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When is a Circumvention not a Circumvention?

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Much ado has been flung about lately regarding the Blackhawks shipping overpaid benchwarmer Cristobal Huet to a Swiss league to take his salary off the club's NHL books.  Chicago will still pay Huet his $5.625 million, but for all intents and purposes, he's being swept under the carpet.  This leaves many people to wonder how the Kovalchuk deal was a circumvention of the salary cap, but this roster move isn't.  Jeff Marek at CBC Sports caught up with Commissioner Gary Bettman at the World Hockey Summit and asked him just that.  Here's what Marek wrote: 

At the Bettman question and answer session, I asked the commissioner whether he considered the Cristobal Huet transfer to a Swiss club — and the subsequent eradication of his near $6 million US cap hit from the books — to be a circumvention of the salary cap? To which Bettman responded that this is not circumvention but rather "cap maintenance" which every team has the right to do.

Bettman added these types of transfers are something that should be looked at closer. I'm not sure I buy this line of logic. Wasn't New Jersey simply exercising "cap management" when putting together a very creative contract for Kovalchuk?

I recommend reading the whole article for more about the World Hockey Summit, NHL Participation in the Olympics, and the NHLPA's appointment of Donald Fehr as their new executive director.

The point Marek makes is correct: both instances, a team is using a creative loophole that allows them to spend over the cap to benefit the team; a position against which the league took a stance in the Kovalchuk arbitration case as evidenced by this line in arbitrator Richard Bloch's findings:

 ...thus increasing available payroll room for the club and, ultimately, argues the League, serving to defeat the very protection of competitive fairness within the League that the parties negotiated in 2004-'05 by way of the Team Payroll Range provisions.

Further down Bloch's findings, he states this, in regards to competitive balance and the Spirit of the CBA:

At risk, it contends, is the ability of the League to ensure competitive balance among clubs.  If this claim has merit, it is a significant element that may properly be considered by the League in rendering its decision to accept or reject the SPC.  It is true, as the Association notes, that the words "competitive balance" nowhere appear in the CBA.  But the core and character of the negotiated Team Payroll Range System provisions of Article 50 are directed to precisely that goal.

Basically, the league contends, and Bloch agrees that allowing a system by where a team with the assets to do so to spend more than they should to make themselves a winner is a violation of the spirit of the CBA.  This is exactly what New Jersey tried to do with Kovalchuk and what Chicago is doing with Huet's contract.  The difference is that New Jersey was practicing addition by addition and Chicago is practicing addition by subtraction of a negative.

While I still believe that rejecting the Kovalchuk contract was a bad decision that gave the league too much gray area in deciding the fate of player contracts for reasons beyond what's right and fair, I do think doing anything to directly punish the Hawks for their treatment of Huet would create just as big an injustice the other way in telling clubs that the league is the sole discretionary partner when it comes to just about every decision made.

The argument that Huet is somehow a victim here who is being mistreated is partially correct in that he's a victim of circumstance that sees the trend in the NHL moving away from paying goaltenders high-dollar contracts, but remember that Huet has to agree to allow himself to be shipped to Europe and that Huet reasonably should have known the risks of the contract he signed when he signed it.  I stated in a previous post that taking away contract guarantees would be bad for the league in that it would allow players to destroy their own goodwill with contract holdouts and teams to drive fans or free agents away by bullying players into renegotiating contracts and I stand by that.  However, for once, we get to say that the vague wording about NHL discipline could work in everybody's favor if we wanted it to.

You see, a guaranteed contract is not truly guaranteed and that makes all the difference when looking at the cap circumvention the Hawks are doing versus the cap circumvention the Devils and Kovalchuk tried.  The CBA has two outs that both sides could exploit if Huet really wanted a shot at playing in the NHL for less than his current salary.  Section 11.15 of the CBA on player contracts states that if a club defaults on a contract, by not paying anything due to him, the player can register a default complaint with the league and, if nothing is done in 14 days, become a free agent.  11.15(b-e) gives the league an additional seven days to fix that by finding a club that will take the contract, but it clearly states that it is a league OPTION to do this.  Bottom line is that the Hawks could simply not pay Huet and he could become a free agent.  Of course, if you think the NHLPA should have a problem with what they're doing now with Huet, wait to see how they'd react to this tactic...

Option 2 lets Huet play the bad guy.  Exhibit 1 in the CBA (Standard Player Contract) states that if a player refuses play his contract, the team may fine him, suspend him, or terminate his contract.  Once again, vague league rules give the options to the league that range from expelling him forever to doing nothing, as was the case when Petr Sykora refused to report to the Minnesota Wild's AHL affiliate Houston Aeros last season and cleared unconditional waivers, making him a free agent.  What makes Cristobal Huet less of a victim in this situation is that he has agreed to his fate.  He may not be happy about it, but I've seen no indication that he's worked with the Hawks or the league in trying to explore either of the other options that would give him a shot to keep playing in the NHL.  I have a feeling that the league would love to let Huet out of his contract if he simply asked; he just can't have his cake and eat it too.  He can make $5.6M in Switzerland or he can take his chances to prove himself on the free agent market like everybody else.

The Players' Association ultimately shouldn't be happy that there's a $5.6M goaltender going to a foreign league, but this isn't a fight for them to pick, unless they want to pick it from an angle that the money going to pay Huet in Europe should in no way be counted as part of the players' share when calculating how much escrow they'll have to give back next year.   I think the league should agree to this, as it does prove to be a financial disincentive to offering large contracts you plan to hide if they don't work out.  That may be a roundabout way of doing it, but every more direct way crosses the line between trying to maintain competitive balance and outright trying to force it on teams.   Chicago's punishment will be off the books here as it should be; it will come in the form of many free agents' second-guessing whether they want to voluntarily sign a contract with the organization that may try to hide your salary in Europe if they make a change to their team's strategy that doesn't include you or your albatross contract and it will come in the form of what essentially constitutes a $5.6 million fine for moving Huet to Europe.