Getting to Know the CBA - Episode 11: Article 17 - Grievances, Arbitration, Impartial Arbitrator

Stevie Roxelle - @stevieroxelle - Biscuit Fox

If you've read every episode of Getting to Know the CBA so far, congratulations, you've covered 129 PDF pages and 109 printed pages of the 540/517 page document. It's not a short process, which is why we're taking it slowly. This week, we roll into Article 17. This one is relatively short, covering only six pages. Importance-wise, these six are fairly high, as they're one of the primary reasons collective bargaining exists.

You can find the entire CBA here (PDF)

Article 17: Grievances, Arbitration, System Arbitrator

Perfectly-clear contracts are a rarity; perfectly-clear 500+ page contracts are a pipe dream. As such, one of the benefits of collective bargaining is that it allows both sides to clearly define how dispute resolution is going to work under their agreement. The standard for these things (and many consumer agreements nowadays if you bore yourself with reading the fine print in your credit card applications) is arbitration in the event that there's any dispute about what the agreement means or whether somebody has actually followed it.

Arbitration is something of a cleaner process where an impartial third party who is held to certain standards will decide on the dispute rather than getting the entire process embroiled in more-official legal proceedings, which can take up insane amounts of time and money, not to mention can really get on the nerves of judges who would rather that collectively bargaining entities get their shit together. Lawsuits can call into question the entire process and can draw from vast and sometimes arcane legal precedents. Arbitration is designed to work within the system to clarify it.

17.2-17.5 Initiation, Filing, Grievance Committee, Arbitration

Only the NHL or the NHLPA may file grievances, as they're the only two groups who actually signed the CBA. Grievances have to be filed as timely as possible and absolutely have to be filed within 60 days of the event which caused the grievance or within 60 days of facts coming to light which create the grievance (and yes, even this can be grieved).

If a grievance is filed according to the rules (the email is sent correctly), the receiving party has 10 days to answer in detail any admissions or denials about what they're disputing.

Both sides are compelled to meet every two months to go over any new grievances (but not if there aren't any to go over). When they do meet, they exchange notes 7 days prior to the meeting about their "respective legal and factual positions" on each disagreement. These arguments can include settlement offers, but any such offers are not admissible if the case proceeds to arbitration.

If the two sides can't make a settlement at the Grievance Committee, the grieved party may elect arbitration to settle it.

17.6 Selection of Impartial Arbitrator

There shall always be one impartial arbitrator and the number of impartial arbitrators shall be one. Zero not being the number of impartial arbitrators serving unless either side has notified the one existing arbitrator and the other side that they wish to replace such arbitrator, accepting that the number of impartial arbitrators will be renewed to one within 90 days. Two is right out.

If there's a grievance that takes place while arbitrator is appointed, an ad hoc arbitrator will be selected using the Labor Arbitration Rules of the American Arbitration Association currently in effect. That person decides whatever cases he/she is selected to decide, but is replaced as soon as both sides select a new permanent arbitrator, who has to be a member of the National Academy of Arbitrators.

17.7 Procedures for Determining Fitness to Play

You'll recognize these procedures both from Article 16 and from Paragraph 5 of the SPC. We covered this in detail in Episode Six of this series, but here's the real quick-and-dirty rundown:

The team doctor makes the call on a player's status, but the player is entitled to a second opinion by his own doctor. If his doctor disagrees, then they bring in a third unaffiliated physician to make the final call on whether the player is indeed healthy enough to play.

17.8 Pre-Hearing Disclosure Statements

30 days before the hearing, the party which goes first will give the other side Disclosure Statements which goes over the statement of the issue(s), factual background, theory of the case, witnesses names, and any documents the party intends to submit as exhibits. The responding party has 10 days to give their response. The Disclosure Statements are not shared with the arbitrator unless there's a disagreement about whether everything is sufficiently disclosed (and then only if both parties agree). The purpose here is to avoid lawyer-show last-minute surprises to circumvent the spirit of arbitration.

17.9 Hearing

Witnesses need to actually show up to the hearings unless both sides agree they can give testimony by phone. Hearings will take place in either New York or Toronto, but can be moved to a city that makes it most convenient to work around the current location of a player for whom the hearing is held provided that he's with his team during the season. Otherwise, both sides can agree to move the hearing to a different location.

Once it's over, the record of hearings will be closed unless the arbitrator orders it to remain open.

17.10 Hearing Dates

Parties will schedule five days per month to hold hearings and will get together every May & October to slot grievances into dates selected by the Impartial Arbitrator. Unless a hearing is expedited by necessity, each side alternates in selecting the next grievance to arbitrate. The NHL and NHLPA must select grievances they've filed which are over 18 months old to arbitrate first before moving on to other problems.

17.11 Medical Evidence Procedures

This subsection references down to Exhibit 24, which lays out a whole host of rules which essentially boil down to "doctors are busy and everybody is busy and doctors may have to speak for a long time so we can do this by submitting their remarks via video or paper or in-person and that if one side wants a doctor there, they have to make sure to provide for it to happen."

17.12 Transcripts

Both sides share the burden of paying for transcripts unless one side wants expedited copies. These are solely for use in grievance hearings. It is explicitly forbidden to share transcripts to the public or press or to otherwise break confidentiality.

17.13 Arbitrator's Decision and Award

The Impartial Arbitrator has 30 days to render a final decision which is binding, but must remain within the scope of the CBA. An Arbitrator cannot change the way the CBA or any SPC is worded, but can only interpret for the decision at hand.

17.14 Time Limits

One side can't simply delay until a time limit runs out to end the discussion on a grievance. If a time limit runs out, the grieving party can move to whatever the next step in the process is.

17.15-17.16 Fees and Costs, Payment

Each side pays for its own lawyers, transport, witnesses, and other like items, but both sides share the other costs (like paying the arbitrator). Any monetary awards must be paid within 30 days or a mutually agreed-upon timeline.

17.17 Expedited Arbitration

With good cause, a side can request and be granted an expedited hearing.

17.18 Transfer of Grievance to System Arbitrator

Here the difference between the Impartial Arbitrator and the System Arbitrator is laid out. These are two different positions with different responsibilities. The System Arbitrator is somebody with significant financial experience who is responsible for understanding Articles 49 and 50. If either the Impartial or the System Arbitrator (or either party) decides that those two articles' interpretation will be impacted, the System Arbitrator will hear the case.

- - -

That's all for this week. Next week we'll tackle Article 18, which gives Brendan Shanahan all of his authority to make hockey fans mad at him.

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