• Khabibulin Trial Delayed

    by  • July 8, 2010 • Uncategorized • 13 Comments

    Let’s not kid ourselves: this is basically a G20/Nikolai Khabibulin blog. While Dalton McGuinty was telling his cabinet not to worry about civil liberties and invoking the political strategies of Richard Nixon, Khabibulin was on the docket list in a Phoenix courtroom today. It didn’t get very far.

    Nikolai Khabibulin caught a break in Arizona court as he faces impaired driving charges.

    The Oiler’s goaltender appeared in court Wednesday, but had his case put over to July 21, according to the Scottsdale City Court.

    I’m not sure how the Sun concluded that delaying his trial was in his interest. As I understand it, there was a crowded docket list and Khabibulin was too low on the list to have his matter heard. One point of note – I’ve been saying that I don’t think that there’s going to be a plea bargain based on what’s happening, something I’ve based entirely on what little knowledge I’ve accumulated about how the courts operate. I would have thought, if there was a plea here, it might have been dealt with today. Courts are generally pretty happy to deal with consent matters on the date they’re called; you usually get put over only if you’re going to be consuming some court time. Incidentally, it’s not clear to me that the July 21 date is a trial date, as opposed to a date to set a date.

    There’s been a lot of speculation that the Oilers might be able to somehow get out from under Khabibulin’s contract if he’s found guilty of this. I haven’t really been that impressed with the idea. Morals clauses in sports contracts are notoriously difficult to enforce. Where this might get interesting is if Khabibulin is unable to report to camp or if he’s convicted and has to do some jail time during the season. In that case, the player contract is very clear and you don’t have to get into issues about whether his conduct meets some standard. The SPC provides that a team can terminate the agreement if the player fails to render his services hereunder or in any other manner materially breaches the SPC. Failing to attend games because you’re in jail (or because you’re in Phoenix at a trial) would seem to me to be pretty clear cut.

    Would the Oilers do it? I don’t know. I’ve thought that everything Tambellini has done so far has been pretty easy. It’s easier to recognize and clean up someone else’s mistakes than it is your own. He gave Khabibulin a pretty strong show of support at the end of the season. This is, or should be, a contract that the Oilers want no part of going forward. If he were to be handed such an opportunity on a platter, Tambellini would be insane not to grab it. It’ll be an interesting test of managerial competence if it comes to pass.

    Oddly, you could argue that it’s not in Khabibulin’s interest to be cleared medically. If he’s medically unable to play when he’s in jail, the case for material breach probably gets a lot greyer. He might be wise to milk that back problem until there’s been a resolution to his impaired driving charge.

    Clarification: I see that this item has been picked up by both Puck Daddy and Pro Hockey Talk. I seem not to have been clear enough though as they both focus on the morals clause. To be perfectly clear: I think that the morals clause is a dead end. People who have been focusing on it as a possible out are wasting their time, I think. Failing to show up for games though – that’s a breach of contract that doesn’t require delving into the murky waters of what falls below the expected level of conduct. This is a far more real problem for Khabibulin and a far cleaner shot for the Oilers, if Tambo can stomach cutting his 2009-10 MVP.

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    13 Responses to Khabibulin Trial Delayed

    1. OilW30
      July 8, 2010 at

      The problem is that Tambellini signed Khabby to that contract and he’s defended the decision since day one. Sadly, I suspect he just wants Khabby back and he’ll do anything to figure out a way for that to happen. He’s our MVP!

    2. OilW30
      July 8, 2010 at

      By the way, who would declare his status re: medical fitness? The team doctors? His own doctor? It seems like there might end up being be a conflict of interest there either way.

    3. Jon K
      July 8, 2010 at

      I don’t know a heck of a lot about the US criminal justice system, but I wonder if there is a possibility of Khabibulin serving his sentence intermittently around his hockey schedule.

      In Canada you can serve your sentence on an intermittent basis if the term is less than 90 days. Usually the individuals will report to serve on weekends from Friday 7PM to Sunday 7PM, but I think one might be able to schedule it differently depending on one’s work schedule. Might be something to consider in Khabibulin’s case.

      Another thing that’s fun to do is look up his lawyers website, http://www.AZDUI.com. It looks like he found the greasiest impaired driving lawyer he could, despite his considerable resources.

    4. Tyler Dellow
      July 8, 2010 at

      I like this from his website:

      My commitment is to provide quality representation at an affordable fee.

      Or, put another way “Reasonable doubt for a reasonable price”

    5. dawgbone
      July 8, 2010 at

      I don’t see Tambo trying to get out of this deal. He’s convinced that Khabibulin is the right goaltender for this team and that he got him at the right price.

      And that scares the crap out of me. He went for his name and he got it, and by god he’ll get as many games out of him as possible (even if it’s only 50).

    6. July 8, 2010 at

      “He might be wise to milk that back problem until there’s been a resolution to his impaired driving charge. ”

      That was actually my thought too. This has the potential to be pretty ugly if the Oilers choose to terminate.

      He’s much better off on LTIR where he can get paid to do nothing. Or stay in jail.

    7. Deano
      July 8, 2010 at

      The right leg may be getting stronger. He was clocked at over 70mph in a 45mph zone.

      I am a frugal guy and lawyers are on my list of things not to buy on sale (tattoos, surgical procedures and condoms are also on the list fwiw). Yikes.

      If the opportunity to terminate comes to pass, exercising it is another easy thing to do. Not terminating the contract is a one-sided test for managerial incompetence passed.

      Short of termination, permanently going on the LTIR is not a bad place for him for anyone except Katz.

    8. Jon K
      July 8, 2010 at

      Just for interest’s sake, I can say that I read the Edmonton Journal article on Khabibulin today. It was passed on from some court journalist in Arizona, but it was interesting in that it provided most of the relevant facts pertaining to Khabibulin’s arrest.

      Again, can’t speak for how it may run in the US and in front of a jury, but on the fact pattern Khabibulin would have a very reasonable chance of acquittal in Alberta Provincial Court. The main argument would probably be a lack of reasonable and probable grounds for the breathalyzer demand. Subsequently, defence counsel would argue a breach of his s.8 Charter rights and the exclusion of the breathalyzer results under s.24(2). Such an exclusion would leave insufficient evidence for a conviction of impaired driving or blowing over 0.80.

      The argument for lack of reasonable and probable grounds for the demand would be along the lines of:
      - They pull him over simply by virtue of his speeding and that there no signs of impairment in his actual driving pattern (i.e. swerving, unexplainable minor violations, etc). This point could be interpretted in multiple ways. Maybe he just likes to speed because he has a bloody Ferrari.
      - He had “slow” but not slurred speech. English is his second language and arguably slow speech is to be expected.
      - Bloodshot and watery eyes. The officer had no basis of comparison to suggest to him that Khabibulin’s eyes aren’t always like that. It was also late at night (12:35AM) and he simply might have had red eyes after a long day.
      - Failure of the roadside sobriety test. The argument that he was recovering from recent back surgery would be relevant in discarding this sign of impairment.
      - Admission of one glass of wine and odour of alcohol. In Canada this would be enough to sustain suspicion for the officer to give a roadside screening device (mini-breathalyzer) test. Failure of that test automatically gives grounds for the subsequent full-on breathalyzer demand. This wasn’t administered in this case however. Given that the officer didn’t ask when the drink was had (I’m assuming), very little weight should be given to this point. He could have had the drink at 8:00PM with dinner.

      On those arguments one could then suggest that there were not valid grounds for the breathalyzer demand and therefore it constituted an unreasonable search or seizure and a breach under s.8 of the Charter. The Judge might then exclude its results and there would be essentially no evidence left to convict on an impaired driving or over 0.80.

      Sorry for the lengthy run-on but I find it pretty fascinating and I thought I’d share. It’ll be interesting to see how it actually works on “strict” Arizona impaired driving law.

    9. Tyler Dellow
      July 8, 2010 at

      Jon K – As I understand it, that bird has flown. There was a hearing on the constitutionality of the stop and Khabibulin lost.

    10. Jon K
      July 8, 2010 at

      Ah. Must have missed that. Too bad for him I suppose. Hopefully we get some details of the ultimate judgement.

    11. July 9, 2010 at

      As far as not showing up being a reason for voiding the contract, I imagine the more typical route would be for the Oilers to suspend him without pay, putting his contract in limbo until he could show up again… much like the Predators with Radulov.

    12. Pete.
      July 9, 2010 at

      Also from the lawyer’s website: “Mark attended the Rogers School of Law at the University of Arizona, earning Dean’s List honors in his very first semester as a law student.”

      Doesn’t say how things went for the remaining semesters.

    13. 0L
      July 10, 2010 at

      Well your first year of law school pretty well determines your whole legal career (I’m being mostly serious).

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