Richard said:
This is a point I agree with Wetcoaster on. It is well known in the entertainment industry that Actors and Musicians are "unique" because of the exceptional value they provide the owner of their contract. This is one reason that NHL players have such a high market value and their salaries are so high. If i'm paying my petroleum transfer technicians and plumbers $1.0M per year, then they probably have some "unique" talent and you probably could use a similar argument and win. Value is what makes these top-notch athletes unique.
Google and Microsoft are curently locked in a legal battle over Kai-Fu Lee. At this point, the valuable exec, especially for Chinese initiatives, has been blocked from working with Google by a US court. He is currently NOT allowed to work for Google. Google has made an appeal, but it is clear that the terms of this exec's contract are valuable, just as top hockey players are to their team and league. Google still stands a chance to win the case, but they already lost round one and their key argument is that the exec's role will be significantly different than it was with Microsoft - it would be hard to argue that Kaigorodov will have a different job when he plays in the NHL as opposed to Russia.
Also, I think we also have to look beyond the value of Kaigorodov, as Russian salaries are on the rise. I would not be surprised to see better Russian players stay in Russia as opposed to coming to the NHL, and a precedent needs to be set that can be applied to ALL such player transfers - how valuable is Ovechkin if he is locked down in a 5 year contract? Immensely valuable! Who knows how good Kaigorodov will be by the time his contract expires. He could be as good as Sergei Fedorov - and i'm going to go out on a limb and say that Sergei Fedorov to Roman Abramovich is at least as valuable of an entertainment asset as The Killers are to their record label. Why does Real Madrid have to pay Manchester United so much to bring David Beckham over - unique talent & celebrity! And even mediocre footballers have transfer payments in the millions of dollars - because they provide "unique" value.
Another argument giving player contracts significant value is the fact that NHL teams give player contracts significant value in determining the value of their team - now we're talking accounting value, treating the player contract as an asset. What do you get when you buy an NHL hockey team for $100 Million? You get logos and trademarks which are reasonably valuable, you get a whole bunch of used equipment, and some expected revenues that are derived through the ownership of top talent. In fact (if I remember correctly from one of my classes in University), in purchasing an NHL team, the purchaser can accrue 50% of the team's value to "the value of player contracts" which can be amortized over the duration of the contracts in place at the purchase date. What this means is that the 20 player contracts are worth $50 Million and depreciate in value each year just as an Airplane would for Delta Airlines. This is why hockey players at the top level are unique - having them under contract rather than somebody who plays Men's Senior Hockey is extremely significant in making the NHL team more valuable than a Men's Senior Hockey team. How valuable are AHL teams compared to NHL teams? ECHL teams compared to AHL teams? Men's Senior teams compared to ECHL teams? The difference is derived from the talent level of the players - because the talent is "unique."
Richard
While I would say that there are maybe 10 or 15 hockey players whose talents would qualify as truly unique (and I could probably round up 30 GM's who would agree with me and testify as witnesses to that effect with great persuasiveness), you guys are missing the point a little bit. I suggest a reversion back to basic principles is in order.
The question that raised the point in the first place is whether team (even if they surmounted the exceedingly difficult issue of jurisdiction) a Russian club would be able to obtain an injunction. The threshold test for obtaining an injunction is whether the matter is something that be adequately accounted for by an award of damages. If it is, an injunction will not be granted, and the Russian club (in this case) would be free to pursue those damages in the normal course. If it is not something that can be adequately compensated for by damages alone, the courts will then go on to consider the other merits in play for that particular set of facts in considering whether to award a judgment (such as the terms of the contractual clause in question - assuming, that is, that one did not use the "tortious interference" argument that Wetcoaster used). This is the "gateway", if you will.
In order to pass through that gateway, as I said, one has to show that damages are not an adequate remedy. Now, in order to prove the inadequacy of damages, that is where the "unique talent" issue comes into play. It has been argued from time to time that actors and musicians have unique talents and other aspects, and accordingly their unique qualities put them in a position where the loss of that particular actor or musician constitutes a situation where damages are not an adequate remedy. In developing something inherently creative like a movie or a song, the argument is that without the elements provided by that certain person, you wind up with something inherently different. You cannot have a "Tom Cruise movie" without Tom Cruise. If you want to record an Eminem song, you cannot do so without that person. That position has found some favour in the courts.
THAT BEING SAID, before we even consider the issue of athletes in this context, Wetcoaster has suggested in this thread that this is the rule for actors and musicians. That is slightly misleading. As is the case with just about every legal issue and most certainly with respect to the law of injunctions, it is dependent on the facts. Tom Cruise and Eminem are one thing. The sixth or seventh lead actor in the movie with maybe five lines and some standing around, or the session drummer who is supposed to play on Eminem's song, is something else. As you move between those two extremes, the line is blurred. Even for actors/musicians/creative types, it is not a hard and fast rule. It depends on the facts, even for those easier situations.
Now, to apply this to a hockey player, it is true that there are about 690 NHL players at any one point. To suggest (as Wetcoaster does above) that this is the total universe of professional hockey players is of course wrong, but I will give him the benefit of the doubt and assume that he means NHL players (and has rounded up to 750, for reasons unclear to me - injuries, perhaps). Of that 690, a number of them are "on the bubble", in that they will not last even an entire season and will be cut or sent to the AHL during the season and replaced (perhaps this is where the "750" comes from?). I believe I read somewhere that there is a 10% or so turnover from year to year. Clearly, in any event, a player's uniqueness (even assuming there is such a thing) is extremely transitory in the best case, quite unlike the more permanent qualities that are pointed to in actor/musician cases. Secondly, I believe that you could get a hockey man to argue persuasively that many hockey players are for the most part interchangeable, and that (at best) there might be a continuum of "specialness". Some players (Gretzky, Lemieux) are unquestionably unique. Other elite players (Pronger, Neidermayer, Iginla, Brodeur, etc.) certainly have some special qualities. The grinders of the league are arguably not unique at all. Accordingly, while you might have an argument that an alltime great like Gretzky might be such that damages would not be an adequate remedy, you might have a hard time making that argument for Wade Belak. You can also throw in the fact that the argument might be more easily made for an individual sport than for a team sport like hockey where even the most unique player plays less than half the game and the number of players who draw an audience
by themselves can be counted on one hand.
On top of that, however, is the looming issue that I have posted about five times in this thread and which Wetcoaster has avoided like the plague. It is this: recall that the point of arguing that a player is unique in the first place is to show that damages are not an adequate remedy. Money cannot replace what this player (or actor or musician) means to me. Exactly HOW can any Russian club take this position when the facts are that they have spent the last little while arguing over the appropriate
fee for that player? The Russian clubs are perfectly content to allow those players to leave -
for the appropriate fee. That is fine, but it blows up one's argument that this same player is unique and his absence cannot be compensated for in monetary damages.
To sum up:
1. Injunctions are only available where damages are not an adequate remedy;
2. Uniqueness is only relevant in determining whether damages are an adequate remedy;
3. Even if you accept the argument that you can apply the same "unique talent/qualities" argument to hockey players that has been applied to actors/musicians, there is at best a continuum of specialness which is dependent on the particular facts.
4. There are inherent difficulties in proving uniqueness in a sport with transitory qualities where uniqueness seems to fade in and out (unlike those pointed to in the case of actors/musicians);
5. In a team sport, the uniqueness of a given hockey player is extremely difficult to prove;
6. In a circumstance where the only reason the parties would be seeking an injunction is because their representatives had agreed that there is an amount of compensation that is to be paid but temporarily have not established the
EXACT amount of that compensation (with a lengthy history of employing such a compensation model for as long as the NHL/IIHF agreements have been in place), it is impossible to then coherently argue that damages are suddenly not an appropriate remedy.
It might be different if the IIHF were arguing that the NHL must never take their players and had sought an absolute prohibition from the get-go. That is not the case, and never has been the case. It has always been about the amount of the fees. That fact is
FATAL to being awarded an injunction.
On a final point, Wetcoaster has quoted certain language in the standard NHL contract setting forth the player's uniqueness. He has extrapolated that language to the Russian player's contract, without any confirmation of his source for doing so. Cutting him some slack on that point, I am familiar with that language. As it turns out, I have signed contracts with that language stated in it as they pertain to my own services. It is fairly standard "boilerplate" language in personal services contracts. Now I could say at this point that none of the contractual language in the player's contract matters because ole' Wettie's position is foudned on TORT and not the player's contract, but I don't want to be cruel and embarrass Wetcoaster on that point again. So I won't. I will point out, however, that the parties' actions speak louder than standard boilerplate language. The parties in question were negotiating the players' monetary value; that trumps that argument. The parties clearly evidenced a mutual intent that the player's services were not so unique that an amount of money could not replace those services. To me, the boilerplate language in the contract (assuming Russian contracts are the same as the SPC used in the NHL) is easily overcome as an obstacle.
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