Resolute said:
I get that. What I am asking is whether, in your opionion, Carpenter is correct in stating that courts are very unlikely in awarding an injuction when there is an opportunity for financial compensation. Furthern I am wondering why the fairly long history of the RSL giving up players for financial compensation would not work against the RSL if that statement is accurate.
You two have been arguing quite well, imo, but you have constantly danced around that issue. Since it appears your entire argument is predicated on the ability of the RSL to gain an injunction preventing a Russian player under Russian contract from coming over to the NHL, I cannot accept your argument so long as you are unable to answer this question. If Carpenter is wrong, please explain how.
He has one opinion, I have another. No surprise that lawyers hold differing opinions.
Here is the basic manner in which various injunctive relief operates. This si basic law school stuff from contract law and remedies.
A court may be able to restrain a party from committing a breach of contract by injunction. There are three types of injunction:
· Interlocutory injunctions are designed to regulate the position of the parties pending a hearing.
· A prohibitory injunction orders a defendant not to do something in breach of contract.
· A mandatory injunction requires a defendant to reverse the effects of an existing breach.
With prohibitive injunctions, a court, in the exercise of its discretion, will not be influenced by the fact that the defendant's compliance with the injunction would be unduly onerous or that the breach would cause the plaintiff little prejudice. However, with mandatory injunctions, a court will apply the 'balance of convenience' test, refusing relief if the hardship caused to the defendant by compliance with the order outweighs the consequential advantages to the plaintiff.
The general rule is that an injunction will not be granted if the effect is to directly or indirectly compel the defendant to do acts for which the plaintiff could not have specific performance. For example, to require performance of a contract for personal services. Usually in employment/personal service cases financial compensation trumps an injunction. But in cases involving professional athletes, actors, singers and such - the courts look upon as having unique or special skills or talents - courts will issue injunctions in such cases. The injunction does not force the player to fulfill his previous contract - only that he cannot play for the team subsequently signing him.
I look at the case law in this area going back to the 1843 case of Lumley v. Wagner where a prohibitory injunction was granted with an opera singer. It is the classic case in the common law and well-known to all law students.
http://www.4lawschool.com/contracts/wagner.htm
Also the case of Warner Brothers v. Nelson (Bette Davis) is germane. The British courts enforced a US contract Davis had signed with Warner Brothers film studio and issued an injunction against Bette Davis from acting in a film in Britain pursuant to a contract she had signed with a British film studio. The point here is taht a foreign contract will be cosidred under the usual conflict of laws (aka private international laws) principles.
So if you have a contract with a Russian team which contain negative obligations, i.e you are exclusively bound to the Russian team and have agreed not play for anyone else, then it is a personal service contract containing negative obligations which can be enforced by injunction without compelling positive performance of the whole contract. That is the Lumley v. Wagner principle.
In the Bette Davis case the negative stipulations were too wide (basically prevented her from doing anything except acting for Warner Brothers) so the court severed the wide stipulation and enforced it in part. IIRC the court said there was nothing to prevent Bette Davis from going to work as waitress but she could not work as a an actress except under her existing contract with Warner Brothers.
My point is that the Russian team can seek injunctive relief in a court in North America. Will it be granted? That will be up to the court in the exercise of its equitable jusridiction. IMHO it is available as remedy based on past cases. IMHO the North american courts are the proper forum since both the player and the NHL team would be in that jurisdiction.
There is no enforcement of a foreign judgment involved as some have claimed since the action would be filed in the jurisdiction in which the NHL team operates and the player would be located.
There could be an action filed against the NHL team (and possibly the NHL itself if it registers the contract) for tortious interference with contractual relations.
That is my opinion, others may differ.
However based on the recent reports on the Malkin situation it appears that he and the Penguins are bowing to the inevitable - he is under contract and cannt simply come to Pittsburgh and play as some earlier suggested he could without a transfer beng paid. That has been my point from the beginning.
