Take any case in court, be in civil or criminal, and the first issue presented to a jury at its selection is the “burden of proof.” That burden is why close cases have a victor and loser, as well as why seemingly guilty individuals are presented with a “not guilty” verdict. In court, we find three burdens. Typically, a plaintiff or petitioner (the one suing or prosecuting) has a burden either (1) by a preponderance of the evidence, a 51% standard or tipping of the scales (common in civil cases), (2) a clear and convincing standard, one that is more than a tipping of the scales but less than, (3) the beyond a reasonable doubt standard, one that exists in criminal matters.
Arbitrations are generally no different. An arbitration is essentially an alternate form of dispute resolution. Rather than going to court, parties contract to litigate their disputes in arbitration and before an arbitrator.
Fast forward to the Ilya Kovalchuk cap circumvention case and the CBA.
Here is what we know: (1) The NHL has rejected the contract, (2) The NHLPA has filed a grievance (thus making them for practical purposes the plaintiff / petitioner), and (3) the matter has proceeded to arbitration, commencing today.
What don’t we know, or better stated, what have few asked? Who has the burden of proof and what is that burden?
I admit when I first read the CBA, I grew a gray hair. As someone deeply familiar with litigation and specifically trial work, I shuttered to think how a bunch of legal minds could get together and not establish within their own rules a clear burden of proof standard that would help an arbitrator decide contested cases. I then re-read the applicable provisions (with Surly on the phone with me) and realized that within its ambiguity lies the answer, one that gives the arbitrator much discretion and appears to favor (in this case) the NHL.
Let’s look at article 26.13 (emphasis added):
“26.13 Enforcement by the System Arbitrator.
…(b) The System Arbitrator may find a Circumvention has occurred based on direct or circumstantial evidence, including without limitation, evidence that an SPC or any provision of an SPC cannot reasonably be explained in the absence of conduct prohibited by this Article 26. The investigation and findings of the Investigator pursuant to Section 26.10 shall be fully admissible in any proceeding before the System Arbitrator under this Section 26.13.”
Let’s work from the bottom up. What does section 26.10 state and who is this investigator?
(a) The Commissioner of the NHL or the Executive Director of the NHLPA (the “Investigator”) may, sua sponte or based upon reports or complaints received by either, commence an investigation regarding whether a Circumvention has occurred.”
So, the investigator is whomever did the investigation. In the Kovalchuk case, that would be the NHL Commissioner, i.e, Gary Bettman.
What are these “findings” to which 26.13 refers? For that, we read 26.10(e):
“(e) At the conclusion of his investigation, the Investigator shall issue a written determination regarding whether or not, in his opinion, a Circumvention has occurred. The Investigator’s determination shall not be binding, but it shall be fully admissible in any hearing commenced before the System Arbitrator pursuant to Section 26.13 below.”
The “findings” are the Commissioner’s written determination regarding circumvention. In this case, the NHL wrote an investigative report as to why there was a circumvention. Why that has not been published and public record is a tangent I will not go into now though when this matter has concluded, I do intend to make a demand to the NHL for same.
Going back to 26.13, we now know that the Commissioner’s actual written determination of why there was circumvention shall be admissible in the arbitration. That, my friends, is called stacking the deck. The Arbitrator doesn’t get to look at the circumvention issue with fresh eyes. He gets to consider why the league came to its decision and, more importantly, must consider it. Of course, what weight he gives to it is not explained in the CBA and therefore he may be able to give it tremendous weight or none at all.
Now comes the important part. Take a sip of your beer, I’ll wait…
Section 26.13 tells us that “direct evidence” is enough to find circumvention, but it’s not necessary. The same section explains that circumstantial (indirect) evidence is also enough but again, it’s not necessary. “Without limitation”, the arbitrator can find circumvention if “evidence that an SPC or any provision of an SPC cannot reasonably be explained in the absence of conduct prohibited by this Article 26.”
There is your burden of proof. It’s intentionally vague. In the Kovalchuk Cap Circumvention case, if the NHLPA cannot reasonably explain why any aspect of Kovalchuk’s contract complies with the CBA, the arbitrator can then find that “lack” of “explanation” is enough to find circumvention. Let’s apply this to real life. Imagine if it was a crime to have carnal intentions toward Heidi Androl. Assume further that Surly is being accused of same. If Surly cannot reasonably explain why he does not have the hots for Heidi, then he is convicted. He is literally guilty unless he proves his innocence.
Can the NHLPA reasonably explain that 5 years at the tail end of a contract at the league minimum doesn’t violate the CBA? What do you think? I think with that daunting burden of proof, the player’s association may stand about the same chance as Surly. Time will tell…
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