Bob Gainey speaks: 2005 Draft.

[not quite yoda]

Gainey was interviewed along with Julien on RDS today (TSN's sister station).

Gainey did say that he was not optimistic about there being hockey this season, but "one day" there would be hockey again in the NHL but he didn't know when. Right at the end of the piece, it was mentioned that Gainey was still unsure of wether there would be a Draft in June.

I think this is positive, as he could have just said that if there is no season, then there would be no draft. But they didn't. The door was left open.

Now I understand that the Draft is a part of the CBA and that without one there are no guidelines for the event. But just because they can't agree on how to distribute revenue, that doesn't mean they can't agree that the Draft is a vital part of the future of the NHL. I am sure they can make a special agreement outlining the guidelines for a 2005 draft so that at least part of the NHL can go on regardless of wether games were played or not.

Click to read more...

 

[Kickabrat]

I am sure they can make a special agreement outlining the guidelines for a 2005 draft so that at least part of the NHL can go on regardless of wether games were played or not.

Why would either side give up a bargaining chip? For the good of the draftees? For the good of the fans? If that is where their interests lay they would be playing right now.

They have got a lot more serious issues to resolve than the draft and they can't even agree to have a meeting much less discuss issues.

The only way a draft is held is if they agree on a CBA or if the league implements new rules on its own (impass).

 

[s7ark]

Now I understand that the Draft is a part of the CBA and that without one there are no guidelines for the event. But just because they can't agree on how to distribute revenue, that doesn't mean they can't agree that the Draft is a vital part of the future of the NHL. I am sure they can make a special agreement outlining the guidelines for a 2005 draft so that at least part of the NHL can go on regardless of wether games were played or not.

They have to start talking first.. Right now I wouldn't even put money on that!

 

[Tom_Benjamin]

Now I understand that the Draft is a part of the CBA and that without one there are no guidelines for the event. But just because they can't agree on how to distribute revenue, that doesn't mean they can't agree that the Draft is a vital part of the future of the NHL. I am sure they can make a special agreement outlining the guidelines for a 2005 draft so that at least part of the NHL can go on regardless of wether games were played or not.

Who says the draft is vital? A draft helps the owners. It does not help the players. If the owners want an entry draft, they need a CBA. Why should the players agree to a draft without getting something in return?

Tom

 

[Orange]

If the owners want an entry draft, they need a CBA.

I doubt the veracity of this statement. The NHLPA is not a union, it's an association. The labor laws do not apply here. Sure, the CBA regulated how the draft went, but the owners don't need a CBA to proceed with a draft. Of course, this might piss off the players very much and when a CBA is signed, it just might invalidate that draft.

Of course, proceeding with a draft might encounter complications. Some kids might chose not to opt in in solidarity. Such actions might only widen the gap between players and owners. But in the end, the owners don't need a CBA to hold draft. Quite frankly, I don't even think they need a collective agreement to hold a season, as long as some players are willing to negotiate working agreements on a per contract basis.

 

[LadyStanley]

Now I understand that the Draft is a part of the CBA and that without one there are no guidelines for the event. But just because they can't agree on how to distribute revenue, that doesn't mean they can't agree that the Draft is a vital part of the future of the NHL. I am sure they can make a special agreement outlining the guidelines for a 2005 draft so that at least part of the NHL can go on regardless of wether games were played or not.

As has been stated by Daly, the sides have agreed to not talk about anything "else" in the CBA until the economic framework is decided. This includes things like the entry draft, waiver draft, holiday roster freeze, trade deadline, season start/end date, number of regular season games, "format" (# games) played against division/conference, playoff format, etc.

So if there is no CBA in place, there won't be an entry draft in 2005.

And according to a Yorio article a couple of weeks ago, if there is no play, but a CBA in place, they league does have a format for selecting the draft order (details weren't specified in article).

 

[Tom_Benjamin]

I doubt the veracity of this statement. The NHLPA is not a union, it's an association. The labor laws do not apply here.

Of course they do. If the labour laws do not apply, the anti-trust law does and the draft is illegal under anti-trust laws. The only reason the NHL is permitted to have a draft is because the players agree to it.

Since there is still a relationship even though the CBA is expired, anti-trust does not come into play until the union decertifies. A draft would probably be legal if it could be conducted under the rules of the old CBA. Unfortunately for the NHL, those rules require a season that determines draft order. The NHL can't unilaterally invent new rules for a draft. Therefore, no season, no draft.

But in the end, the owners don't need a CBA to hold draft. Quite frankly, I don't even think they need a collective agreement to hold a season, as long as some players are willing to negotiate working agreements on a per contract basis.

The owners definitely need a CBA to hold a draft. They can have a season without a CBA - or an NHLPA - but not without allowing the players to choose where they play.

Tom

 

[me2]

Of course they do. If the labour laws do not apply, the anti-trust law does and the draft is illegal under anti-trust laws. The only reason the NHL is permitted to have a draft is because the players agree to it.

Since there is still a relationship even though the CBA is expired, anti-trust does not come into play until the union decertifies. A draft would probably be legal if it could be conducted under the rules of the old CBA. Unfortunately for the NHL, those rules require a season that determines draft order. The NHL can't unilaterally invent new rules for a draft. Therefore, no season, no draft.



The owners definitely need a CBA to hold a draft. They can have a season without a CBA - or an NHLPA - but not without allowing the players to choose where they play.

Tom

There is always the possibility of centrally negotiated contracts. NHL negotiates and signs all the players and sends them out to the teams. If the teams agree to get their players from the NHL then that solves a lot of the problems with regards to a draft. That is unless one or two teams break rank and start signing prospects from outside the NHL group (which means we'll see clauses for this and that in club-NHL agreements and possible punishments).

 

[Ted Hoffman]

And according to a Yorio article a couple of weeks ago, if there is no play, but a CBA in place, they league does have a format for selecting the draft order (details weren't specified in article).

Yorio also said the reason the Stars got Claude Lemieux was to make sure there was an enforcer on Mike Modano's line (one of many stupid comments she's made for which she was skewered by readers). Not to say she has *no* clue was she's talking about 99.9% of the time, but if Yorio told me Tampa Bay won the Stanley Cup in June, I'd go get a second opinion to make sure.

 

[quat]

Yorio also said the reason the Stars got Claude Lemieux was to make sure there was an enforcer on Mike Modano's line (one of many stupid comments she's made for which she was skewered by readers). Not to say she has *no* clue was she's talking about 99.9% of the time, but if Yorio told me Tampa Bay won the Stanley Cup in June, I'd go get a second opinion to make sure.

You vex me.

 

[Jag68Sid87]

As soon as the 2004-05 season is officially cancelled completely, I think the attention will turn to the draft as the next piece of vital decision-making. Despite the rhetoric of "no CBA, no draft" talk, I think this will become a MAJOR issue--and Sidney Crosby may be a determining factor in what gets done. The NHLPA may not care about Crosby until next year, but I think they would like him on their side. Also, the various player agents out there would like to be on his side, as well.

Can Sidney Crosby get both sides to start talking, singlehandedly? No. However, I do expect negotiations to kick into high gear in the weeks leading up to mid-June, mainly because of the scheduled NHL Entry Draft in Ottawa.

 

[Tom_Benjamin]

As soon as the 2004-05 season is officially cancelled completely, I think the attention will turn to the draft as the next piece of vital decision-making. Despite the rhetoric of "no CBA, no draft" talk, I think this will become a MAJOR issue--and Sidney Crosby may be a determining factor in what gets done. The NHLPA may not care about Crosby until next year, but I think they would like him on their side. Also, the various player agents out there would like to be on his side, as well.

I agree. It is one for the lawyers, that is for sure. The CBA gives the owners the right to determine draft order, but with caveats:

8.5. Order of Selection. The League may determine the rules governing the order of selection among Clubs in the Entry Draft, provided that such rules (i) shall not in any manner affect or enlarge in any respect the selecting Club's rights (including, without limitation, rights of retention) in respect of such player, and (ii) are not inconsistent or contrary in any other respect to any provision of this Agreement. Following discussion with the NHLPA, the League adopted the procedures set out in Exhibit 4 as a modification to the rules governing order of selection in Entry Drafts conducted prior to 1995. In the event that the League proposes a material change to those prior rules regarding order of selection, as intended to be modified by Exhibit 4, the League shall notify the NHLPA no later than March 1 in the year of the Entry Draft during which such changes are proposed to take effect, and shall afford the NHLPA a reasonable period of time prior to the implementation thereof for the purpose of conferring regarding any such changes.

(Exhibit 4 merely sets out the existing rules.) Can the owners unilaterally change the rules for the draft based on an expired CBA? I don't know, but I suspect the legal opinion given to the NHL is that they can't hold a draft without a new CBA. That's why Gainey made his comments and why Daly has said there won't be a draft until there is a new CBA.

That does, however, open the door for Sidney Crosby. If the NHL does not hold a draft, I expect him to launch a lawsuit to get himself declared an unrestricted free agent. He'd be foolish to wait for a new entry level system. Owner apologists can forget about player agents making a difference. They are solidly in the player's camp. The last thing Sidney Crosby wants is a salary cap. He'll probably be the single biggest winner if - oops, when - the players win.

Can Sidney Crosby get both sides to start talking, singlehandedly? No. However, I do expect negotiations to kick into high gear in the weeks leading up to mid-June, mainly because of the scheduled NHL Entry Draft in Ottawa.

I don't think so. If the season is cancelled, the NHLPA won't be in a mood to cooperate. The Entry Draft is a pressure point on the owners. Why would the players want to negotiate then? They'd rather see Sidney's lawyers take the NHL to court.

Tom

 

[Kickabrat]

That does, however, open the door for Sidney Crosby. If the NHL does not hold a draft, I expect him to launch a lawsuit to get himself declared an unrestricted free agent.

What a load of horse manure.

An unrestricted free agent is defined in the CBA, if there is no CBA then what? Are you saying he will be allowed to sign with any team he wants? He and every Tom, Dick, and Henri can do that now as long as its not an NHL team.

He can't sign with an NHL team because teams are forbidden to sign ANY player until this situation is resolved. When this situation gets resolved, there will be rules in place with regards to the draft and signing of players eligible for the draft. What those rules are and how they affect the 2005 draft class and unsigned prior year draftees is open to anyone's guess, but there will be rules.

If a CBA is in place, no court will overturn a negotiated agreement between the PA and the NHL. If the rules are imposed (i.e. through impass process), and Crosby doesn't like them, he can sue all he wants. If the rules say a 1st year player gets max $500K, then that is what he gets whether he plays for NY or Pittsburgh, what's a judge going to say? No Mr. Crosby needs to get more because he is so special but Brule needs to get less because he's not so special, and Latendresse gets even less because he's even less special? If there is no financial impact on Crosby, what damages is he going to sue for? Because he didn't get drafted in June of 2005? Even if he got drafted,what's the point, there's no one playing hockey? He has no damages thus he can't sue.

The NHLPA may (and most likely will) sue in the event of an imposed settlement but it has nothing to do with the draft or Crosby.

 

[SwisshockeyAcademy]

What a load of horse manure.

An unrestricted free agent is defined in the CBA, if there is no CBA then what? Are you saying he will be allowed to sign with any team he wants? He and every Tom, Dick, and Henri can do that now as long as its not an NHL team.

He can't sign with an NHL team because teams are forbidden to sign ANY player until this situation is resolved. When this situation gets resolved, there will be rules in place with regards to the draft and signing of players eligible for the draft. What those rules are and how they affect the 2005 draft class and unsigned prior year draftees is open to anyone's guess, but there will be rules.

If a CBA is in place, no court will overturn a negotiated agreement between the PA and the NHL. If the rules are imposed (i.e. through impass process), and Crosby doesn't like them, he can sue all he wants. If the rules say a 1st year player gets max $500K, then that is what he gets whether he plays for NY or Pittsburgh, what's a judge going to say? No Mr. Crosby needs to get more because he is so special but Brule needs to get less because he's not so special, and Latendresse gets even less because he's even less special? If there is no financial impact on Crosby, what damages is he going to sue for? Because he didn't get drafted in June of 2005? Even if he got drafted,what's the point, there's no one playing hockey? He has no damages thus he can't sue.

The NHLPA may (and most likely will) sue in the event of an imposed settlement but it has nothing to do with the draft or Crosby.

Well said. I am looking very much forward to the reply from Tom.

 

[Tom_Benjamin]

He can't sign with an NHL team because teams are forbidden to sign ANY player until this situation is resolved. When this situation gets resolved, there will be rules in place with regards to the draft and signing of players eligible for the draft. What those rules are and how they affect the 2005 draft class and unsigned prior year draftees is open to anyone's guess, but there will be rules.

Look at the timing. This is true as long as the CBA is bargained.

If it is unilaterally implemented, it has to be implemented before the draft can be held. The lockout is lifted at that point and players can be signed. That's when Crosby sues because nobody is offering him a job. That's also when the NHLPA files suit with the NLRB. If the NHLPA wins the ruling, the old CBA is implemented and there is no agreed upon way to determine who has the right to Sidney Crosby. Even if the NHL wins before the NLRB, Crosby will declare the owners were colluding between the time the lockout was lifted and they actually hold an entry draft.

What will the courts do? As I said, this is going to be one for the lawyers. All we have to do is expect that Sidney Crosby will take care of Sidney Crosby. The NHL will have a problem with the entry draft if there is no season and Sidney Crosby will be very likely to do everything he can to take advantage of that.

Tom

 

[SENSible1*]

Timing is everything

Look at the timing. This is true as long as the CBA is bargained.

If it is unilaterally implemented, it has to be implemented before the draft can be held. The lockout is lifted at that point and players can be signed. That's when Crosby sues because nobody is offering him a job. That's also when the NHLPA files suit with the NLRB. If the NHLPA wins the ruling, the old CBA is implemented and there is no agreed upon way to determine who has the right to Sidney Crosby. Even if the NHL wins before the NLRB, Crosby will declare the owners were colluding between the time the lockout was lifted and they actually hold an entry draft.

What will the courts do? As I said, this is going to be one for the lawyers. All we have to do is expect that Sidney Crosby will take care of Sidney Crosby. The NHL will have a problem with the entry draft if there is no season and Sidney Crosby will be very likely to do everything he can to take advantage of that.

Tom

Assuming the NHL presents an "impasse CBA offer", what is to prevent the NHL from declaring impasse the day of the June Draft and simply holding the draft under the terms of their impasse CBA?

Crosby would have no ability to claim collusion since there was no time for teams to offer him a contract.

In all likelyhood this will end up in the courts. I'm betting the BILLIONAIRES have better/more lawyers.

 

[me2]

What will the courts do? As I said, this is going to be one for the lawyers. All we have to do is expect that Sidney Crosby will take care of Sidney Crosby. The NHL will have a problem with the entry draft if there is no season and Sidney Crosby will be very likely to do everything he can to take advantage of that.

Tom

That is an overly bold assumption. Crosby might well decide its in his best interests not to create waves. Since he's not an NHLPA controlled puppet he might choose to favour neither side and just sit it out until its sorted. Given the way he sat out the WHA offers I'd tend to think this is the way he'll go. There is no point pissing of the NHL/teams with court cases and being known as a trouble maker there after. That would be a bad career move, especially with regards to future endorsements.

 

[Kickabrat]

I'm having a tough time trying to figure out what grounds Crosby sues under or what damages he would incur?

And anyway, who says Crosby has the RIGHT to play in the NHL? There are plenty of payers that don't get drafted and never get a contract offer, can they sue to play in the NHL? Can the 25th roster player on a last place major JR "A" team sue the NHL because no one offered him a contract? According to your premise, they would. Or are you saying Crosby is special and only he is allowed to sue?

Whether the CBA is negotiated or not there will be rules for the draft. Anybody not wishing to play under those rules is frre to go play in another league that will take them. Crosby could get drafted and not sign and decide to play in Europe for more money. Does the NHL have the right to sue HIM? I don't think so.

What are the damages Crosby would be claiming? The NHL has rules, if he doesn't like them he does not have to play there. No one has a god given right to play in the NHL and they all have a choice to accept or not accept to play in the NHL.

As I said, the PA will no doubt take the NHL to court if they impose a settlement, but that has absolutely nothing to do with Crosby or any other 2005 eligible draftee.

 

[Jag68Sid87]

I think Crosby is a 'special case' because if there is one player out there that could claim that the NHL needs him more than he needs them, it's Crosby. He's viewed as the 'next one', and as such could do wonders for NHL marketing (regardless of what franchise lands him). He could even change the way the game is played (which is what Gretzky believes--he thinks players, not systems, come along and change the way the game is played). So, obviously he has some leverage.

Of course, those that say he shouldn't become a trouble-maker for the league are also correct. And looking at it from what we've seen and heard from the Crosby camp since he first took the spotlight, it would definitely seem out of character for Crosby to defy anyone, let alone the entire NHL. He doesn't have any "Lindros" blood in him, at least from the naked eye.

Still, I think the machinations surrounding the 2005 NHL Entry Draft are going to be what finally gets both sides talking again. And that's because it is a major issue for both sides.

 

[Tom_Benjamin]

Or are you saying Crosby is special and only he is allowed to sue?

Anybody can sue, but Crosby is special because the thought of him winning terrifies the NHL. If you sued, the NHL could care less. They don't care whether the courts made you an unrestricted free agent.

Whether the CBA is negotiated or not there will be rules for the draft.

If there is a valid draft in place when Crosby is first eligible to be signed, there probably is no problem. If that draft is not in place, or if after the fact the NLRB declares there was no impasse, Crosby has a case.

Anybody not wishing to play under those rules is frre to go play in another league that will take them. Crosby could get drafted and not sign and decide to play in Europe for more money. Does the NHL have the right to sue HIM? I don't think so.

So what? This isn't relevant. The NHL is not the employer.

What are the damages Crosby would be claiming? The NHL has rules, if he doesn't like them he does not have to play there. No one has a god given right to play in the NHL and they all have a choice to accept or not accept to play in the NHL.

Suppose the NHL declares impasse and implements a CBA complete with a draft that is held immediately. Crosby is drafted by the team that wins some kind of lottery.

The NHLPA files and wins an unfair labour practice suit. The NLRB throws out the imposed CBA and with it, the draft. They restore the old CBA with a draft that is invalid because there was no season to determine draft order.

Crosby would ask the courts to declare him to be an unrestricted free agent.

Tom

 

[Chili]

Daly was quoted last June saying no cba in place next year, no draft.

Now if that were to happen, things could get interesting.

What's to stop a team from signing a player (i.e. Crosby) to some sort of contract? It would not be validated by the NHL but once the smoke cleared on a new cba, how would it be handled?

And if you don't think that a team would be willing to push the envelope think of the Panthers trying to draft Ovechkin in the 2003 draft, though he was not available.

Not saying anyone would make a move to sign undrafted players but who knows?

 

[Kickabrat]

Anybody can sue, but Crosby is special because the thought of him winning terrifies the NHL. If you sued, the NHL could care less. They don't care whether the courts made you an unrestricted free agent.

I'm sure Alexandre Daigle, Rick Nash, Bouwmeister, and others thought they were special too. The thought of Crosby suing the NHL over his draft rights does not terrify the NHL it would make them laugh. You still have not said under what legal grounds Crosby could sue and what would be the damages he would sue for. Crosby may be a special hockey player but under the law he has no more rights than Brule and the other class of 2005. Do you actually think the courts would sit there and say "Oh my god this is Crosby we must bend the law to accomodate him, but only for him, nobody else is in the same position as him"? Do you think the courts operate like Seinfeld's soup nazi?

If there is a valid draft in place when Crosby is first eligible to be signed, there probably is no problem. If that draft is not in place, or if after the fact the NLRB declares there was no impasse, Crosby has a case.

What are you babbling about. If the NLRB declares there is no impasse they order them back to the negotiatiing table.

So what? This isn't relevant. The NHL is not the employer.

Re-read that section again this time with sarcasm.

Suppose the NHL declares impasse and implements a CBA complete with a draft that is held immediately. Crosby is drafted by the team that wins some kind of lottery.

The NHLPA files and wins an unfair labour practice suit. The NLRB throws out the imposed CBA and with it, the draft. They restore the old CBA with a draft that is invalid because there was no season to determine draft order.

The NLRB can determine that the owners bargained in bad faith, in which case they are indeed screwed. But that would be an extreme case and extremely hard to prove. On the other hand they could also impose the last offer from the owners as the new CBA. No one knows what they could rule and they are totally unpredictable. Let's just say the NHL would not go this route unless they were damned sure they had a better than 50/50 chance of winning.

Crosby would ask the courts to declare him to be an unrestricted free agent.
Tom

Now I know you have no clue about what you're saying. How can the court declare a free agent a free agent? Crosby has the right to sign with any team he wants. If he wants to play in the NHL however he has to play by their rules (no matter if they are imposed or are under a CBA). If they say his rights belong to Timbucktoo and he doesn't like it, he doesn't have to play in the NHL, he can go to the AHL, ECHL, Euro, RSL, etc. etc. etc. The NHL is under no obligation to give a job to anyone...Crosby included. Your argument makes no sense. EVEN IF they declare he is a free agent, he can't make any more money than allowed under the CBA (old or new) or imposed system. In either case, wathever team he plays for he gets the same money. What damages has he incured. If he has no damages, what grounds is is he suing on?

The court does not interpret a CBA, it goes to arbitration for resolution. If the NHL imposes its settlement and the NHLPA sues, the court will decide if the NHL had the right to do proceed in that matter. If the court determines the NHL had no legal right to impose a settlement (which I highly doubt would be the case) the court does not impose the old CBA they just say the NHL had no right to impose a settlement and the settlement becomes null and the NHL tries another tactic. If there are any damages to be awarded it would go the NHLPA. Crosby would have no part in this lawsuit.

 

[Kickabrat]

What's to stop a team from signing a player (i.e. Crosby) to some sort of contract? It would not be validated by the NHL but once the smoke cleared on a new cba, how would it be handled??

easy, the NHL would refuse to accept the contract. It is not a valid contract until the NHL says so.

And if you don't think that a team would be willing to push the envelope think of the Panthers trying to draft Ovechkin in the 2003 draft, though he was not available.
Not saying anyone would make a move to sign undrafted players but who knows?

It does not matter what they do or not do. If the team acted within the rules then the contract would be recognized. If they acted outside the rules the contract would not be recognized. Let's put it this way, the rules the NHL comes up with will not allow for this to happpen. If they screw up with the rules then the team signing him would win out. But do you not think the NHL could make life miserable for any team that deliberately did something like this?

 

[Tom_Benjamin]

If he wants to play in the NHL however he has to play by their rules (no matter if they are imposed or are under a CBA). If they say his rights belong to Timbucktoo and he doesn't like it, he doesn't have to play in the NHL, he can go to the AHL, ECHL, Euro, RSL, etc. etc. etc.

When did they change the US Labour law or the US antitrust law to make this an accurate statement? Are you making this stuff up or do you actually understand how labour and antitrust law applies to sports leagues? Want to explain your position in the context of the antitrust law and the dozen or so cases decided by the courts?

I was not being sarcastic when I said the NHL was not the employer. Each player works for an individual team. These teams are competing businesses. They cannot stick their heads together and make up the rules. It is against the law for competing businesses to fix prices. They can't fix the price of labour either.

Tom

 

[Chili]

easy, the NHL would refuse to accept the contract. It is not a valid contract until the NHL says so.

It may or may not be that simple. Think back to the personal services contract that Wayne Gretzky had with Peter Pocklington. The other WHA underagers had to go through the NHL draft but not Gretzky because of that deal.

It does not matter what they do or not do. If the team acted within the rules then the contract would be recognized. If they acted outside the rules the contract would not be recognized. Let's put it this way, the rules the NHL comes up with will not allow for this to happpen. If they screw up with the rules then the team signing him would win out. But do you not think the NHL could make life miserable for any team that deliberately did something like this?

What rules? There is no cba in place at this time. And in todays world of litigation, 'making life miserable' for a team as payback could have it's own consequences.