The latest information I have seen is that the Predators are claiming to have prepared the QO's and placed them in the hands of a courier service prior to 5pm New York Time on June 27, 2011. They apparently have acknowledged that they did not fax the notice of QO's to the player agents or the NHL on or before the deadline.
What seems to be at issue is whether or not the time deadline applies to the transmission or the actual delivery and receipt of the QO's by the player. There may also be an issue at to whether this requirement has been modified by past practises.
Here is what the CBA provides in respect of time limits and note this applies ONLY to the player - there are no specific time limits in respect of notifying agents or the NHL league office:
In order to receive a Right of First Refusal or Draft Choice Compensation (at the Prior Club's option) with respect to a Restricted Free Agent, the Prior Club of a Restricted Free Agent must tender to the Player, no later than 5:00 p.m. New York Time on the later of June 25 or the first Monday after the Entry Draft...
In this case the first Monday after the Entry Draft applies so 5:00 pm New York Time on June 27, 2011 is the applicable deadline.
If the facts are as set out above then the issue becomes what does "tender" mean.
If I am counsel for the Preds and/or the NHL I would argue that "tender" in these circumstances means the act of placing the proper form of notice and QO in the hands of the courier service for overnight delivery before 5:00 pm New York Time to the player at his supplied or last known off-season address.
I would argue that if that section meant actual delivery and receipt of the notice and QO by the player by June 27, 2011 it would have specifically used that language.
If I am counsel for the players and/or the NHLPA I would point out that "tender" in a contractual sense normally means delivery and receipt by the player.
There is also the issue of what is called "waiver and acceptance" - under this doctrine a past practise accepted by both parties that may not technically comply with the written provisions, may create in effect an amendment to the CBA. The issue here will be the content of the past practise.
The NHL will likely contend that in the past placing the QO's in the hands of the courier service prior to the deadline has been sufficient.
The NHLPA will arguing that the Preds did not follow this past practise which included a concurrent fax of the QO's to the agents and NHL. So since none of the players, their agents or the NHLPA actually received the qualifying offers by the deadline means they were not tendered on time. The NHLPA will likely argue that what the past practise involved was what is often known as "constructive notice", i.e. by supplying the notice and QO to the player agent in accordance with the written deadline, the player while not having actual notice had notice by way of his agent.
That seems to be the issues before the Arbitrator.