• Send Lawyers, Guns and Money

    by  • July 3, 2007 • Uncategorized • 44 Comments

    The shit has hit the fan.  The statement released on the Oilers’ website today is pretty unbelievable:

    On Sunday, July 1, 2007, Kevin Lowe, Oilers General Manager, and Mr. Mike Gillis, Certified Agent for Michael Nylander, negotiated and agreed to a multi-year NHL Standard Players Contract, starting in 2007/08. Mr. Gillis confirmed same to the Oilers in writing.

    The Oilers then proceeded with preparations to announce Mr. Nylander’s contract agreement on July 2, and concurrently continued with the process of negotiating with other free agents based upon Mr. Nylander being an important roster ingredient for the future.

    However, while the Oilers were expecting the returned, signed agreements from Mr. Nylander and Mr. Gillis, the Oilers discovered through public announcements made mid-afternoon on July 2, that Mr. Nylander had subsequently entered into a long-term contract with the Capitals.

    The Oilers can find no precedent for such conduct in our history. The Oilers are examining and pursuing every course of action available in the best interest of the team and our fans.

    For legal reasons, the Edmonton Oilers Hockey Club will not be discussing the details any further at this time.

    After kind of quickly mulling this over, I’m inclined to think that there isn’t a fruitful course of action available to the Oilers here.  Let’s start with the CBA, the source of all law in the NHL.  Article 11 of the CBA governs player contracts.  There are a couple of key provisions that I want to highlight here.

    11.1  Standard Player’s ContractThe Standard Form SPC annexed hereto as Exhibit 1 will be the sole form of employment contract used for all Player signings after the execution of this Agreement.  The Standard Form SPC may not be amended or modified in any manner whatsoever.

    11.3 Validity and Enforceability.  Except as expressly set forth in Section 11.5 below, no SPC shall be valid or enforceable in any manner whatsoever unless and until it has been filed with Central Registry and approved by the League or the Arbitrator…

    11.5 Filing and Approval Process

    (a)  An SPC or an Offer Sheet will be deemed to be filed with Central Registry only when it is actually received by Central Registry.  A Club shall file an executed SPC or Offer Sheet with Central Registry by hand, facsimile or electronically, in accordance with Exhibit 3 hereto (provided that any electronic version of the executed SPC must have the optically-scanned signatures affixed thereon.)

    To me, this doesn’t even seem particularly difficult – I’m having a hard time seeing the arguments in the Oilers favour here.  The only way in which the Oilers can sign Nylander to a contract is by filing that contract with the Central Registry and the contract being approved by the league.  The only document that can be filed with Central Registry is an SPC.  An SPC with an email or something else attached indicating agreement would seem to me to be a modified document.  I would argue that the provision in 11.5(a) respecting the optically-scanned signatures being affixed thereon provides some support to this position as well – if the SPC can’t be modified and the optically-scanned signatures have to be visible – how can whatever the Oilers have meet that test, unless what they have is a signed SPC?

    The NHL has a contractual regime that differs from those of nearly every other walk of life because a contract needs to be registered in order to be official and because the form of the contract is specified.  Myself, I can’t see how the Oilers can make the case that they had a contract here, because a contract needs to meet the requirements laid out above.  I have no reason not to believe them when they say that this is a first in their history and, essentially, that Gillis and Nylander have violated the gentlemen’s rules by which UFA season is conducted.  I just think the problem that they’ll encounter is that the written rules trump the gentlemen’s rules and by the written rules, the Oilers didn’t have a contract.  One wonders how serious the Oilers are about pursuing this – if they have no real shot at a remedy, what’s the point?  The time for the Oilers to wonder about breach of contract was last year, not now.
    This whole thing strikes me as silly anyway.  Two years from now, when Kevin Lowe is the VP of Remembering the Eighties and someone (competent?) is running the show, I’d suspect that the Oilers management will be happy not have Nylander around pulling down $4.75 or whatever he got from Washington.  The only downside I can see is that I pretty much have to withdraw my comments about them seeming to have a plan.  I think that they got lucky here.  Maybe it’s for the best that their attention was diverted from spending money on UFA’s for the past few days – I’d hate to see what they could have done with that money.

    About

    44 Responses to Send Lawyers, Guns and Money

    1. sketchy
      July 3, 2007 at

      If Washington knew that Nylander had signed an offer from the Oilers (or his representation had) would that not make this tampering?

      Stauffer said that Washington Media had been in touch with sources in the Oilers organization prior to the announcement that Nylander had signed anywhere, it’s likely that Washington management had an inkling that something was afoot. Was it a deliberate attempt to usurp the Oilers offer, or curiosity about an offer made?

    2. July 3, 2007 at

      I agree that they would have regretted this contract very soon. I mean for a two year deal I could see it, he’s fun to watch and he usually creates a lot of offense for both teams on the ice. Unless he’s really changed his spots … he’s not a significant threat to damage the lottery pick position IMO.

      But FOUR years? Damn. Either this is one hell of a long, drawn out period of craposity that Lowe is planning … or there is no (defensible) plan at all.

      Sigh.

    3. RiversQ
      July 3, 2007 at

      Vic Ferrari said…
      I agree that they would have regretted this contract very soon. I mean for a two year deal I could see it, he’s fun to watch and he usually creates a lot of offense for both teams on the ice.

      So is it very soon or after two years?

      I dunno, I would have been fine with it. I think it would have been decent for two years, mediocre in Year 3 and flat out bad in Year 4. Of course, it seems to me almost every GM in the NHL is willing to write off at least one year at the end of these long-term deals. So what I’m saying is that a free year almost seems to be built into the price these days.

      Hockey-wise, Nylander is something like +85 in standard stupid +/- over the last six years and obviously was an outscorer at 5V5 playing soft opposition with Jagr on the NYR. Who’s to say that he couldn’t have likewise been an outscorer playing with Hemsky in a similar role?

    4. July 3, 2007 at

      Great post. It looks as though the brains of the operation has moved to Ohio. Not surprisingly, this is the first objective view of this fiasco that I have read. Thanks.

      ps – I think the last line of your post really says all you need to know about the current regime.

    5. mc79hockey
      July 4, 2007 at

      If Washington knew that Nylander had signed an offer from the Oilers (or his representation had) would that not make this tampering?

      Not if an “offer” doesn’t equal a contract.

    6. Relio
      July 4, 2007 at

      I’m not sure the CBA in that respect applies. Obviously there was no SPC with the Oilers or this would be a pretty open and shut case. The problem, I think, lies in the fact that the Oilers believe they had a letter of intent from Gillis that his client would be Oilers property in the fall. If they are allowed to just walk away from that and sign with another team, then the way teams/agents do business in the Free Agent Frenzy needs to change. I’m not connected in the Philly organization, but I’m pretty sure they didn’t wait for the SPC to be Couriered across the country from Briere before announcing his signing. Suppose after his call-in to TSN he gets a call from another GM saying ‘Listen, Danny-boy, that deal with Philly – you’ve only signed a LOI, right? Not an actual contract? Cause we can make you a better offer!”

    7. mc79hockey
      July 4, 2007 at

      So what you’re saying then that the section of the CBA requiring certain formalities is meaningless?  That goes against all provisions of contractual interpretation that I’m aware of and I can’t see a reasonable interpretation that favours Edmonton.

    8. Engineer
      July 4, 2007 at

      The way I see it, the real “damage” done here, is the inability of the Oilers to pursue other UFAs, while waiting to hear from Gilles/Nylander. Going by a few assumptions, I see it as a situation where the Oilers have a verbal agreement/letter of intent in place, and stick with it, while the player does not. That would leave me peeved, too.

      Otoh, I’d be peeved at my legal department for not specifically stating in the offer that it would expire, say, four hours after being sent.

    9. sketchy
      July 4, 2007 at

      If ALL the Oilers have is an SPC I guess the NHL can not be involved within the limitations of the CBA. A written LOI will still entitle the Oilers to some sort of remedy in civil court, right?

      I would love to see the Oilers sue Giles, Nylander, and the Capitals, and if they are successful offer Ovechkin a max-contract as an RFA next year using the Caps own cash.

    10. Rod
      July 4, 2007 at

      To me, this doesn’t even seem particularly difficult – I’m having a hard time seeing the arguments in the Oilers favour here.
      I agree there’s no chance of the Oil being awarded Nylander. I doubt that’s what they’re after though. Clearly they’re claiming damage caused by Mr. Gillis and Nylander. Any other time of year, backing out of a “letter of intent” wouldn’t hamstring a club. Thing is, the LoI was signed in the first 24 hours of “Free Agent Frenzy” ™. The Oilers understandably thought money and term had been committed to a player. In a cap / budget world, that affects the rest of your shopping list. A few hours later, the Oil lost one of their own UFAs (Sykora). And so on. Damage was clearly inflicted.

      Remedy/restitution/compensation for that damage is the tricky part.
      - from Gillis and/or Nylander would obviously be monetary
      - perhaps the Oilers are looking for a compensatory pick in next year’s draft. Such picks used to be awarded to teams upon losing UFAs, and were removed in the new CBA (I’m sure the Sabres and Islanders want those reinstated…). I think they’re still awarded if a team fails to sign a first round pick (and the pick re-enters the draft). All in all, compensatory picks are not unheard of.
      - perhaps they’re hoping Gillis will be sanctioned. As posted elsewhere (I believe by asiaoil), the NHLPA shouldn’t really be happy with this situation. A fast flying free agent circus is in their best interest (for the PA as a whole). If an agent pulls tricks like this, new rules may be instituted, turning the whole process into a quagmire. That’s without saying the NHLPA doesn’t want teams using the similar tactics.
      - I’d imagine Gillis’ reputation among other NHL GMs has taken a hit. Why should other GMs trust Gillis? Failing all other remedy’s, perhaps the release tarnishes the image of Gillis.

      Besides, the release is better than saying nothing. Gillis and Nylander may treat a Letter of Intent as nothing more than toilet paper. Saying nothing indicates you feel the same. A letter of intent is not at the level of a contract / SPC. However, it’s not meaningless. Making it meaningless turns the FA process on its ear. They had to say something.

      The time for the Oilers to wonder about breach of contract was last year, not now.
      Too true.

    11. Marky Narc
      July 4, 2007 at

      It sounds like the Oilers are getting screwed by Nylander’s agent. That’s a shame, really, since he’s the least visible person in this mess. I can’t really lay any blame on Nylander himself if he didn’t sign anything with Edmonton. That’s not his fault. And I don’t see any reason why the Capitals wouldn’t be negotiating in good faith; it’s not Washington’s responsibility to find out of Nylander is in talks with anyone else.

      No, the person to blame here is Gillis. He made the Oilers believe his client was going to do something that he was not.

    12. Oilman
      July 4, 2007 at

      all this talk of “Jagr padding Nylanders stats so we’re lucky we don’t have him” is crap…Sykora played with Jagr before coming to Edmonton and his stats were better when playing with Hemsky…..Nylander would have been a great fit and was likely going to set up a deal where we send out an extra center for a scoring winger…Lowe has to persue this – damaging our image or not – really, how much worse can it get? If the situation were reversed and Nylander missed out on a contract with the Caps because they had thought he had a deal with the Oilers and proceeded on to plan B – then the Oilers said “we changed our minds”, the PA would be on the Oilers like stink on a monkey.

    13. Marky Narc
      July 4, 2007 at

      I highly doubt that.

    14. July 4, 2007 at

      Oilman said:
      “……Sykora played with Jagr before coming to Edmonton and his stats were better when playing with Hemsky…”

      This is a complete fabrication. Sykora played very little with Jagr, even on the PP Sykora generally was on the other unit.

    15. Steve
      July 4, 2007 at

      If ALL the Oilers have is an SPC I guess the NHL can not be involved within the limitations of the CBA. A written LOI will still entitle the Oilers to some sort of remedy in civil court, right?

      I would love to see the Oilers sue Giles, Nylander, and the Capitals, and if they are successful offer Ovechkin a max-contract as an RFA next year using the Caps own cash.

      That really doesn’t help the Oilers as much as you’d think, or at least it doesn’t come as a free remedy. The Oilers would have to surrender a kings ransom in first round draft picks, were the execution of such a plan successful.

      Curiously, why do you think the Caps were at fault here in this fiasco?

      • Rajesh
        May 31, 2013 at

        I’m with you, Teebz. Wow.Part of the negotiation prcoses is to bargain in good faith. If contract terms were agreed to verbally, and both the player and team have an expectation of a result, then I would guess there’s something the Oilers can do. I don’t know if there is any recourse within the league though. Ultimately, if a player agrees to play for a certain team for a certain term and amount, that player should stop negotiations with any other teams. It’s an unprofessional thing to do from the player’s standpoint.

    16. Steve
      July 4, 2007 at

      “I’m not sure the CBA in that respect applies. Obviously there was no SPC with the Oilers or this would be a pretty open and shut case. The problem, I think, lies in the fact that the Oilers believe they had a letter of intent from Gillis that his client would be Oilers property in the fall. If they are allowed to just walk away from that and sign with another team, then the way teams/agents do business in the Free Agent Frenzy needs to change. I’m not connected in the Philly organization, but I’m pretty sure they didn’t wait for the SPC to be Couriered across the country from Briere before announcing his signing. Suppose after his call-in to TSN he gets a call from another GM saying ‘Listen, Danny-boy, that deal with Philly – you’ve only signed a LOI, right? Not an actual contract? Cause we can make you a better offer!” ”

      Your analogy with the Briere signing isn’t really valid. Nylander never publicly announced or acknowledged his signing with Edmonton, and neither did his agent as far as I can tell. That was all done by the club, and their willing cohorts in the press. The club did that without having a signed SPC. There is a risk inherant with going to press to announce a signing without said signing of an SPC having occurred. Did the Oilers believe that it was,at very least, the intent of the agent to have his client sign with them? I’m sure they did. Does that belief entitle the Oilers to some form of compensation for being spurned at the alter? I’m not entirely sure it does.

    17. cynical joe
      July 4, 2007 at

      To me this smells like the Gretzky/Canuck negotiations before Wayne went to NY. Gillis and Lowe negotiate Nylander’s services, Gillis says we need X, Lowe et al mull it over and then offer X, Gillis acknowledges receiving the Oilers offer, BUT does not respond with SPC. What I can’t understand is why Lowe isn’t on the phone with Gillis 5 minutes after the offer is tendered wondering where the signed contract is, rather than wait patiently, apparantly 24 hours, till they had to read about it in the DC media. While I’d agree with mc that the only thing worse than looking like incompetent fools, would be to actually get Nylander and remove all doubt; this still contributes to the daily drip drip drip of Lowe’s perceived ability to do the job.

    18. sketchy
      July 4, 2007 at

      Just to be clear the scenario I gave about signing Ovechkin away is in jest, it would however be poetic justice if something like that could happen.

      I already posted why the Caps might be liable in this case, read up a few posts.

    19. sketchy
      July 4, 2007 at

      “Looks like it may be pretty blatant. A poster on the Oilers board claims Nylander said in Aftonbladet that he contacted the Caps first and negotiated the deal ON HIS OWN.”

      “If so, I don’t see how the Caps contract is valid according to 6.2 of the CBA. What’s more, if the caps negotiated with Nylander directly and were aware that he had an official negotiator (which they should know)… that’s against the CBA 6.2 as well.”

      From the HFBoards

    20. July 4, 2007 at

      Generally at common law (and under Canadian law) a valid contract under which a party undertakes to sign another contract is enforceable. Such undertakings are generally subject to reasonability requirements but in this case Nylander, through his agent (assuming that Gillis has the powers of an agent or attorney-in-fact) agreed to sign a specific form of contract (a SPC) known to both parties on stated, negotiated terms.

      That’s a knock-down argument. However, it’s not one the NHL is going to buy, because the NHL is bound by the CBA to only recognize one type of agreement. So the Oilers’ remedy here is only through the courts, and they can throw in a claim against Gillis and the Caps for tortious interference with contract while they’re at it. Of course, the NHL will do what it can to prevent teams from suing each other, so expect this to get dealt with through back channels.

    21. cynical joe
      July 4, 2007 at

      so expect this to get dealt with through back channels.

      I certainly don’t disagree with this, but if its obvious to us that this thing is going to be thrashed out behind doors, why would the Oilers make it so public? To protect their shrinking rep as a competently managed organization?

    22. July 4, 2007 at

      About Ovechkin: if he doesn’t sign an extension, he’ll be an RFA next season. If the Oilers blame McPhee at all, and want to get even, they’d save all their pennies and draft picks, and make a huge offer next season. Either you’d get him, or you’d make the Washinton eat up cap space signing him. Too bad he wasn’t an RFA this year, actually. It would have been fun to watch.

    23. Oilman
      July 4, 2007 at

      “Oilman said:
      “……Sykora played with Jagr before coming to Edmonton and his stats were better when playing with Hemsky…”

      This is a complete fabrication. Sykora played very little with Jagr, even on the PP Sykora generally was on the other unit.”

      My bad – should have checked some facts before shooting off at the mouth…..guess I pulled a Tencer

    24. Dennis
      July 4, 2007 at

      I’m with Riv on this one, seems like all teams are giving out an extra year and that’s just the cost of doing business these days. If the Oilers still had say Pronger and Smyth making a combined 12 mill, then maube they’d have enough cache to get a guy to come here and give up a bit of money but that’s not the case and now we’ve got to pay through the nose like everyone else. And if you want them to wait for the perfect signing, then they’re cutting off their nose to spite their face. Someone needed to show up here that could create goals. Nylander probably helps Hemsky murder soft opp and be boosts the PP too. Who gives a fuck what he’s doing in year 3 or 4. We could always buy him out if he was killing us.

    25. mike
      July 4, 2007 at

      did anyone catch the Staufer interview with the player agent this morning? He basically said that the LOI may or may not be binding, depending on the specific wording in it. If it was drafted with the intent of making it binding, then the agreement has been finalized.

    26. Pat
      July 4, 2007 at

      I’m interested in what Sketchy says. I saw that post he referred to as well. 6.2 of the CBA looks interesting on the surface. The hilarious part of the whole scenario is this: if Lowe is successful in enforcing the contract, we’ll be stuck with (a) a brutal contract; (b) a guy who doesn’t want to be here; (c) a guy we won’t really want here (in light of this whole debacle); and (d) an “asset” with a contract that is over market value by about $3 million. That outcome, as brutal as it sounds, would almost be my fantasy come true in terms of spelling the demise of Lowe.

    27. Pat
      July 4, 2007 at

      Sorry, I should add this as an addendum, if it hasn’t come out already:

      Terry Jones and Jim Matheson reported that the Oilers contract proposal was for the same term (4 years) at around 22-23 million. The Caps, as we know, as for 19.5. But at least Lowe kept to his word – he said he’s overpay on the UFA market, and he sure tried!

    28. July 4, 2007 at

      Nylander has apparently admitted that the Oilers had the best offer (but Stabtown’s just too far from Sweden). If the Oilers were miraculously awarded his contract by some court, I doubt there would be any thought on either side of actually holding him to it instead of trading it away. What members of the ownership group have NHL grandsons coming off good years?

      I say the league should make this go away by giving us the first-overall pick in the ’09 draft. Fiat justitia!

    29. CapsFan
      July 4, 2007 at

      No signed contract=no legally enforcable agreement in place. The NHL only recognizes SPCs, not verbal or written letters of intent. How some crazy people can claim that the Caps should be forced to give up a roster player for negotiating in good faith with a UFA is beyond me (although you guys can have Steve Eminger if you want…).

    30. July 4, 2007 at

      CapsFan. what the NHL recognizes and what a court of law will recognize are two completely separate things.

      If the NHL or the Washington Capitals send their lawyers in front of some of the judges I’ve been in front of, and try to tell them that they don’t have jurisdiction over a contractual dispute because the NHL doesn’t recognize a particular kind of contract, I guarantee you they will wish they had never been born. And I doubt that the Alberta judges are any less hard-assed than their Ontario brethren (I sort of suspect the opposite, you know?).

      At any rate, as Colby rightly surmises, there is no chance that a judge would award what’s called “specific performance” and force Nylander to sign with the Oilers. The Oilers would, however, receive damages. Likely not from Washington (unless they knew that Nylander was already sealed and delivered), but from Mylander and/or Gillis, who were the ones who broke the agreement with Edmonton.

    31. July 4, 2007 at

      If it was as easy to solve as puking up the equation “No signed contract=no legally enforcable agreement in place”, the Oilers could just as easy hold up a sign saying “Nylander not a UFA = Nylander not available for signing by Washington”. Someone’s going to have to, y’know, make an actual argument.

    32. kushiro
      July 4, 2007 at

      Question for any legal experts here:

      With respect to the Oilers going beyond the NHL for satisfaction, is there any recourse having to do with negotiating in bad faith? I don’t know much about this concept, but I hear it mentioned from time to time.

      If Nylander and/or his agent either used an agreement-in-principle with Edmonton as leverage in Capitals negotiations, or pursued another option after the Edmonton bid was accepted (similar to a tender process), is there any precedent for a court to find in favour of the Oilers?

      Again, having no legal experience at all, I’m just wondering.

    33. sketchy
      July 4, 2007 at

      For Interests Sake:

      “6.2. Players Contracts. No Club shall enter into a Player Contract with any player and the NHL shall not register or approve any Player Contract unless such player: (i) was represented in the negotiations by a Certified Agent as designated by the NHLPA under Section 6.1; or (ii) if Player has no Certified Agent, acts on his own behalf in negotiating such Player Contract.” From the NHLFA Website.

    34. mc79hockey
      July 4, 2007 at

      Great comments in this thread.

      The problem, I think, lies in the fact that the Oilers believe they had a letter of intent from Gillis that his client would be Oilers property in the fall. If they are allowed to just walk away from that and sign with another team, then the way teams/agents do business in the Free Agent Frenzy needs to change.

      I don’t think that it does. The question is whether or not you can rely on the word of the person with whom you’re dealing. Given that this is presumably common practice in the NHL, I’d guess that most NHL GM’s are comfortable relying on the word of the agents. I don’t see what changes that here, particularly, as seems to be the case here, when it’s the player who screwed the GM as opposed to the agent.

      If you wanted to fix this “problem” to the extent that it exists, you simply have a period of a couple of weeks prior to July 1 whereby teams can negotiate with players and remove the frenzy from it. No contracts become official prior to July 1, although people can reach agreements. That would allow for a more orderly sorting out process, I would think.

      A written LOI will still entitle the Oilers to some sort of remedy in civil court, right?

      I’m not so sure about that, although I admit that I haven’t researched the issue. The distinction that I see is that the common law permits a contract to be formed by a letter of intent, provided that a court can determine the terms and that the parties intended a binding contract to be created. A contract to play NHL hockey can’t be formed in that way. The difficulty that strikes me is that the validity of the letter of intent is presumably based on the fact that the parties have effectively agreed to contract already, something that can’t be said in this sitaution, where the situation requires certain formalities.

      Les – I don’t see how 6.2 of the CBA provides the Oilers with an effective remedy. I believe that the intention of the section is the protect the NHLPA’s right to certify agents. Moreover, even if Edmonton went that route and got the contract struck, I don’t see where the NHL has authority to order the Caps not to renew their offer by faxing it to Gillis (or whoever is representing Nylander at that point).

      If the NHL or the Washington Capitals send their lawyers in front of some of the judges I’ve been in front of, and try to tell them that they don’t have jurisdiction over a contractual dispute because the NHL doesn’t recognize a particular kind of contract, I guarantee you they will wish they had never been born.

      I think that the jurisdiction of the court would be debatable to begin with, because of the existence of clauses in the CBA requiring disputes to be arbitrated. Alberta recognizes those clauses, I believe, although I’m subject to correction on this point. Judicial review would be about the best that the Oilers could hope for in that situation and I’d suspect that this would attract a high degree of deference.

      Given that you appear to be a lawyer Tybalt, would you care to be the guy who actually goes and digs out some law about letters of intent, or their equivalent, in situations where there is a superseding contractual regime that specifies certain formalities? I really don’t want to be the guy who has to do that legwork, although I’d like to know the answer.

    35. Ignatius J. Reilly
      July 5, 2007 at

      The problem Tybalt or any lawyer faces in undertaking the research you’re looking for is that there are few circumstances outside of professional sports in which a contract gets signed where a CBA governs whether or not there is an enforceable contract of employment. Under most CBAs — say a unionized workplace or a government job where Ts&Cs are already in place — the CBA IS the contract, and all the terms are contained therein. As someone new coming in, you don’t get to negotiate anything, like which “branch” you work for or your salary, which is what makes the CBA in the NHL (and the different “branches” thereof) a somewhat curious exception.

      I suppose there could be labour agreements where there are similar circumstances, but even if there were, I’m betting most of these decisions would be made by arbitrators, not the courts, and as such would be somewhat harder to find. I’m no labour lawyer, so I only have a couple of ideas of where to even begin to look, but I doubt I have the necessary skill to refine my searches down to something reasonable that would produce positive results.

      So I think Tybalt has it right — sue Nylander and his agent for breach of contract, and sue the Caps for intentional intereference in contractual relations. But I wonder if the CBA has a privative clause — something to the effect that the decisions of the NHL on whether a contract is valid are final and binding upon the parties to the agreement — or whether they also require arbitration of disputes under the CBA before going to the courts. The latter adds a layer of complexity to undertaking any such proceedings, and the former may leave a judge in the position of reviewing the NHL’s decision based on whether it was patently unreasonable, as opposed to applying the common law of contracts to the case.

      In short, this is very complicated stuff, and I don’t know how well the Oilers could do. I somehow think they’d be more likely to get judgment against the Caps on the tort claim than against Nylander and his agent, especially if the court adopts the CBA as governing whether a valid contract was ever in place.

    36. Bruce
      July 5, 2007 at

      Not that I’m one to bear grudges or anything, but I still haven’t forgiven the Caps for the theft of Bengt-Ake Gustafsson.

      I sure am getting sick of hearing players cite the easier travel in the East as a decisive factor in their choice of teams. It’s way past time the Western Conference owners insisted on something approaching a balanced schedule to equalize travel considerations, not to mention gate attractions. This business of running two regional leagues instead of one (inter)National one is bush league in the extreme.

    37. Michele
      July 6, 2007 at

      I wanted to add a couple things to the mix here because so far everyone has only been talking about the CBA and Canadian law. I am sure the Oilers would press to take this to Canadian courts, but the NHL offices are located in the US.

      One reason Caps fans have had such different reactions (eg. stating, “No signed contract equal no legally enforcable agreement”) is because the laws, as I’ve been told them, in the US are almost completely opposite to what I’ve read here. For one, an agent must be given power of attorney by his client in order for actions of the agent to be enforcable on the client. Secondly, the US has something called the Statute of Frauds which renders verbal agreements for amounts greater than $500 and or 1 year unenforceable. Lastly, an agreement to agree, in writing or not, and even an official LOI are not enforceable, only the signed contract. So, in US law Edmonton has absolutely nothing, even with an emailed promise to sign in the morning.

      I find it hard to believe that the Caps knew anything about Nylander’s agent promising to sign a contract with Edmonton before Lowe called them after they announced the signing. When they got the call from Nylander and resumed negotiations in the morning the most likely scenario is that they assumed the radio stories were premature or just rumour (if they’d heard them at all) and that his negotiations with the other team had fallen through.

      There is also no clear evidence from the partially quoted conversations we’ve seen in the news that Gilles was not involved in the July 2 negotiations with the Caps. It will be interesting, however, to see how this plays out if it is found that the agent did not have anything to do with the final contract. Would his involvement in recieving the initial Caps offer on the first and negotiaing with them until 8PM Sunday night be enough to satisfy that clause in the CBA or does he have to take part in the end product?

      This becomes a bigger mess every day I see it.

    38. Matt
      July 8, 2007 at

      If you had a LOI (e.g, email exchange) but knew, per the CBA to which everyone party to the LOI is also a party, that only a SPC is binding, I don’t see what breaching the LOI gets you in arbitration, which is where everyone goes, such that jurisdiction is irrelevant. I think the issue is whether there is any equity provision built into the CBA – the common law in Canada doesn’t recognize the requirement to bargain in good faith; the UCC or some such in the States might – but some generic provision in there (or elsewhere in the NHL contractual matrix) might qualify an agent, or a player instructing an agent, not answering his cell or email for 24 hours while knowing a team is relying on the agent’s most recent representation to their detriment as conduct deserving of sanction. Ditto another team, dealing with said agent, aware of the circumstances – I’m pretty sure the Caps watch TSN and saw the Oilers Nylander report. I leave it to the experts to tell us if there is any extraordinary hammer in the CBA or the like, which would also likely contemplate remedies, and as none are really being proposed I assume there isn’t any such provision.

      Another thought is that a civil tort suit might come into play – sure, who you play for might not be debateable, but damages stemming from Gillis’ negligent misrepresentation? Could that escape the arbitration provision? (likely not, but I’d have to look at the text) In the main, off the cuff only, that would all depend on how far you can stretch detrimental reliance in Alberta.

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