Thursday, June 30, 2011

Predators Vulnerable in Qualifying Offer Dispute

There is confusion and consternation that has arisen because of a possible defect in the qualifying offers that the Nashville Predators extended to restricted free agents Sergei Kostitsyn, Matt Halischuk, Nick Spaling, Cal O'Reilly, along with minor league players Linus Klasen, Chris Mueller, and Andreas Thuresson. In question is if the qualifying offers were tendered by the 5:00 deadline on Monday.

According to the Predators front office, they were unaware of any problem and had complied with the procedures to qualify the RFA's. The qualifying offers were sent by FedEx at 4:00 on Monday. However, the offers were not faxed to the players, their representatives, and the Players Association by the 5:00 deadline on Monday. As such, the offers were not delivered to the players until Tuesday, after the deadline.

In question then, is whether the offers were considered "tendered" when FedEx picked them up for delivery.

The NHL released a statement late yesterday confirming that there was not a problem in the League office with the qualifying offers, and they were considered in compliance with the CBA.

The NHLPA has filed a grievance, stating the contracts were not "tendered" in a timely manner since the players and their representatives did not receive them until after the deadline. The PA has asked independent arbitrator George Nicholau to give an expedited ruling as to whether the since free agency will begin on July 1.

Here is the qualifying offer sheet that RFA's receive:


Name and Address of Player:

Name and Address of Player's Authorized Representative:


Pursuant to Section 10.2 of the Collective Bargaining Agreement (the "CBA"), [Club]

hereby makes [Player] a Qualifying Offer of $__ in the NHL and $___ in the AHL (if

applicable), or whatever other minimum amounts are necessary to preserve the Club

rights contemplated in Section 10.2(a)(ii) of the CBA. This Qualifying Offer is not open

for acceptance until July 1, 20__.

If you are eligible for salary arbitration, this Qualifying Offer is subject to that right.






Agreed To and Accepted By:

____________________________ ______________

[Player Name] [Date]

cc: NHL Players' Association

     NHL Central Registry
Seems pretty straightforward, doesn't it?
We both know that this is not the first time as a team that the Predators have qualified RFA's; nor is is the first time David Poile or his staff have done so. So what is going on?
Here is the relevant section from the CBA (Section 10.2):
(ii) In order to receive a Right of First Refusal or Draft Choice
Compensation (at the Prior Club's option) with respect to a
Restricted Free Agent, the Prior Club of a Restricted Free Agent
must tender to the Player, no later than 5:00 p.m. New York time
on the later of June 25 or the first Monday after the Entry Draft of
the final year of the Player's SPC, a "Qualifying Offer", which
shall be an offer of an SPC, for one League Year, which is subject
to salary arbitration if such Player is otherwise eligible for salary
arbitration in accordance with Section 12.1, on at least the
following terms and conditions:
So, our dispute is over whether the Predators "tendered" an offer to the players by sending the contracts out the door with a courier.

Now, I'm not a lawyer, nor do I play one on TV, but here is the legal definition of "tender":
"to extend for acceptance or consideration (vt); to make an unconditional offer of payment or performance with a manifestation of willingness and ability to follow through (n)."
Obviously, the Predators made an offer to the players by sending the qualifying offer sheet. The question that the arbitrator has to determine is if it was legally "tendered" by the deadline by virtue of having a courier pick it the offer sheet. The Predators and the League are saying that it is tendered, and that has been an acceptable and utilized practice in the past. If that is so- if precedent has been established- then I believe the Predators have safely qualified their players.
If, on the other hand, that is not the precedent and the offers are deemed invalid by the arbitrator, then it is a gaffe of major proportions by the Predators, and one frankly that I would find very difficult to understand.
As for now, the matter rests with the arbitrator. The decision will come quickly so as to not infringe upon the ability to negotiate in free agency by the players in question.
Hopefully the arbitrators ruling will not leave a tender spot in the Predators roster.

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