Today, the Maple Leafs and Jared Cowen will have their (probably) final arbitration hearing to determine whether or not his buyout in June was valid under the CBA. In Part 1, I explored how, despite the lack of any language in the CBA regarding ineligible buyouts, the rule was read-in to the existing waiver protections rules. Today, I will look at these provisions and make a guess about today’s outcome based on what is publicly known about the Cowen saga.

At this point, we know that the rules protecting injured players from being bought out come from the Regular Waiver protections in s.13.6 of the CBA. Recall that the specific language of that section specifies these protections for a "disabled" player. This word provides a link to s.17 of the CBA, which governs the rules and procedures for grievances and arbitration. Specifically, it links us to s.17.7

"Procedures for Determining Fitness to Play. The following procedures will govern a determination of whether a Player is disabled and unable to perform his duties as a hockey Player for purposes of Paragraph 5 of the SPC."

The procedure outlined in s.17.7 is very similar to the one outlined in paragraph 5 of the SPC. I won’t go into too much detail for length purposes, but here are a few highlights and things to keep in mind. Pay particular attention to the timeframe provided by each step.

1) Every time a Player is Waived (Regular or Unconditional) you can assume that there is an initial determination of the Player’s fitness to play.

2) Generally, the Club physician is the one to make the initial determination. The language of CBA makes it clear that most of the situations contemplated involve a Club determination that the Player is not fit to play, but there is no reason why the reverse situation would not be governed by the same procedures.

3) Once the Player is formally notified of the determination, he has three (in rare cases four) days to notify the Club that he is seeking a second opinion. Provided that the Club provides the Player with his medical files, the Player must seek that opinion within five days of the initial Club notice of their determination.

4) The Club and Player must meet within at least three days of the Player’s assessment. Assuming there is a disagreement between the two assessments, the two must select an Independent physician. If they cannot, one will be selected by a medical representative of the NHL and NHLPA each.

5) The Player must submit himself to the Independent Physician within five days of the selection. The physician will make a determination only in regard to whether or not the Player is fit to play.

6) Absent a show of improper interference with any of the procedures, the Independent physician’s assessment is final and conclusive.

In addition to this procedure, there is one more important section to consider, s.17.7(i):

"For purposes of clarity, the Club Physician, the Player's Physician and the independent physician shall be charged only with determining whether the Player is disabled and unable to perform his duties as a hockey Player. Any other determinations, including whether a Player's disability is a hockey related injury, shall be within the jurisdiction of the Impartial Arbitrator."

This means that if a player like Jared Cowen is going to an arbitration hearing in October about his buyout, the issue at stake is not going to be whether or not he was healthy. There wouldn’t be an arbitration if the player was healthy — only if the he was found by an independent physician to not be healthy. The only logical issue for arbitration is whether or not the player became unfit to play as a result of a hockey-related injury.

So what can we glean from this about Cowen’s situation? A lot, as it turns out! Let’s assume that both sides have properly complied with every procedure, and we can piece together a narrative of Cowen’s situation.

As I recapped in Part 1, Cowen was placed on the IR for hip tightness before even playing a single game with the Leafs. Here’s what Mike Babcock said about it on February 11:

"Our scan, or whatever our medical people do, found his hips were really tight. He’s not injured, but we’re going to spend the next 10 days doing what we can to loosen him up so we can catch him being good when he starts."

Now, given what we know about the CBA, we can assume that Cowen was properly notified by the Leafs physicians that he was not fit to play. There is no indication that he disagreed or tried to dispute this. Upon returning from the IR, Cowen was placed on Regular Waivers by the Leafs. Presumably, this followed the Leafs notifying him of their determination that was now fit to play when they activated him off IR.

Now, Cowen wasn’t thrilled about being waived, but there was no indication that he disagreed with the Leafs’ assessment of his fitness. In fact, he said that he felt better and good enough to play. This was three days before the 2016 trade deadline. There was speculation that the Leafs were trying to move Cowen, but whatever the case there were no takers.

That same day, Leafs GM Lou Lamoriello announced that Cowen would be bought out in the summer, and that they had for all intents and purposes shut him down for the season. They advised him to go home and told him to await a buyout, all the while giving him permission to speak to other teams about a contract for the 2016-17 season.

There are two important things to dig out of this news. The first is that the Leafs shut down Cowen because of the language in s. 5(j) and (n) of the SPC. S.5(j) states that if a player becomes unfit to play during the course of his employment, he is entitled to the full payment benefits of his contract. S.5(n) states if the player is unable to play by reason of an injury not sustained during the course of his employment, he is not entitled to the benefits of the contract until he becomes fit again.

The simple conclusion to draw, as many already have, is that once Cowen was declared fit to play in February, shutting him down for the season was the only way to ensure that he could not be protected from a buyout, as even if he was injured in June, the injury would not be one that he sustained in the course of his employment.

The second important point is that Cowen explicitly chose not to grieve the Leafs decision to shut him down, as reported by Elliotte Friedman in March. His agent said at the time

"We’re going to take the time to get Jared right. He’s not injured, but he’s not right. Any doctor would clear him to play."

Cowen could have grieved the decision either on the grounds that he was healthy (in keeping with s.17.7) or simply in regards to the decision to not let him play.

A similar grievance was brought successfully by Scott Gomez against Montreal at the beginning of the lockout-shortened 2012-13 season. The Canadiens wanted to keep Gomez healthy so they could buy him out problem-free in the summer. The NHLPA argued that such a maneuver would unfairly restrict Gomez from demonstrating his value to other teams in hopes of seeking his next contract. Though the arbitrator would have been helpless to force the Canadiens to play Gomez, eventually the two sides agreed that he would be paid in full for the season, bought out in the summer, and be free to negotiate a future contract with other teams.

The fact that Cowen did not grieve the decision in March tells us two things: 1) Cowen either thought himself healthy, or did not think it was worth fighting the determination, and 2) Cowen was most likely confident that he could find a new contract.

Obviously it didn’t turn out that way, and it appears that Cowen’s prospects of future employment were very low when the Leafs placed him on Unconditional Waivers for termination purposes on June 16, 2016. We now know that though the buyout officially happened, it was grieved almost immediately. We can assume that all sides acted in accordance with the s.17.7 procedures, and note that the timeframe contemplated by those procedures is about two weeks from assessment to the decision by the independent physician. This makes sense, given that the first hearing between the NHL and NHLPA was June 29.

What complicates the situation slightly is that Cowen had hip surgery before this hearing. Elliotte Freidman originally reported on June 30 that he had undergone surgery after leaving Toronto, but Bob McKenzie later clarified that it was after he had been bought out. This means that he had surgery sometime in the two-week period, during which he was supposed to be undergoing to the assessment procedures in s.17.7.

How much does this matter? I can’t tell, honestly. If the surgery took place after Cowen’s fitness was determined by an independent physician (which is possible), then it may not play any role in the proceedings. Given that Cowen would have probably needed to schedule the surgery before June 15, the arbitrator may not look kindly on it if he perceives it as proceeding in bad faith, since Cowen knew he was going to get bought out. The other possibility is the Leafs could argue that even if Cowen were unfit in June, had he not elected for surgery he would have been healthy enough for the second buyout window in August. Again, that possibility is subject to information I don’t have.

Let’s assume that Cowen’s surgery came after the assessment that he was unfit, and that he would have still been unfit in August. The crux of the issue will be whether or not this was caused by a hockey-related injury, and given the Leafs’ decision to shut Cowen down in March, such an injury would have to have occurred before this.

Here is where Cowen’s decision not to grieve the Leafs’ decision to shut him down will work against him. The arbitrator may ask why, if Cowen was in fact injured at the time, did he not challenge the Leafs’ determination that he was healthy when they waived him. Even if Cowen successfully argues that he merely wanted to play, this would be undercut by the fact that he didn’t challenge the decision to send him home either, despite the fact that he knew a buyout was in his future. There is also the issue of his and his agent’s statements, in which each said at different times that he was healthy.

Now, this doesn’t mean that Cowen has no case. Without medical assessments the statements could be dismissed as posturing. Furthermore, Cowen will most likely argue that his injury is a single continuous condition that deteriorated from February to June. The best we can do to assess the situation is to look at previous similar cases.

(Writer’s note: The earliest case of a buyout grievances I can find is 1999, which means that NHL and NHLPA have negotiated two subsequent CBAs since then and still declined to specifically address this issue in either one. I cannot overstate how ridiculous it is that this rule has never been codified.)

David Tanabe was bought out by the Carolina Hurricanes in 2008, and later grieved the buyout on the grounds that at the time he was suffering from the effects of a concussion sustained in December 2007. Tanabe and the Hurricanes eventually settled the matter and Tanabe’s contract was bought out. I think Tanabe had a better case than Cowen does here, as he was on Injured Reserve for the remained of the 2007-08 season following his concussion, and couldn’t even make it to his post-season exit meeting. Whatever Cowen’s situation, his medical clearance in February and his statements indicate a different situation.

The other case to consider is Glen Murray, also bought out in 2008 by the Boston Bruins. Murray had surgery in April 2008 on his ankle for a chronic condition, and missed the remainder of the season. His case was slightly more complicated, as Murray shopped himself around to teams that summer, and only grieved the buyout in November 2008 after a secondary ankle condition was diagnosed. Murray lost his grievance in part because he was too late in seeking a secondary medical opinion. This makes it difficult to assess Murray’s case on its merits. If he had grieved the buyout immediately when it happened, would the ankle surgery have been enough to protect him from a buyout? I ask this because it seems that Murray was arguing that it was his secondary ankle condition that should have protected him, not the one he had surgery for. This would imply that the surgery would not have protected him, but it is difficult to know for sure. If that is the case, the having surgery for a chronic condition may not provide the buyout protection that Cowen is seeking.

Another thing to note is that there has never been a successfully overturned buyout in the NHL. Dino Ciccarelli dropped his grievance against the Florida Panthers in 1999 and retired. Glen Murray’s buyout was upheld even as he was recovering from surgery. The New York Rangers, following rumours to the contrary, were able to buy out Chris Drury in 2011 despite a reported "degenerative condition" of his left leg (although it is likely that Drury voluntarily accepted the buyout). The closest case was David Tanabe, who settled with the Hurricanes and was still bought out in the end. The lack of previous invalidations will make any arbitrator gun shy.

So after two articles and many words, how can we handicap the Cowen arbitration? Nothing is for certain; a law colleague once told me that the best, most solid case you have as a lawyer have only ensures about a 60% chance of victory at trial. However, I would guess that the Leafs are going to win the arbitration on the strength of the unchallenged assessment that Cowen was fit to play back in February. Based on the Murray decision, I don’t think the arbitrator is going to buy the case that Cowen’s injury is a deteriorating hip condition that is related to his pre-February play.

My guess is that the Leafs and Cowen very likely had an unspoken agreement in March similar to that 2013 Gomez deal; that Cowen would be shut down out and later bought out in June, all the while free to seek future employment. The Leafs have a very good case that even though Cowen was fit to play in February, the decision to shut him down was mutually beneficial. The Leafs would be able to buy him out, and if Cowen was worried about a chronic hip issue he could do long-term rehab on it while receiving full pay.

If the convention that injured players cannot be bought out is meant to protect players from conditions that would disadvantage their future employment, then I don’t think the Leafs treatment of Cowen qualifies as something worth protecting against. For that reason, I will predict that the Leafs will win the Cowen arbitration today.

I’m at least 60% sure, anyways.

-KungFuCanuck

Update: Bob McKenzie clarified the cap implications of today's decision. There will be no accommodation for the Leafs if they lose — it will be the full $3.5 million cap hit.