• Cody Franson’s Tough Argument

    by  • May 22, 2014 • Hockey • 14 Comments

    All the fun hockey court cases seem to have BC ties. One came across my radar today – Cody Franson is suing some guy as a result of a car accident in July of 2008. In the course of his reasons on a motion to strike, the judge laid out Franson’s theory:

    The plaintiff’s action is for damages arising from injuries sustained in a motor vehicle accident on July 18, 2008. At that time, the plaintiff was in the second year of a three-year Entry Level two-way contract with the National Hockey League (NHL) and the American Hockey League (AHL), and was in training camp preparing for tryouts for the Nashville Predators. It is alleged that as a result of the injuries he sustained, the plaintiff was not able to follow his training program and was unsuccessful in his bid to gain a spot on the Nashville roster in September 2008 for the 2008-2009 season. Instead he played in the AHL, earning $62,500 instead of NHL wages of up to $500,000 as well as bonuses. He was successful the following year and played in 61 NHL games for Nashville in the 2009-2010 season. In 2010, the plaintiff signed his second contract with the NHL, this time as a Restricted Free Agent, and he earned a salary of $800,000. In subsequent contracts, his salary increased to $1.2 and then $2 M.

    Basically, Franson’s arguing that he didn’t make the team because he couldn’t train in the summer of 2008 and that he’s sustained losses as a result in the form of contracts that are lower than they’d otherwise be. One of the defence arguments will be that Franson didn’t make the Predators in 2008-09 because he wasn’t good enough, regardless of how much he trained. Let’s look at the Preds defence, shall we?

    Oof. That’s not exactly a plaintiff’s dream. Two Canadian Olympians and a US Olympian, all of whom have received Norris votes. Franson wasn’t called up at any point during the season, which (keeping in mind I know nothing about his injuries) makes it kind of hard to suggest he was all that close to cracking the roster. Franson played 76 out of 80 games for the Milwaukee Admirals and put up a pile of points, so he couldn’t have been that injured.

    Just looking at the ages of Nashville’s defence and their salaries (and knowing what we know about Nashville’s willingness to bury salary in the minors), four spots were gone pretty much before camp opened: Suter, Weber, de Vries and Hamhuis. Zanon basically had two full seasons with the Preds at that point and it’s hard to see them sending him down, even if the money wouldn’t have been that outrageous. That’s five spots gone, with those guys dressing basically every night.

    What remains, therefore, are the sixth spot and the seventh spot. Looking at Nashville’s roster, it seems that they basically used Kevin Klein as the 6D, with Ville Koistenen drawing in whenever one of the top six was injured. I assume, given his age, that Klein was out of waiver exemptions. In any event, Franson played behind him the next year and when Denis Grebeshkov was acquired, he briefly lost his spot, gaining it back when Grebeshkov was injured before sitting out the final games of the playoffs.

    If you’re the plaintiff’s lawyer then, you’re probably basically left to argue that the Predators would have kept Franson as a seventh D instead of Koistenen if he’d been healthy for camp. Now, that’s a very difficult argument to make because Franson’s injuries weren’t severe enough to keep him from playing 95% of an AHL season and, presumably, if the Predators wanted Franson on the team, they would have called him up at some point. It seems far more likely that they thought a young defenceman needed to play a boatload of minutes that they couldn’t give him.

    Now, we have no idea what the evidence will be. For all we know, David Poile and Barry Trotz are going to be called as witnesses and will give evidence that they would have taken Franson if he was in better shape but decided to punish him. On the surface though, it seems like a very tough case to me. It’ll be interesting to see how it pans out.

    Email Tyler Dellow at tyler@mc79hockey.com

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    14 Responses to Cody Franson’s Tough Argument

    1. May 22, 2014 at

      What took him 6 years to bring this law suit?

      Most teams would rather see there prospects play in the AHL than sit on the bench with the big team. It is going to be a hard to prove this case for sure.

    2. Tangotiger
      May 22, 2014 at

      Tyler: can you look at other D who were in the minor league team at the time, and WERE brought up ahead of him?

      That is, were there several opportunities in which he could have been brought up, but wasn’t?

      • Tyler Dellow
        May 22, 2014 at

        Not really – as you can infer from the GP numbers, Nashville’s D was pretty healthy: four guys at 81+ games and a fifth at 71. Realistically, he was competing for a spot with Klein if Nashville wanted him on the ice as opposed to the pressbox. I assume Klein was out of waivers options, which makes it tough. Klein eventually getting a big contract says something about his ability as well.

    3. WesternDP
      May 22, 2014 at

      This is actually somewhat cool for the advanced stats crowd, though I am not really part of that gang.

      Lots of hockey statistics become part of evidence in a Canadian court?

      That could make it just a little bit harder for some writers to dismiss statistics in general.

    4. Meh
      May 22, 2014 at

      You’ve made a lot of good points I definitely don’t want to say you have no valid ones. But I think that you demonstrate that you’re not a lawyer.

      100% no case is tough, even slam dunks can come back to bite you. But you also lay the basis for what I’m going to say in response with the reference to Poile and Trotz.

      I think you got this, but remember, this was a motion to strike a jury notice, not strike the claim or comment on its merit. With a lawsuit like this, it’s better not to have a jury that can be biased by the dollar figures involved, especially when we’re looking at a “victim” who is 6 foot something and muscled ‘crying’ over a fat stack of cash. With a Judge only, way less likely to be biased. So sure juries are harder, but not impossible.

      More important, this isn’t TV, real life lawsuits are about both sides being highly motivated to reach “settlements” not a trial, almost 100% of the time. Something like 95% of lawsuits settle, some even on the courthouse steps. The jury decision just made it a lot more likely that they’re talking settlement positions here. BC is a bit screwy compared to my experience in another province, but I know ICBC lawyers, they like settling claims and avoiding trials just as much as the next guy.

      The standard to win you gotta remember, even if this went all the way to trial (which it won’t) a ‘win’ is based on a balance of probabilities and not beyond a reasonable doubt, this is civil law not criminal.

      So look at it like this, IMHO:

      I think we both agree that the AHL is full of guys who “could” hold their own in the NHL, some of them for a few games with rest time in between maybe, some of them over a whole season. The difference in overall conditioning for some of these top of the line AHL guys from an NHLer is absolutely minute.

      However on the whole, I think you’ll also agree that the overall difference in conditioning between the NHL and the AHL could be measured in percentage point increments overall with the best AHL players but also a difference that is more measurable with most players, the lifetimers or perpetual injury call up guys with limited exceptions are down there for a reason, their game lacks a dimension or they just cannot run with the big dogs.

      A guy who is top tier AHL, but on the bubble because of his fitness, if he was maybe 2 or 3% better and is demonstrating his ability to perform a full shift at his top v02 max, he might just squeak in as the 7th D by having maybe even ONE extra stand out shift in training and exhibitions. Right? You with me, or you think I’m talking sh1t?

      So again, small difference in there, but a guy who is now demonstrated to be a more than a cup of coffee NHL’er, that he could have lit it up in the AHL that year, but not have made it as the 7th or 6th D man after an offseason where he definitely wasn’t hanging out with Gary Roberts doing burpees shouldn’t be that surprising.

      This is an established NHL’er now, he is going to have trainers from more than one team that will no doubt be happy to testify that he was not top notch that fall for camp (he in all likelihood was not) and that based on their experience with him as an NHL player that he COULD have made the team that year. Remember, he doesn’t have to prove he 100% would have, just that his odds would have been much higher.

      On top of the trainers we have, like you said Poile and Trotz, what NHL executive is going to throw him under the bus? They, if called, can pretty easily and without perjuring themselves answer that he “may” have made the team had his conditioning and overall health been better. That’s all he needs.

      On top of them and the trainers, he will also have at least one medical expert that will have all sorts of whizzbang charts and displays to show how his injuries did this that and the other thing and “but for” those, he would have been “XYZ” better.

      Starting to look like less of an open and shut matter?

      So even if not successful, remember as well, this is guaranteed a two or three week trial, the costs of which even if ICBC was 100% successful are not entirely recoverable, so even if they win, they lose.

      So what do most people do in the face of this? They settle. Should that happens here, then Franson comes out ahead and the lawyers for both sides are laughing. They know, like anyone who has wasted time in an insurance lawsuit that most claims can be bought for 30-60 cents on the dollar and certainty trumps risk. So the bigger issue for me, is why didn’t they hash this out before the bills were up where they are now at no doubt over a $100k on the Plaintiff side.

      • Tyler Dellow
        May 22, 2014 at

        Thank you for this. As it so happens, I am a lawyer who practiced in this area for five years. If I was acting for Franson, this would strike me as a significant problem.

        • CM
          May 23, 2014 at

          Hahaha. Tyler you are getting old. When I started reading your blog all those years ago this would have warrented a diferent response.

          • jd
            May 23, 2014 at

            +1

    5. Meh
      May 22, 2014 at

      Where is the motivation for this to go to trial on either side, I don’t see it, this case screams settle it off. If you acted in insurance for five years, as you well know the standard operating procedure is trade your pleadings and then twiddle your thumbs for a year or two of intermittent phone calls while you sort through the discovery material and wax poetic about how much stronger your respective side is. Then when you have the expert reports examined you talk settlement.

      You don’t think that a way more significant problem is that this went through discovery and then wasn’t settled before a b.s motion on a jury notice? If BC is like ON then that notice went out way early in this proceeding. I don’t know when pleadings closed, but I know that as the insurer’s attorney I would have just offered 50% of what my final position was early on in this, and then settled it before wasting a 1/2 day or a day on that motion. Surely you cannot conceive of the team execs or trainers NOT parroting his tune right? I think that makes it a hell of a lot less of an uphill battle on proving damages.

    6. Tyler Dellow
      May 22, 2014 at

      Surely you cannot conceive of the team execs or trainers NOT parroting his tune right? I think that makes it a hell of a lot less of an uphill battle on proving damages.

      They’re going to get cross-examined. They’d have to explain not calling him up at any point. They’d have to acknowledge they thought Kevin Klein was a good player. There other history with young defencemen would be examined. They can say whatever they want – I think cross-examination would be uncomfortable.

      As for why hasn’t this settled – I assume that they have wildly different views about what it’s worth. I could easily see the defence side thinking that this is worth some generals and not much more. If the plaintiff thinks there’s income loss, that’s a recipe for a trial.

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    8. Tom Benjamin
      May 23, 2014 at

      A really interesting case. I agree that the reason it has not settled is that there will be wildly different claims about the employment loss. If the injury did prevent him from making the team a year earlier, the damages could be in the millions. If not, the damages are pretty much nothing.

      I also agree that Franson was a longshot to make it. I think Poile can be forced to admit that. He would probably acknowledge that his thinking even before the accident was to give him a year in the AHL given the roster. Unfortunately for the defense, Poile would also acknowledge that Franson was in a position to play himself onto the team. If Cody had an excellent camp, he would have been delighted to move either Zanon or deVries.

      I think that is pretty unlikely, but far from impossible. I think they will eventually hash out a dollar figure that is based on the assumption he would have made the team and then hash out a percentage of that to reflect the improbability of Franson playing so well Poile is forced to change his plans.

    9. beingbobbyorr
      May 24, 2014 at

      Does it matter if they’re trying to get a big payday directly from a rich defendant (who may be a poor driver), or a deep-pocketed insurance company?

      I wonder if either side would try to use simple actuarial data . . . . . i.e., Given Franson’s age in 2008-09 and his 79th overall draft position (of 230 total) in 2005, would the previous N years of NHL history of Defensemen of approximately the same age and draft position making the big league be a meaningful point for either side?

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