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Ask a Lawyer: Could Ovechkin and/or Kovalchuk legally get out of their NHL contracts?

Oct 24, 2012, 1:00 PM EST

Kovalchuk and Ovechkin Getty Images

With all the rhetoric emanating from each side of the NHL’s labor dispute, we’ve decided to bring in an actual lawyer to answer a series of questions. Hopefully it will prove useful to you, the reader, because it’s costing us $500 an hour. Please welcome to ProHockeyTalk, sports legal analyst Eric Macramalla.

PHT: Greetings, Eric. Both Alex Ovechkin and Ilya Kovalchuk have threatened to stay in the KHL should a new NHL CBA effectively reduce salaries on current contracts. Ovechkin thinks “it would be possible to annul [his contract with the Capitals] through the court.”

Could these guys actually legally get out of their contracts?

EM: Not really — but sort of. (And yes, it is these types of nonsensical answers that make people hate lawyers.)

First, as I covered here, if the players and owners agree on a rollback and that agreement is dropped in the CBA, then that pay reduction is lawful. So that means Ovechkin or Kovalchuk wouldn’t be able to say that their cut in pay is somehow unlawful, and by extension, grounds to invalidate their contracts. However, they might still be able to get out of them.

An NHL contract, which is called a “Standard Player Contract” or an “SPC”, provides at Section 14(b) that a team has the right to terminate a contract if that player shall “fail, refuse or neglect to render his services hereunder or in any other manner materially breach this Contract”.

Not rendering services would include not showing up for work. So while Ovechkin and/or Kovalchuk wouldn’t be in a position to challenge the validity of their contracts, they could elect not to return to the NHL, thereby setting in motion a series of events that would end with their clubs terminating their contracts.

Before termination, that same SPC at Section 4 says that a team can suspend a player without pay for not discharging the obligations under his contract. Again, that would include not playing for the team.

Their teams could also look to sue for breach of contract, which would entitle them to an award of monetary damages. They wouldn’t, however, be able to sue to force the players to come back and play.

There is one more issue. The NHL and the KHL have an understanding that each league will honor the contracts of the other league.

“[NHL deputy commissioner] Bill Daly confirmed in writing what our practice has been, namely, we respect their contracts and we expect them to respect ours.” commissioner Gary Bettman said.

So there would be pressure on the KHL not to allow Ovechkin and/or Kovalchuk to play in its league. However, it would just be that – pressure. As it stands, there would be no real legal recourse for the NHL if it wanted to force the KHL to bar the players from playing.

In conclusion, if Ovechkin and/or Kovalchuk were really disenchanted with the new CBA, they could take steps to walk away from the NHL.

Something tells me, though, that’s not going to happen.

Eric Macramalla is a partner at a national law firm and TSN’s sports legal analyst. He has covered the legal side of all major sports stories, including the NFL and NBA lockouts, the Saints Bountygate, Barry Bonds and Roger Clemens perjury trials, the Ilya Kovalchuk dispute and the Jerry Sandusky case. You can follow him on Twitter at@EricOnSportsLaw and his sports law blog is located at www.OffsideSportsLaw.com.

Related:

Ask a Lawyer: Would the NHLPA ever try to decertify to end the lockout?

  1. blomfeld - Oct 24, 2012 at 2:17 PM

    RATTUS ADVOCATUS !

    Hey man, you guys could have saved yourselves $500 by simply putting the question to us, your faithful and informed PHT readers ! The bottom line is that of course they can get out of their contracts. What this all basically boils down to is “jurisdiction” or a “lack there of” as in this case, given the “international” considerations involved. The NHL is not servile to any world governing hockey body, just as the KHL is not. And therefore both parties are free to act unilaterally in whatever fashion they deem to be in their own best interests. No, I’d contend that the bigger problem for these two clowns is that of “optics” as opposed to any legal issues. What Ovechkin and Kovalchuk are doing right now is essentially “infidelity” … and by doing so, they’re kicking their own fans square in the teeth ! Now I’ve used the domestic analogy once before and so I’ll say it again. When you have a disagreement or upset with your wife, is the answer to bolt out the door and start having an affair with your neighbor’s wife ? … of course not ! Sure you might walk out the door initially to cool off, etc. But then you need to get back in there before long and patch things up … “baby it’s okay, let’s talk about it” etc. So my advise to Ovechkin and Kovalchuk would be to end their affairs right now with these stupid KHL teams and to get back “asap” to their true fans in Washington and New Jersey, where they can kiss, make-up and everyone is happy again ! :)

    ps: don’t ever say that we Kings aren’t looking out for you guys, eh ? ;)

    • hockeyflow33 - Oct 24, 2012 at 3:48 PM

      I’m glad to see you understand the legal system as well as you understand hockey. You’re a complete moron.

      • blomfeld - Oct 24, 2012 at 9:24 PM

        The opposite of love is “indifference” … not hate

        Friend, I detect a certain “pain or anguish” in your words, which is often the result of a wrong doing, be that real or perceived ? The again, it’s possible that you’re just another one of these punks who blasts his head all day with “negative and toxic” crap music like Anthrax or Megadeath ? As I don’t know you from Adam, I’m tending to think it’s probably a case of the latter ? Therefore allow me to make a suggestion by asking that you consider changing up your playlist to something a little more positive and uplifting … I guarantee you’ll feel happier man ! :)

        for example, try this “stirring” little number by the King …

    • id4joey - Oct 24, 2012 at 6:46 PM

      blomfeld, I disagree with myself on this one….. LOL

  2. acieu - Oct 24, 2012 at 3:28 PM

    Das Vadanya

  3. botlecap - Oct 24, 2012 at 3:37 PM

    i just wonder why anyone in the khl would feel obligated to honor nhl contracts that the nhl doesn’t feel obligated to honor…

    • therealjr - Oct 24, 2012 at 4:43 PM

      Nice zinger, too bad it has no factual basis, given the explanation offered in the article.

    • bjbeliever - Oct 24, 2012 at 7:20 PM

      Considering escrow has been a part of the cba for the last decade, and players signed contracts fully aware of what escrow is, I just don’t see how they can claim the owners don’t want to honour contracts….seems a bit foolish to buy that line…

  4. lpotempa - Oct 24, 2012 at 5:22 PM

    Sure, they may be able to get out of their NHL contracts, but I hope they think of the repercussions of those actions.

    I have a feeling that if Ovechkin and Kovalchuk do remain in the KHL and their contracts voided, it wouldn’t be long before they want back in the NHL. And at that point, given their actions in leaving it, it would become very difficult for them to get back in the league. Yes, even with how big of stars they may be in the NHL, it would be difficult because teams would be wary of making those commitments knowing they may jump ship again.

    • hockeyflow33 - Oct 24, 2012 at 6:52 PM

      Not really, it doesn’t count against the cap, they retain the player’s rights and they don’t have to pay it.

  5. micklethepickle - Oct 24, 2012 at 8:42 PM

    Thanks for doing this, it was interesting to read! Enjoyed this post a lot.

  6. bills4 - Oct 24, 2012 at 10:59 PM

    Let them rot in Siberia!!

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