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GM Hockey » Ottawa Senators » Dany Heatley's 'No Movement Clause': What Does It Mean?

Dany Heatley's 'No Movement Clause': What Does It Mean?

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davetherave

davetherave
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In all of the discussion over Dany Heatley's contract and his No Movement Clause, the actual definition and meaning of the terms seems to have taken second place to the discussion over why Heatley has refused to accept the Senators' recent trade proposal.

I did some research and came up with some of the information from the National Hockey League and NHL Players' Association Collective Bargaining Agreement (CBA).

While we don't have access to the actual wording of Heatley's contract, this information may help people understand how difficult the process can be when both Parties fail to agree.

Another aspect of Employment Agreements and Personal Service Contracts is the provision for an Addendum, a document which may specify whether or not, and under what conditions, the original Agreement may be modified.

Again, not knowing the parameters of the CBA in this respect, makes it difficult to determine whether or not there are/were provisions in the Agreement that might make it possible to modify same.

Further, the question of Resolution in the case of a dispute between the Parties can be addressed in an Agreement, or an Addendum. We have no access to that information as pertains to the contract between Heatley and the Senators.

Regarding conflict resolution, it is customary for an Agreement to contain language that provides for a process to be initiated (such as arbitration or litigation), should the Parties find themselves in conflict due to the perceived or actual failure to honor the Agreement.

From NHLSCAP.com:

NTC - player cannot be traded without his consent; consent not required for waivers for assignment to minors.
NMC - player cannot be traded, waived for a claim by another team, or assigned to the minors without his consent. [This does not protect the player from a buyout.]

From Article 11.8 in the CBA:

( a ) The SPC (Standard Player Contract--ed.) 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.

( b ) A no-move clause may prevent the involuntary relocation of a player, whether by Trade, Loan or Waiver claim. A no-move clause, however, may not restrict the Club's buy-out and termination rights as set forth in this Agreement. Prior to exercising its Ordinary Course Buy-Out rights pursuant to Paragraph 13 of the SPC hereof, the Club shall, in writing in accordance with the notice provisions in Exhibit 3 hereof, provide the Player with the option of electing to be placed on Waivers. The Player will have twenty-four (24) hours from the time he receives such notice to accept or reject that option at his sole discretion, and shall so inform the Club in writing, in accordance with the notice provisions in Exhibit 3 hereof, within such twenty-four (24) hour period. If the Player does not timely accept or reject that option, it will be deemed rejected.


Unless otherwise specified, a NTC/NMC [whichever is applicable] is for the remainder of the player's current contract and is considered to be a full NTC/NMC [as the case may be] with no restrictions.


---

So if the Senators were to file a grievance against Heatley for what they might claim is his failure to honour the Agreement--as some have suggested--or that he might have through his actions, damaged the reputation of, or caused irreparable harm to the business of the team (for example, a negative impact on merchandise and ticket sales), what could the consequences be?

As this drama continues to unfold, and the emotions surrounding the situation become heightened, it may be useful to step back and consider the complexity of a business relationship that has gone so badly wrong.

And with millions of dollars in the balance, not only as far as Dany Heatley's compensation is concerned, but in terms of the effect on the success of the Senators Hockey Club both on the ice, at the box office and all of the ancillary revenues, the stakes are almost impossible to calculate.

There having been so much discussion on so many threads dealing with The Heatley Affair, I thought that opening a thread dedicated specifically to this aspect might be useful.

I'm not an expert by any means on the subject, but having dealt with contracts and business relationships on levels that equate with the dollars being discussed here, I find the entire situation both fascinating and disturbing.

Fascinating, of course, because it demonstrates how much hockey has become an entertainment business; and disturbing, because a sport which should be fun, can turn so quickly into a public spectacle where a professional athlete once adored can become so intensely hated.

Looking forward to the comments of our GM Hockey members.

Acrobat

Acrobat
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A few points to entertain with reference to the above:

  • The CBA will always use the word "may", as it give the leeway for the individual contract to supercede the collective agreement; there has been no indication, however, that the wording of Heatley's contract has been other than the standard NMC (as far as I have seen or heard)
  • Typically, in order to alter the framework of a contract in place, there would need to be the signatures of both parties, or at least the signature of the party waiving the rights granted within the document; the wording of the letter requesting the trade is very important here, as a simple trade request ("I would like to formally request a trade") without defining terms may be interpreted as implicit waiver, whereas a list of acceptable teams included in the actual letter may actually supercede the verbal approval that Murray claims he has WRT the Edmonton deal
  • By the wording (and this has been affirmed by very competent contract lawyers), it could be argued that movement of the player by means other than those listed (Trade, Loan, Waiver) - this is important as one does not have to clear waivers to be sent to the minors during the summer [although returning during the season would require clearing waivers, thus would actually be forbidden by the contract in place]
  • the suggestion that the Senators may sue for damages incurred is a dangerous one, as it implies a "Rules of Conduct" that can be enforced outside of the work setting - this then becomes a human rights issue

This could end up getting extremely ugly, with both sides coming up losers. The sad part is that the NHL has again ended up with egg on its face, and without swift resolution, this issue could end up propagating the image of the NHL as "bush league" in those marginal markets that are struggling to stay above water.

TeamRenzo


Rookie
Rookie
Holy smokes, we need Coles notes for that...

Melnyk has a lot of money and power, if he wants to make a stink about this it could get real ugly for Heatley.

In these circumstances it is usually the man more money that wins, but we will see.

Acrobat

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TeamRenzo wrote:Holy smokes, we need Coles notes for that...

Melnyk has a lot of money and power, if he wants to make a stink about this it could get real ugly for Heatley.

In these circumstances it is usually the man more money that wins, but we will see.

If you are referring to my post, it was just off the top of my head. There is are a ton more issues that are being brought into play, several of which have the potential to change the workings of future player contracts as well as the CBA itself.

To break down all the sub-issues and nuances around each of those would take pages - if this goes to court or arbitration, the volume of paperwork that will be submitted by both sides will be mammoth. And it still won't cover all of it.

I will add that there is no way that any court/arbitrator would uphold a grievance based purely on Heatley's failing to honour the agreement - this is considered part of the game in pro sports, and would fall under "potential expected outcomes".

On the other hand, grieving based on damages may be held to a different standard than a formal court case. There is no question that the Heatley issue prevented Murray from moving freely at draft and UFA days.

But then does Edmonton sue/grieve against Heatley? Or against Ottawa (the purported source of the leak)?

UGLY with a capital U-G-L-Y.

davetherave

davetherave
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Acrobat> agreed...UGLY doesn't even begin to describe this one.

You have two Parties who professed their Undying Love And Devotion just scant months ago with a $45 million dollar six-year, iron clad, solid gold handcuffs and all the trimmings, 'marriage contract'.

Now, the divorce.

Except one Party doesn't want to give the other Party the divorce the way the Parties think they should, because after all neither thought that divorce was even remotely possible.

Melnyk, Murray and the Sens say they are 'disappointed'. JP Barry says the Senators didn't make a 'reasonable' effort to arrange the trade.

Both will make strong cases...especially with another five years and $35 million dollars in the balance.

If this goes to litigation, the points you and I outlined in our posts could be just the tip of the legal iceberg.

As Renzo suggests, Coles Notes won't even begin to help one figure out the possible answers.

If the NHLPA decides to back Heatley--and support Barry's claim--it could get even messier.

We are, more and less, 60 days away from training camp '09-10...mere instants, if and when time- and money-gobbling lawyers get involved.

Acrobat

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What could make it nastier is the fact that a delay until training camp could be construed by either party as favouring the other :

Heatley/Barry et al could argue that the Senators stood to benefit from any delay by taking advantage of Heatley's desire to play in the Olympics. Any delay past the opening of training camp could jeapordize his play in the tournament (besides, if he is suspended, he isn't eligible, correct?)

Murray, Melnyk, et al could argue the converse - that delay prevented them from formulating an adequate business plan (on and off the ice), thus contravening the working arrangement, if not written agreement, between the NHLPA and NHL.

Interestingly, both arguments actually get stronger as the delay progresses, and both are valid arguments.

Both sides have dug in their heels, and both sides have the resources to wait things out - the ones (of those involved) who stand to lose the most on a personal level are actually JP Barry and Bryan Murray. In any scenario, the loser could see a substantial hit to their credibility, and may not end up holding the same clout that they do now.

Take it up a level, and both the NHL and NHLPA have armies of lawyers already working on attacks and counter-attacks; both have too much at stake to sit idly by. This may end up being the biggest test of the CBA that could possibly be conceived; who would have anticipated that a player would demand an NMC, score 140 goals over three seasons, and be rewarded with extreme largesse, including the largest one-year payout in NHL history, then publically demand to be moved, but "only if I like where you send me". Yet, his contract would appear to allow that, at least by the letter of the law, if not the spirit.

One has to wonder how much support Heatley is getting behind the scenes from the NHLPA, and if he is getting support, what the rank-and-file member feels about it.

On the other hand, given the support that Ottawa got from other team owners and GMs during the Yashin holdout, I have no doubt that Melnyk and Murray are getting some encouragement from their colleagues (even if it doesn't translate into generosity at the trade desk).

Maybe this brings up a bigger issue:

Is it time for elimination of guarantees in contracts?

Eliminate the NMC/NTC, and eliminate the guaranteed contract, but also eliminate the whole RFA status: if you are good, you play and you get paid, and if not, then make room for someone else.

Tuk Tuk

Tuk Tuk
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Acrobat wrote:Take it up a level, and both the NHL and NHLPA have armies of lawyers already working on attacks and counter-attacks; both have too much at stake to sit idly by. This may end up being the biggest test of the CBA that could possibly be conceived; who would have anticipated that a player would demand an NMC, score 140 goals over three seasons, and be rewarded with extreme largesse, including the largest one-year payout in NHL history, then publically demand to be moved, but "only if I like where you send me". Yet, his contract would appear to allow that, at least by the letter of the law, if not the spirit.

Im pretty sure that's incorrect.

from wiki-
After a lengthy holdout to start the 1997–98 season, Fedorov, a restricted free agent, signed an offer sheet with the Carolina Hurricanes
worth up to $38 million (with bonuses). The Red Wings matched the offer
on February 26, 1998, ending Fedorov's holdout. The offer broke down
as: $14 million for signing, $2 million for 21 regular season games,
and $12 million for the team reaching conference finals. $28 million
for 43 total games in 1997–98 is the largest single season amount paid
to an NHL athlete. Fedorov helped the Red Wings win their second
consecutive Stanley Cup that season.

Acrobat

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Big T wrote:
Acrobat wrote:Take it up a level, and both the NHL and NHLPA have armies of lawyers already working on attacks and counter-attacks; both have too much at stake to sit idly by. This may end up being the biggest test of the CBA that could possibly be conceived; who would have anticipated that a player would demand an NMC, score 140 goals over three seasons, and be rewarded with extreme largesse, including the largest one-year payout in NHL history, then publically demand to be moved, but "only if I like where you send me". Yet, his contract would appear to allow that, at least by the letter of the law, if not the spirit.

Im pretty sure that's incorrect.

from wiki-
After a lengthy holdout to start the 1997–98 season, Fedorov, a restricted free agent, signed an offer sheet with the Carolina Hurricanes
worth up to $38 million (with bonuses). The Red Wings matched the offer
on February 26, 1998, ending Fedorov's holdout. The offer broke down
as: $14 million for signing, $2 million for 21 regular season games,
and $12 million for the team reaching conference finals. $28 million
for 43 total games in 1997–98 is the largest single season amount paid
to an NHL athlete. Fedorov helped the Red Wings win their second
consecutive Stanley Cup that season.

I stand corrected, as I was going by memory for that - I am quite sure it's the highest salary (not cap hit) as he got $10M in the first year of the contract. And if not, it's certainly one of the highest. (And to be fair, that was the non-salary cap era, although I hadn't framed the statement in that way).

I could have better worded it "...one of the largest one-year salary payouts..."

It doesn't change the point, though.

Tuk Tuk

Tuk Tuk
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No, it doesnt change the point.

This is alot bigger than just the sens and heatley, this could end up being the NHL vs. the NHLPA.

Could Heatley singlehandedly start another lockout?

Acrobat

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I wondered that myself - I hadn't written it because I thought it might sound extreme. [EDIT - seeing as I'm not the only one thinking it, perhaps it isn't so extreme.]

I do think that a lockout is entirely within the realm of possibility, as it likely has become NHL vs NHLPA, behind closed doors at least. I further wonder if Bill Daly's comment (that Ottawa may have a good case for a grievance) was in fact a well-calculated first salvo from the NHL collectively, rather than idle musings, as many seem to have interpreted it.

If it does go to lockout, though, I don't think that the owners will be so quick to give in this time.

When does the CBA come up for renewal - 2011?
Two years is more than enough time to accumulate a war chest and to prepare for battle.



Last edited by Acrobat on Sat Jul 04, 2009 8:30 pm; edited 1 time in total (Reason for editing : clarifying a statement)

Tuk Tuk

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As if people didnt have enough reason to hate him.

What happens in a few year when he's up for a new contract? (assuming he's not run out of the league by then). What GM in their right mind would take a chance on him?



Last edited by Big T on Sat Jul 04, 2009 8:39 pm; edited 1 time in total (Reason for editing : brain fart)

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It all depends on how he performs over the next 5 years of his contract.

Acrobat

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Really?

So if you were a GM, and watched as he scored 45-50 over the next 5 years...you would still take a chance on him?

What if he decides that he wants out because he doesn't like the coach that you bring in?
Or the trainer?
Or the colour of the Gatorade?

Perhaps the latter is extreme, but he didn't get along with at least one coach in Atlanta, and then three coaches in Ottawa.

If you are still thinking about taking him, then you are much more patient than I could ever hope to be.

Tuk Tuk

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he got along well with Hartsburgh atleast Rolling Eyes

Guest


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Acrobat wrote:Really?

So if you were a GM, and watched as he scored 45-50 over the next 5 years...you would still take a chance on him?

What if he decides that he wants out because he doesn't like the coach that you bring in?
Or the trainer?
Or the colour of the Gatorade?

Perhaps the latter is extreme, but he didn't get along with at least one coach in Atlanta, and then three coaches in Ottawa.

If you are still thinking about taking him, then you are much more patient than I could ever hope to be.

While reading this, it just occured to me that maybe Heatley is a critical prick and thats the reason why Hartsburg gave him the 'A'... Its actually the only way it makes sense to me.

Hartsburg knew he had to pander to him...

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