NHL CBA: Dan Cleary and the Verbal Agreement

Joel Auerbach

On Tuesday, tucked into a general Red Wings report by one of the diggers about the pending unrestricted free agents on the Wings' roster and the team's plans for them, Helene St. James tucked in a bit of wording about one of them that opens up a few interesting questions about the nature of what happened during last summer's free agency period.

We're all pretty sure that Dan Cleary isn't going to play for the Red Wings next season. He was a late offseason addition to an already overstuffed team and he couldn't consistently outplay his own injuries to make an impact for the Red Wings. Despite the years of hard work and dedication, the fans by-and-large are ready to move on from Dan Cleary. What's more is that, if reporting at the time was accurate, Dan Cleary walked away from a more-lucrative deal in Philadelphia to take a much smaller payout on a shorter contract with the Wings.

Cleary told us that he had to follow his heart and that his heart led him back to the Motor City. If what St. James reported Tuesday is true, then his heart probably had just a little bit of help from his brain in making the decision.

Daniel Cleary is in a different boat. When he rejoined the Wings on the urging of coach Mike Babcock last September, it was with a verbal agreement that Cleary would be employed by the Wings beyond this season. Given how poorly this season went for Cleary — he was unproductive before becoming a healthy scratch, and then finished the spring injured — he is likely to be offered a front-office job.

The question here is whether they can have such a verbal agreement. It seems the NHL would frown upon promising things to a player which seem to hinge on how little he signs for. The answer is that they might, but there's a lot of problematic burden in stopping it.

I'll make this clear right off the bat: there is nothing in the CBA which expressly forbids a team's front office from discussing a player's future after his contract. There's really nothing expressly forbidding a verbal agreement to hire a guy after his playing days are over or to say you want to sign him for one year and then try to re-sign him the next if he wants to keep playing. None of this is illegal, as long as it's disclosed.

There IS something in the wording that can make such a verbal agreement void though: Paragraph 19 of the Standard Player's Contract

19. The Club and the Player represent and warrant that there are no undisclosed agreements of any kind, express or implied, oral or written and that there are no promises, undertakings, representations, commitments, inducements, assurances of intent, supplements or understandings of any kind between the Player or his Certified Agent and the Club that have not been disclosed to the NHL, with regard to: (i) any consideration of any kind to be paid, furnished or made available during the term of the SPC or thereafter; and/or (ii) and future renegotiation, extension, amendment or termination of this SPC.

If there ever was an agreement that wasn't disclosed to the NHL, the player and the club signing off on the SPC specifically said there wasn't, and any attempt to force either side to abide by a "but he/they PROMISED" agreement is going to face the fact that a contract was signed which specifically states there never was an enforceable promise.

If the verbal agreement was disclosed to the NHL, and they found it problematic, then they would have voiced their issue with it at that time and we might have already heard about it.

If somebody comes out and says that this agreement took place and that it wasn't disclosed to the NHL (say for instance that this tidbit in the HSJ piece is news to the league), then the NHL is stuck with trying to investigate whether there truly was a verbal agreement. They'd also need to see if they could tie such an agreement directly to a player taking a smaller salary (as that would be an Article 26 violation for circumventing the cap).

In simple terms, that's a hell of a lot of work to put into an investigation that would cause a lot of noise and likely wouldn't turn up enough evidence to withstand an arbitration hearing, all to go after a team that didn't really benefit from the contract and a player who's probably one of dozens to have one of these verbal handshake agreements across the league.

Bottom line: is it illegal to negotiate contracts like this? Yeah, probably a little bit. But, if the league isn't going to chase after the Senators and Daniel Alfredsson after the player himself said last year that there was a verbal agreement in place meant to help circumvent the cap, they're almost certainly not going to waste any energy on chasing down this lead.

It's just an interesting wrinkle on the nature of how these deals come together.

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