Tomas Tatar’s Arbitration Hearing with the Red Wings Will Bring the Parties Closer, Could Push them Farther Apart

The morning of July 20th has come and with it is the scheduled time for the arbitration hearing between the Red Wings and restricted free agent Tomas Tatar. If this is allowed to finish, it will be the first completed arbitration case that the Red Wings have seen since Jiri Hudler was granted a two-year deal in 2009 which he delayed by playing in the KHL one season.

Last year, the Wings began the process with Petr Mrazek, but ended it prematurely with a two-year contract which canceled the rest of the show. As always, we’ll be on contract lookout all day to see if we’ll get the same here, but wanted to share a primer on how the process works.

The Decision Comes 48 Hours Later and is Binding

First and foremost, we can skip to the end. If the hearing goes through today, it will also likely conclude today (it’s possible to be re-opened, but circumstances for that happening are rare and it can not be extended). Once the hearing finishes, the arbitrator will have 48 hours to deliver a decision. Both sides will be held to the arbitrator’s decision at this point.

The basic procedure is that both sides have a total of 90 minutes to present their arguments, including opening statements and rebuttals. This can be extended by 10 minutes per side (15 if the arbitrator is a rookie) in the event that one side brings up new material during a rebuttal.

Since Tatar is the one who elected arbitration, his side will go first. He will be represented by the NHLPA and his agent. The Wings will have themselves and a league representative at the table.

The Arguments

The way the whole process starts is that 48 hours prior to the hearing, both sides share with the arbitrator and each other a summary of their argument and requested salary (these are called briefs, but telling people that both sides are sharing their briefs makes me giggle too much). This is where we got the ask-and-offer of 5.3M from Tatar and 4.1M from the Wings.

Also, the “briefs” are limited to 40 double-spaced pages by the CBA, not including “indices, tables of contents, and exhibits”, which kind of sounds like an oxymoron at this point.

These lay out the general argument that’s to come. In terms of what exactly the sides can bring to the table? Well let me just lay out CBA Article 12.9(g)(i):

Subject to the limitations set forth in subsection (iii) below, the parties may present whatever witnesses, affidavits, documents and other relevant evidence they choose to present at the hearing. The Salary Arbitrator, on behalf of any party, or on his own behalf, may call witnesses or request documents or other evidence as he deems necessary to resolve the dispute. The Salary Arbitrator in his discretion shall be the judge of the relevancy and materiality of the evidence offered and/or the weight, if any, to attach to any evidence and shall not be bound by any formal legal rules of evidence. All evidence shall be presented in the presence of all the parties, unless a party is in default, having failed to appear for the hearing, or has waived his right to be present. Statistical evidence asserted in a party's affirmative case must be included in such party's brief in order to be admissible.

(emphasis mine)

The Evidence

The non-legalese version of this is that it provides pretty wide latitude for presenting one’s case in terms of ways to present evidence. The next table here shows what specifically is allowed or disallowed as evidence though (taken from the two CBA subsections which follow the quoted one above)

A few points:

• There are a few references to “comparables” - this is taken from a list compiled by the NHL and NHLPA each year and updated prior to the arbitration hearings; only players on that list can be selected to be discussed
• Despite everybody’s frustration at the Wings’ apparently asking to pay Tatar less than they pay Justin Abdelkader, mentioning his contract is a specific no-no in this case.
• No newspaper columns also means blog posts, so neither Helene, Ansar, nor WIIM can play any part in helping the arbitrator decide how much to pay Tatar (thankfully)
• I personally like that it’s specifically not allowed for a team to even mention a possibility that they literally couldn’t afford a player in arbitration, either financially or cap-wise. It’s not the arbitrator’s job to give a crap about those things.

Walk-Away Rights

I have to throw this in there even though it will never happen. If the arbitrator awards Tatar more than $4,084,218, the Red Wings would have the option of deciding to walk away from the contract and simply make Tatar an unrestricted free agent a year early. This would be really dumb, but it’s in the CBA so it’s in this post.

The Potential Damage

If you’ve been around, there’s a good chance you’ve already seen it said that arbitration is not a friendly process. The player has to sit right across from the GM and listen to the guy tear him down to a third party in order to argue that he’s not worth that much money.

I’m sure most players know it’s just a business, but there’s always the infamous story of failed GM Mike Milbury reducing Tommy Salo to tears in an arbitration hearing. It’s at the very least unpleasant to have to sit through.

Ultimately, I think either way with the arbitration hearing, if it goes through then the chances that we’re going into Tatar’s last season as a Red Wing are more likely than not, even if Holland shows up with a boombox playing ‘In Your Eyes’ as his only argument.

There’s a little more to the overall process that you can read here, but this is what’s going to happen for Tatar’s case. In terms of what we the fans will actually find out about? Well that’s going to be nothing but a waiting game.