Tomorrow the defenceman Jared Cowen and the Toronto Maple Leafs are scheduled to have what is expected to be the final arbitration hearing concerning Cowen’s grieving of his buyout. It will be the end (or close to it, depending on the outcome) of a long and fairly sad sage for the 25-year old defenceman and the Leafs team that has long seemed done with him, one way or another.

To quickly recap, Cowen came to the Leafs as part of the massive Dion Phanuef deal in February, solely to balance out the salary implications of the trade. Before getting into a single game with Toronto, Cowen was placed on IR on February 13 due to a lingering hip injury (described as "tightness"), which was expected to take about 10 days to heal. He was activated off IR on February 26, and immediately placed on Regular Waivers.

He would clear waivers, and was apparently cleared to play in the AHL, no doubt by team doctors. Three days later, after the Leafs could find no suitors for Cowen at the trade deadline, Leafs GM Lou Lamoriello announced that he would be bought out over the summer.

As we now know, Cowen was in fact bought out over the summer, on June 16 to be specific. It appears that this decision was grieved immediately, as the first arbitration hearing took place on June 29. Now, it appears that matter is going to be settled for certain tomorrow. If Cowen is successful, he will receive his $4.5 million salary for the year, and the Leafs will potentially be on the hook for $3.1 million in cap space (barring any sort of accommodation being reached). If the Leafs are successful, Cowen will receive $750,000 for each of the next two season.

The question of course is what is going to be argued at the hearing? And what is the likely outcome? I’m not privy to any special information, so my ability to predict the outcome is very limited, but we can definitely make some educated guesses based on what the substance of the hearing will be.

By now, most people know that the grievance is based on the fact that Cowen was injured at the time of the buyout, and injured players cannot be bought out. However, it’s obvious that the answer is a little more complicated, given that nowhere in the NHL Collective Bargaining Agreement is that rule written down or even alluded to — there is zero language in the CBA regarding eligibility for a buyout. Given that this rule has been around for a while (See Glenn Murray in 2008), the best guess is that it is a rule of convention.

Now, @wingingitmowtown is almost certainly correct about where this convention comes from, but that doesn’t leave us with a clearer picture of the issues that will be argued tomorrow. Even if that is the general rule, what does it mean? What kind of injuries stop a buyout? When does the injury have to take place?

Here is my best guess, based on the CBA.

The process of an ordinary course buyout is governed by s.13 of the Standard Players Contract, which is concerned with termination. (It also contains the vague language that the LA Kings relied on to unilaterally terminate Mike Richards’ contract last year) S.13(a) and (b) are the important ones here:

(a) The Club shall offer the Player on Unconditional Waivers, either before or promptly after the notice of intention to exercise the Ordinary Course Buy-Out option (herein called "notice of termination") is given. (b) Termination pursuant to this Paragraph shall be effective upon receipt by the Player of the notice of termination and the Player clearing Unconditional Waivers pursuant to Paragraph 13(a) above.

I’ve bolded "unconditional waivers" because it is the operative word to explain this rule – this is different from the usual type of waivers (called "Regular Waivers") one hears about (Think Martin Frk and Frankie Corrado). Regular Waivers is subject to a several rules and restrictions regarding who is eligible, some of which are important here, while Unconditional Waivers, as the name suggests, not.

So why am I even bothering to talk about Regular Waivers? Well, this brings me back to the point about rules of convention. Even if the CBA doesn’t contain any hint of deliberation about eligibility for buyout, there must be some logical reason why the convention exists, right? This is where we get into theory, so bear with it.

Generally, the NHLPA likes buyouts, because it tends to mean more money on the whole. Players who get bought out, while only getting 2/3 (usually) of their full salary, tend to get smaller contracts afterward, and enjoy collecting two cheques for a while. That is why there is no express language for grieving a buyout — that said, even if it is rare, buyout grievances have happened before, and it’s frankly baffling that it hasn’t been codified. Nonetheless, to figure out what’s going on here one has to ask why would a player not want to be bought out?

Generally, a player will not want to be bought out if they are concerned about getting a new contract afterward, and therefore will try to roll the dice to get the most amount of money. This would indicate that the players who are most likely to to resist a buyout are older players, players who are clearly done in the NHL, and injured players.

So we understand the motivation, but what does that have to do with the CBA? The thing to remember is that every section in the CBA exists to protect players, teams and/or owners. This includes s. 13.6, which governs one of the only restrictions on who can't be placed on Regular Waiver — disabled players.

13.6 Disabled Player Loan to Minor Leagues. A Player who is otherwise required to clear Regular Waivers and who becomes disabled while on an NHL roster can be placed on Regular Waivers and be Loaned to a minor league club prior to appropriate medical clearance being granted only if the Player was on NHL Recall at the time he becomes disabled and has not played ten (10) NHL Games (cumulative) or remained on the NHL roster for thirty (30) days (cumulative) since his Recall. The Player shall receive his Paragraph 1 NHL Salary and benefits until appropriate medical clearance is granted. All other Players may not be Loaned until appropriate medical clearance is granted.

Finally, we have some language in the CBA that actually talks about injuries and waivers — ignoring the details, the bottom line of s. 13.6 is that players who are seriously injured cannot be loaned (ie. the whole reason for waiving a player) unless they are medically cleared to play.

Why?

Why does the CBA have this protection? You can put an injured player on IR, you can healthy scratch them, you can tell them that it’s better to just go home. So why can’t injured players be waived?

There’s no clear answer, but we can take a guess. Clearing Regular Waivers and going to the AHL is generally a bad outcome for a player — it means that his perceived value drops, and he has less chance to earn it back. Sometimes, it might be better for a player to force his presence on an NHL team than be in the AHL. This is why Waivers exists — so that there is a potential consequence of that player going to a different team. It protects good players by making teams afraid to lose them, and offers some glimmer of hope to not as good players, who might find a home with another team. This is why it makes sense to prevent NHL teams from waiving injured players. It wouldn’t be a fair last resort for a player to be offered to the 29 other teams if he’s not 100%. It makes him more likely to clear waivers when perhaps he otherwise would be claimed.

If this protection exists, you can begin to see the rationale for protecting injured players from being bought out. Remember, a player whose contract is being terminated has to go on Unconditional Waivers — in other words, his team has to see if anyone would want him before they buy him out. The logic would be that if a player’s only hope to avoid an undesirable outcome (ie. going to the AHL or getting bought out) is some other team taking him, then in neither case would it be fair to offer that player at anything less than 100%.

Here, then, is the conclusion of my theory as to how this convention is "read in" to the CBA. The same logic that gives protections to players being loaned to the AHL would logically apply to players getting bought out — the NHL and NHLPA have therefore decided that, even though a bought out player must first clear Unconditional Waivers, the protections offered by the rules governing Regular Waivers will be read in to apply in that situation. (If that seems contradictory, remember that Unconditional Waivers are only so-named because they do not have rules about what players must be subject to them, unlike Regular Waivers which factors in exemptions for less NHL experience and age).

Now, the obvious issue with this convention is that while you can wait for a player to heal and loan him to the AHL without a problem, there is only a small window of time for Ordinary Course Buyouts as set out the CBA (roughly two weeks before July 1, and a second window after arbitration, as set out by in the CBA Critical Date Calendar). So, the rule by convention appears to be particularly restraining on teams from a timing perspective.

"But Mr. KungFuCanuck," I can hear you ask, annoyed, through your computer screen. "None of this explains what’s going to happen tomorrow with Cowen! Why did you make me sit through a long-winded lesson on statutory interpretation, you self-important blowhard?"

Well dear reader, while your insults hurt me, let me explain. This preamble was important because it sheds a tiny bit of light on what the specifics of the issue will be tomorrow. If the convention about prohibiting buyouts for injured players stems from the protection in regards to waivers, it stands to reasons that the rules will apply in a similar way. Which means we’ve gone from shooting in the dark about Cowen’s situation, to actually having a defined set of rules to assess it by.

And in Part 2 tomorrow, I will assess Cowen’s situation through the lens of CBA s.17, which directly speaks to determining a player’s fitness to play when there is a disagreement between him and the team.

-KungFuCanuck