Visnovsky v. The Anaheim Ducks Hockey Club: Why Isles Fans Should Be Worried (or, what else is new?)

The general sentiment on the internet has been that Lubomir Visnovsky’s grievance is likely to fail (a dissenting view is here). However, after examining the CBA, I’m having a hard time imagining why the grievance wouldn’t succeed (I hashed out some of these points in the comments to this post).

Disclaimer: the text of no trade clauses – including Visnovsky’s – is not publicly available nor do we know the details of any communications between Visnovsky’s agent and Anaheim. These things can have obvious legal consequences. But if people waited for all the facts before offering their opinions, there would be no internet, right? So here it goes.

First some basics: Trading a player means that the player's contract with his existing team is being transferred -- or, to use the legal term, assigned - to a different team. The result is that each the new team steps in to the shoes of the old team, and inherits all the rights and obligations under that contract. This includes the team's rights to the player's services and the team's obligation to pay him his salary. This concept is built into the CBA and individual player contracts.

A no-trade clause is simply a contractual restriction on a team's right to assign the contract to another team. The CBA allows such clauses, but doesn't say a whole lot about them. The only provision regarding no trade clauses in the current CBA is 11.8(a). It reads as follows:

The SPC [Standard Player Contract] of any Player who is a Group 3 Unrestricted Free Agent under Article 10.1(a) may contain a no-Trade or a no-move clause. SPCs containing a no-Trade or a no-move clause may be entered into prior to the time that the Player is a Group 3 Unrestricted Free Agent so long as the SPC containing the no-Trade or no-move clause extends through and does not become effective until the time that the Player qualifies for Group 3 Unrestricted Free Agency. If the Player is Traded or claimed on Waivers prior to the no-Trade or no-move clause taking effect, the clause does not bind the acquiring Club. An acquiring Club may agree to continue to be bound by the no-Trade or no-move clause, which agreement shall be evidenced in writing to the Player, Central Registry and the NHLPA, in accordance with Exhibit 3 hereof.

The first section of the provision is simply saying that NTCs are only available to UFA eligible players and players that haven't reached that status can negotiate NTCs as long as they don't take effect before they become UFA eligible (fore example, as per capgeek, John Tavares's contract has such a clause but it doesn’t take effect until 2016).

The bolded part of the clause is supposed to be relevant to the Visnovsky situation. It provides that if a player with an NTC is traded before the NTC is effective (because the player is not yet eligible at the time of the trade), the acquiring team is not subject to the NTC unless is agrees to be bound by it.

This is the situation that Visnovsky found himself in. He signed a five year contract with the Kings in 2007 with an NTC that didn’t go into effect until July 2008. He was traded to Edmonton before July 2008. It seems that Edmonton took the position it wasn’t subject to the NTC pursuant to under 11.8 but nonetheless agreed to be bound by the clause. (It’s actually unclear whether Edmonton was correct that 11.8 applied to Visnovsky. The rule in 11.8 is about players with delayed NTCs due to their not being UFA eligble. But Visnovsky was 31 when he signed his contract with LA). Accordingly, when Edmonton traded Visnovsky to Anaheim in 2010, Visnovsky had to agree to the trade on account of the NTC.

So why does Anaheim think the NTC he negotiated with LA did not apply to the trade to the Islanders? Why did they think that the NTC disappeared? Two reasons have been cited but neither seems to hold water.

Some have argued that Visnovsky lost his NTC under the language cited above when he was traded to Edmonton before his NTC took effect. But that’s not what the language says. The language in the CBA provides a very narrow limitation on an NTC. It merely states that "the acquiring club," namely, the club that acquires the player before the NTC kicks in (in this case, Edmonton), can decide whether or not to be bound by it. Does a club that acquires the player later (in this case, Anaheim) have the same right to accept or reject the NTC? The CBA does not say.

Note that this doesn’t mean that the CBA is "ambiguous." The CBA also doesn’t say that teams have to treat their players to free ice cream after wins. But this doesn’t mean the CBA is ambiguous on the question of ice cream. The failure of the CBA to provide for how the NTC is to be treated in a subsequent trade means the default rule would apply. And that means that the NTC restriction should transfer to Anaheim like any other rights or obligations under the Visnovsky contract.

Another argument I have heard is that Visnovsky lost his NTC when he agreed to waive it to be traded to Anaheim. This argument has no support in the CBA at all. Section 11.8 doesn’t say anything of the sort and there is nothing anywhere else in the CBA that suggests it. And in fact, there are many examples of players retaining their NTCs after consenting to a trade pursuant to their NTC.

For example, Brad Richards had an NTC when he signed with Tampa Bay, agreed to a trade to Dallas and was reported to still have an NTC before filing for free agency. Scott Gomez’s contract with the Rangers had a no trade clause yet he (Thank Bossy) continued to have a no trade clause after he was sent to Montreal, which supposedly is the reason he didn’t wind up Rolsting it on the Island. Another example is Dany Heatley, which some have cited as support for Anaheim’s position. He had an NTC when he was with Ottawa, which he aggressively asserted to prevent a trade to Edmonton. Yet, after agreeing to be traded to San Jose, he was reported to still have an NTC when he was later traded to Minnesota.

All this raises the question: Why did Anaheim think he didn't have NTC? It could be there was something in the terms of the NTC itself relevant to the matter. Or it could be that Anaheim made a mistake – they may have thought that they had the same right to ignore the NTC that Edmonton had even though the CBA gives them no such right.

Whatever the result, it's hard to fathom what Garth Snow has been thinking. Is there is a Plan B? Does he think that Anaheim's position is unassailable? Does he have some assurance from Visnovsky that he will agree to the trade to the Islander regardless? Or is Plan B this going to be invited to camp in September?

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