i.e. the Ashton family and his agent), by virtue of Article 47.7(b), Ashton will not receive any pay from today (the effective date of the suspension) until 10-days prior to the end of the 20 game suspension, at which time he’ll begin receiving 60% of his pay, and be allowed to return to club meetings and practices. Presumably then, the Leafs will have relief from his paragraph 1 salary and bonus until at least that time.

Many Leaf fans are also wondering why Ashton has announced that he won’t be appealing his suspension. Although it’s admittedly conjecture on my part – given how early we find ourselves in this story – my assessment is that he’s not appealing because of the onus of proof requirements in Article 47.9 of the CBA.

Article 47.9 states that there is strict liability for any infraction of the Performance Enhancing Substance Program. What is strict liability you ask? Let me answer that by way of analogy. In criminal law, an accused is presumed to be innocent until proven guilty, and in order to be guilty of a crime the accused must have committed the act (called the actus reus) and also have had sufficient knowledge of what they were doing (called mens rea). In order to prove someone guilty of a crime, you have to prove beyond a reasonable doubt that they both committed the act and had the requisite state of mind.

By contrast, strict liability is only concerned with the actus reus, and in order to find someone guilty of a crime that carries strict liability, you do not need to prove any sufficient knowledge or intent. In other words, the act is itself sufficient to prove guilt in almost all cases, and if you’ve committed the act you are accordingly presumed guilty.

Strict liability generally carries only very limited defences, and in the NHL (pursuant to Article 47.9) the only defences are: (i) a therapeutic use exemption; (ii) collection error; (iii) testing error; or (iv) that the player could not reasonably ascertain how the substance entered his body (i.e to guard against someone sabotaging a player).

Since Ashton seems to clearly know how and why the drug showed up in his system, and seems to accept that it is or was in fact in his system and wasn’t a testing or collection error, none of these defences would apply even though it might have been an honest mistake.

In regards to the Therapeutic Use Exemption, the CBA doesn’t provide a great deal of assistance in determining when this might apply, and the only case I can recall from experience was José Theodore’s somewhat infamous propecia case. However, as the drug in that case was used to maintain his glorious flow and had no performance enhancing properties of its own other than the potential to mask the presence of other PED’s in his system, it seems to have little precedential value for Ashton, who appears to have taken a drug that improves cardiovascular conditioning and was therefore using a legitimate PED.

In short, Ashton isn’t appealing because his chances of success are next to none. That’s the nature of strict liability.

Some of you might also be wondering why Ashton’s suspension doesn’t count against the cap, but Voynov’s does for Los Angeles. Voynov’s suspension is very different than Ashton’s and arises under Article 18-A2 of the CBA, pursuant to which the Commissioner can suspend a player for off-ice conduct that is detrimental to the reputation of the NHL. Under Article 18-A2, it is open to the Commissioner to suspend a player without pay, or cancel their contract entirely in the most egregious cases. However, in this case it has been reported that Voynov has been suspended with pay; that being the case, LA doesn’t get the benefit of Article 50.10(c) the way the Leafs will with Ashton.

So why does Voynov get suspended with pay and yet Ashton gets suspended without, for what seems by comparison to be a minor transgression? Well, that takes us back to the difference between criminal liability and strict liability offences. Although Ashton’s transgression is relatively minor by comparison, all of its constituent elements have already been proven: he took the drug, the drug is banned, and none of the defences apply; end of story.

In Voynov’s case, all that has occurred is that allegations have given rise to the player’s arrest. However, none of those allegations have been proven in court and the player is still presumed to be innocent of all charges until proven otherwise. In order to be found guilty the District Attorney will have to prove beyond a reasonable doubt that Voynov not only did what was alleged, but possessed the requisite mens rea or guilty mind in so doing.

Unlike Ashton and his strict liability offence, you can see how there are a number of ways that Voynov might ultimately be able to escape legal punishment, and not be found guilty since there are many more moving parts. Because of the potential that he might ultimately not be guilty, although the NHL acted quickly in suspending Voynov, it took a cautious approach and has not immediately suspended the player’s pay until more information comes to light. You can bet that, if Voynov’s case takes a turn for the worse, the NHL will act with similar swiftness and issue a lengthy suspension without pay. Until then, LA is on the hook for the cap hit.

I hope that helps clear up some of these very complex legal issues. Until next time, thanks for reading!

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TORONTO, CANADA - FEBRUARY 6: of the Toronto Maple Leafs of the Edmonton Oilers during NHL game action February 6, 2012 at Air Canada Centre in Toronto, Ontario, Canada. (Photo by Graig Abel/NHLI via Getty Images)

In my last two articles I discussed Ryan O’Reilly’s upcoming club-elected salary arbitration with Colorado Avalanche and James Reimer’s player elected salary arbitration with the Toronto Maple Leafs. In a continuing series of articles on salary arbitration, I’m now going to break down how (and why) I think the Cody Franson arbitration with the Toronto Maple Leafs – set for this Monday July, 21st – will play out.

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Photo: NHLI via Getty Images

James Reimer and the Toronto Maple Leafs will go to arbitration to determine what the embattled Leafs goalie is worth. Hint: he’s getting a raise.

In my last article, I discussed the upcoming Club-elected salary arbitration of Ryan O’Reilly and the Colorado Avalanche. The flipside of Club-elected salary arbitration is Player-elected salary arbitration, which procedurally is the mirror image of Club-elected arbitration with the Player driving the process and being given the opportunity to present his case first rather than the Club.

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COLUMBUS, OH - MARCH 3: Ryan O'Reilly #90 of the Colorado Avalanche warms up before a game against the Columbus Blue Jackets on March 3, 2013 at Nationwide Arena in Columbus, Ohio. O'Reilly is playing in his first game this season with the Avalanche after signing his last contract. (Photo by Jamie Sabau/NHLI via Getty Images)

Fans of the Blue and White who have yearned for a bona fide first line centre since the departure of Mats Sundin (for a forgettable half season with the Vancouver Canucks) had their ears perk up this week when it was announced that the Colorado Avalanche filed for Club-Elected salary arbitration with Ryan O’Reilly.

In case you’re unfamiliar with O’Reilly, he’s the 6 foot tall, 200lb and 23 year old centre who put up 28 goals and 36 assists this past season playing around 20 minutes a night, while averaging just under a point per game and north of 21 minutes a night in the playoffs.

Nothing yet? He’s also the player that the Calgary Flames signed to a 2 year $10 million offer sheet that was matched by the Avalanche and that saw him earn $6.5 million this past season, with a $5 million dollar annual cap hit. Oh right, that Ryan O’Reilly.

It’s precisely that $6.5 million salary figure that brings us to the arbitration process. Thanks to Article 10.2(a)(ii)(D) of the Collective Bargaining Agreement (“CBA”), and as a Group 2 Restricted Free Agent, the Colorado Avalanche must offer Ryan O’Reilly a minimum of $6.5 million dollars next season in order to qualify him and retain his rights. Thank.you.very.much.Calgary. At 23 years old, and with improvements across almost all major statistical categories, including an improving shooting percentage, this is a player that is just coming into his own and an asset the Avalanche simply cannot afford to lose for nothing.

So why are they taking O’Reilly to arbitration and how will the process work?

A. Overview of the Arbitration Process

First things first, let’s take a quick look at how the NHL’s arbitration process shakes out. The salary arbitration system is provided by Article 12 of the CBA and states that as a 23 year old restricted free agent with a minimum of 2 years of professional experience, Ryan O’Reilly is eligible for player or club elected salary arbitration.

In Player-Elected salary arbitration the player chooses to submit his case to an arbitrator in the hope of securing greater compensation in his next contract over the next 1-2 seasons. Generally this arises where the player believes he has a strong case for a raise, and yet he is unable to secure one from his club. In Club-Elected salary arbitration, it is the club that chooses to arbitrate the player’s next contract for reasons that are very much the opposite of what you’d see in a player elected arbitration. Namely, the club believes that the player is asking for too much, and that an objective third party will award the player a salary more in-line with the club’s offer.

Specifically in O’Reilly’s case, Article 12.3(a) provides that players’ whose aggregate salary (including base and signing, roster and reporting bonuses) was greater than $1.75 million in the previous season are eligible for Club-Elected salary arbitration.

By virtue of Article 12.4, a Club may choose to proceed to Club-Elected salary arbitration as long as a written request is filed (in approved form) by the later of June 15th or 48 hours after the Stanley Cup final, and notice is provided to the player, the player’s certified agent, the NHLPA and the NHL. Interestingly, Article 12.3(c) provides that a player can only be subject to Club-Elected salary arbitration once in his career, and that any further elections in respect of that player will be deemed null and void. This is it for O’Reilly.

So what does it mean now that the Avalanche have filed for salary arbitration? Well for starters, by virtue of Article 12.3(a)(i) it means that they no longer have to qualify O’Reilly at a minimum of $6.5 million next season because the act of filing for Club-Elected salary arbitration can be done in lieu of extending the qualifying offer. In fact, if the Avalanche are successful at the arbitration the arbitrator can award O’Reilly a salary as low as $5.525 million, or 85% of last year’s salary. So there is the chance that they could retain O’Reilly next season for less than what he was actually paid last year, albeit with a greater cap hit.

As you can see, filing for Club-Elected arbitration is a fairly low-risk move (in the short-term) that allows the Avalanche to maintain O’Reilly’s rights while they continue to negotiate with him until late July when the arbitration hearing is set to take place, while not being stuck qualifying him at $6.5 million next year.

Realistically, what this has done is allow the Avalanche to continue to negotiate with O’Reilly over the next month toward a long-term agreement that will likely see O’Reilly earn between $5.75 and $6.5 million over 6 to 7 seasons, all the while applying pressure by setting a drop-dead date in the form of the binding arbitration hearing. Applying this kind of pressure is a fairly classic negotiating tactic, and the smart money is on a Nugent-Hopkins type deal that sees O’Reilly take home $6 million a season for 7 seasons being completed before arbitration. This is not exciting news for Leafs fans.

B. Where it Could get Interesting

There are two wrinkles, however, that have the potential to make the O’Reilly situation interesting. The first is that, Article 12.3(a)(iv) states that by virtue of being subject to a Club-Elected salary arbitration, O’Reilly is eligible to sign an offer sheet between now and July 5th, 2014 with one of the 29 other NHL clubs. At a presumed average salary of $6 to $6.5 million, that means a club would have to be prepared to surrender a 1st, 2nd and 3rd round draft pick in next season’s draft if Colorado didn’t match the offer. In fact, Article 10.4 provides that based on current salary figures the offering team could sign O’Reilly to an average value of up to $6,728,781 per season before the compensation increases to two 1st’s, a 2nd and a 3rd. (Sorry Leafs fans, the Leafs currently do not own their 2nd round draft pick next year because of the Bernier trade).

We saw Colorado match an offer sheet that paid O’Reilly $6.5 million last season (but with a $5 million cap hit) within hours of receiving in, but do they automatically match an offer that sees him carry an average cap hit of $6.5 million+; especially when they’d ideally like to retain Statsny (their best two-way centre, and currently taking home $6.6 million) and will need to re-up super rookie Nathan Mackinnon in a couple of seasons? Food for thought.

The second way that this could get interesting is if O’Reilly and the Avalanche continue to negotiate but fail to reach a deal and this actually heads to arbitration. Article 12.9 states that Club-Elected salary arbitrations proceed as follows:

  1. The case of the club and the NHL;
  2. the case of the player and the NHLPA;
  3. rebuttal and closing of the club and the NHL;
  4. rebuttal and closing of the player and the NHLPA; and
  5. surrebuttal by the club and NHL if applicable.

In establishing their case, the club and the NHL are permitted to lead all sorts of evidence, including:

  1.  Performance as determined by official NHL statistics (does not include Corsi and Fenwick, which aren’t officially NHL maintained statistics);
  2. the number of games played, injuries and illnesses during the preceding seasons;
  3. the length of service of the player with the league and/or club;
  4.  the overall contribution to the competitive success or failure of the club in preceding seasons;
  5. any special qualities of leadership or public appeal not inconsistent with the fulfillment of his responsibilities as a playing member of his team; and
  6. the overall performance of allegedly comparable players in the preceding seasons and their compensation.

As an aside, the club and the NHL cannot lead evidence of: (i) the team’s financial position; (ii) previous unsuccessful negotiations with the player; and (iii) video, media reports and testimonials.

Admissible evidence can be presented by affidavit (written sworn testimony), live witnesses and any other relevant documents in the possession of the club.

What you should take away from the above is that in trying to reduce the compensation of the player who is the subject of the arbitration the club will lead evidence from various club officials who will downplay positive statistics, focus on propensity for injury or illness, diminish the player’s contribution to the competitive success of the club (or focus on his contribution to the club’s failure, if applicable), downplay any leadership or community involvement undertaken by the player, while simultaneously boosting the profile of comparable players in an effort to justify why this particular player should be paid less than his peers. Sound like fun?

In the worst case scenario at the end of all of that one of the NHL/NHLPA’s 8 pre-selected arbitrators may well turn around and force the athlete to play for the club (for 1 or two seasons depending on the player’s election prior to the hearing) at what might be only 85% of last season’s salary (although this is rare). Does this sound like a recipe for an enduring positive relationship between O’Reilly and the Avalanche, especially in light of how his previous negotiations have unfolded?

After the close of the hearing, the arbitrator has 48 hours to reach a decision and communicate it to the club and the player. In a Club-Elected salary arbitration, the CBA does not provide either of the club or the player with the right to walk-away from the award, so if this does proceed to arbitration O’Reilly will be with the Avalanche for next season.

If, in fact, this does proceed to arbitration I cannot see O’Reilly choosing anything but the one year deal, given his negotiation history and the likely fall-out from the arbitration process, so he and the Avalanche will likely be right back here next off-season, but without the Avalanche holding the bargaining hammer of Club-Elected arbitration. In other words, this is likely the one chance for the Avalanche to get O’Reilly signed to a long-term deal that makes sense for both sides, failing which this player will likely be on the move next off-season.

C. The Bottom Line

The rising NHL cap, which is expected to hit or exceed $69 million next season means that more than a couple of NHL clubs will have the financial wherewithal to take a run at O’Reilly with an offer-sheet leading up to July 5th. Given that the likely compensation is a 1st, 2nd, and 3rd round draft pick, it would make sense from an asset maximization stand-point for one of the 29 other NHL clubs to sign O’Reilly up. However, the rising cap also means that Colorado will have the means to match the offer, which they have shown a decided willingness to do with this player. The reality is, in the modern NHL clubs simply do not let go of premier young talent, especially at centre ice, and O’Reilly is likely to be signed before this heads to arbitration, or else sign an offer sheet that is ultimately matched by Colorado.

Sorry Leafs fans; better off hoping we trade up and draft Sam Bennett.

Picture it: You’re at the gym for a game-day workout, visions of an afternoon nap dancing in your head, and suddenly Duthie’s beaming face (appearing in the flat screen mounted to the wall) is informing you that you, yes you, have been traded to the (sigh) Edmonton Oilers. As the blood rushes in your ears you sort of miss what the return is; and besides, you’re suddenly distracted by the onslaught of messages your iPhone is now receiving. Everybody and their cousin wants to know how you’re feeling about becoming an Oiler. Quick man, defuse those t-bombs! But what did you expect? It’s trade deadline time after all.

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Dion Phaneuf / Phil Kessel
Photo: NHL.com

Darren Dreger is reporting that a contract extension for Dion Phaneuf is near completion, as in it could be signed and sealed before the New Year. The long rumoured figures have The Captain’s new deal in the neighbourhood of 7×7. Phaneuf would join David Clarkson, Joffrey Lupul, Phil Kessel, James van Riemsdyk and Tyler Bozak as ‘core’ members of the team locked up through to the end of the 2018 season (or beyond). 

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Gary Bettman
ajc.com

How will it happen & what does it mean for the Toronto Maple Leafs?

A. Background

In a memo released in September of this year, the Chief Operating Officer of the NHL notified all league employees of initiatives and staff changes to take effect during the 2013-2014 season. In the memo the league identified a plan to increase annual gross national revenue by $1 billion dollars by the end of three years, or in other words, in time for the 2016-2017 season. To put that type of increase in perspective, it had previously taken the league from 2005-06 to 2011-12 – or 6 years – to attain the same revenue growth. Forget linear growth, we’re talking exponential revenue growth here, folks.

Good morning MLHS,

First off, let me start by thanking Alec, Michael and Michael for inviting me to participate in Maple Leaf Hangout Episode #17 – if you guys and gals had nearly as much fun watching as I did filming, then you and I are off to a good start!

Secondly, I wanted to take a moment to introduce myself to anyone that didn’t catch the Hangout and wonders what the heck I’m doing here. I’ve been following Alec’s writing since he started out at that ‘other site’ and I quickly moved over to the greener pastures of MLHS when he made the move. Along with reading all of the incredible content that the writers here put together, I’ve also stealthily followed the comments sections, and although I never actually posted myself, I feel like I’ve gotten to know a number of you by reading your comments over the years. So on that note, let me say that it’s an honour to have the opportunity to write to you along with the rest of the stellar (myself excluded) MLHS team.

Briefly, I’m a lawyer working downtown in Toronto with a concentrated litigation practice. As part of my education I’ve had the opportunity to study and write extensively about sports and entertainment law, and I now work at a firm with a practice in media litigation. As a guy with dreams of working in sports, I can’t tell you how many hours I’ve spent immersed in this site getting my hockey fix. My hope is that I can provide a slightly different take on some of the news and events that concern hockey and our Toronto Maple Leafs. But make no mistake, I’m a fan of the game – and more specifically the Maple Leafs – first and foremost.

I know that the Michaels and I addressed the Rogers deal with the NHL earlier, but I thought I’d just provide a quick run-down for anyone that missed the Hangout, or who simply wants a quick reference.

The Rogers Deal: The Basics

The proposed deal is for 12 years and approximately $5.2 Billion, which averages out to more than the $400 million/ season that the Commissioner was reportedly seeking from a new Canadian broadcasting deal. The deal is one of the longest in sports broadcasting history, and is unprecedented in that it is the first time in North American sports that a major sports league has granted exclusive distribution rights to a single broadcast network. As a result of the deal Rogers gets exclusive rights to all Canadian hockey, across all media platforms (including television, digital, and mobile) until the end of the 2026 season (or roughly until Rick Dipietro’s deal with the Islanders was supposed to expire). Rogers will have the exclusive right to broadcast Canadian hockey on Wednesdays, Saturdays and Sundays.

As part of the deal, Rogers will sublicense two games a week to the CBC under the Hockey Night in Canada moniker over the next 4 years, while TVA will carry all French language broadcasts in la Belle Province. It’s not clear what will happen to the CBC’s affiliation with Hockey Night in Canada beyond four years. The CBC will also retain playoff games and Stanley Cup finals games that  fall on a Saturday. Interestingly, because HNIC has now become part of the Rogers programming platform, editorial control over HNIC (including on-air content, talent and creative direction) now belongs to Rogers. In other words, if you’re tired of hearing Glenn Healy malign the Leafs call Nadir Mohamed (don’t actually) because the CBC can’t help you anymore.

Probably the single greatest impact of the deal is that is promises to mark the end of “regional games” and “blackouts.” So what does this all mean for us Leafs fans?

The Rogers Deal: Through a Blue and White Lens

Unequivocally, the end of “regional games” and “blackouts” is a good thing for Leaf fans living outside of the Leafs broadcast region who just want to watch hockey games featuring the Leafs. Regional games and blackouts occur as a result of agreements reached between the NHL, the national broadcaster (currently TSN and CBC), regional broadcasters (currently Sportsnet), and to some degree the hockey club. Take for example a poor Leaf fan stranded in Vancouver, far removed from his or her favourite team.

Screen Shot 2013-11-27 at 6

Under the current (expiring) deal, when a regional Leafs game is scheduled only those viewers residing in the Leafs broadcasting zone can see it. Making matters worse is that when a regional game is scheduled on a night when a national broadcaster is airing another game coast to coast, in order to prevent the games from competing for viewership the regional Leaf broadcast is limited to a 50 mile radius around the ACC.

Under the new deal, it would appear that even where the regional broadcaster (which will now be TSN as the station retains 10 regional Leafs games in 2014 and 26 in 2015) is broadcasting the Leafs game in Ontario, Rogers will have the right to broadcast the game outside of Ontario, so our Vancouver residing Leafs fan is now a happy camper. This is one of the major benefits of having a single media broadcaster because the concern over games competing against one another is a lot less pressing when you own the rights to all of the games anyway.

The concern for Leafs fans is that as part of the deal struck between Rogers and the CBC it may become necessary to subscribe to cable to see any Leafs games. The way the sub-license has been structured it’s not necessarily the case that the CBC will be carrying the Leafs on HNIC in Canada on a Saturday night. While Rogers owes the CBC two NHL games a week, the company retained control over on-air content and may simply decide that it would prefer to have the marquee Leafs matchup on CityTV rather than CBC. If that is in fact the case, then fans will not be able to tune in to the CBC’s free HD feed, and may need to start shelling out for games.

While the deal has not yet been ratified, the NHL Board of Governors is set to meet during the second week of December and will vote on the deal. That being said, anything less than resounding approval by the Board would be shocking at this point. In short, get ready for a whole-lot more Kypreos for the next 12 years.

Until next time,

Elliot