Defenseman Jake Dotchin had his contract terminated on September 14, 2018 by the Tampa Bay Lighting for failure to meet conditioning standards.





And we’re back.

If you’ll look to your left and to your right, you’ll see all the lovely chickens settling in for a nice roost after coming home.

It was just under three years ago that the NHL and NHLPA announced that a settlement had been reached in the grievance that Mike Richards had filed against the Los Angeles Kings for unilaterally terminating his contract on June 30, 2015.

My response to the announcement was not a happy one, and somewhere just shy of Cassandric. I wrote at the time that the league had set a terrible precedent in allowing the termination to stand, even with a settlement. I argued that in the case of Richards, a negative asset who was terminated after being arrested with an illegitimate prescription of opioids at the US-Canada border, the Kings had circumvented the NHL/NHLPA Substance Abuse and Behavioral Health Program. My personal opinion was that they had done this specifically to get rid of Richards’ substantial contract, which at the time had five years remaining at an AAV of $5.75 million.

My overall conclusion was the NHL and NHLPA, in not overturning the termination, had opened the door for teams to explore unilateral contract termination as an option for dealing with unwanted players. Furthermore, they had allowed teams to do this without risking any repercussions or negative consequences - the likely outcome would be a negotiated settlement that was still favourable to keeping the player, and the worst-case scenario was that the player may be reinstated and the team no worse for the effort.

Now, three years later, the Tampa Bay Lightning appear to have taken the lesson to heart. The Athletic’s Joe Smith reported on September 14, 2018 that 24-year old defenseman Jake Dotchin was placed on unconditional waivers for the purpose of contract termination. Elliotte Friedman further elaborated that the Lightning were "extremely unhappy with Dotchin’s conditioning" upon arriving at training camp. While "conditioning" can sometimes be used as a term to describe other issues with a player, it appears from Smith’s reporting that Dotchin’s physical conditioning was the only issue that his agent Sam Perreault was aware of. Dotchin has said that he respectfully disagrees with the Lightning’s decision.

The allegations that have come out since this, unsubstantiated but from solid sources such as Friedman and Bob McKenzie, are that Dotchin was up to 30 pounds overweight and carrying a body fat percentage of up to 25%.

One note that I have on this is that without speculating on Dotchin’s personal life, such a rapid decline in personal health raises significant red flags about the player’s mental health. Rapid weight gain is often tied to drug and alcohol abuse, as well as depression and anxiety. At the very least, such a decline should trigger an investigation into Dotchin’s mental and emotional well-being, taking precedent over what to do about his contract.

Whatever the underlying issues, this is bigger than just the case of Jake Dotchin, and I think the NHLPA has no choice but to fight this termination tooth and nail.

The issue is that, despite the existence of the termination provision in Paragraph 14 of the Standard Player’s Contract ("SPC"), there has never been a way to terminate an SPC unilaterally, and neither the NHL nor the NHLPA ever truly intended that there should be one. The language of Paragraph 14 of the SPC states at the team can terminate the player if they "fail, refuse, or neglect to obey the Club’s rules governing training and conduct of Players, if such failure, refusal or neglect should constitute a material breach of this SPC."

First of all, note the big condition precedent that the conduct has to constitute a material breach in order to justify termination. Without knowing what actually constitutes a material breach, that’s some pretty vague language on which to base a disciplinary measure as extreme as contract termination, and I think that is the whole point. The Collective Bargaining Agreement ("CBA") and SPC were never crafted with the intention of allowed a team to unilaterally terminate a player’s contract if there was even the chance they were doing it for performance-based reasons. The wording of that provision is almost closer to the employment law concept of "frustration", meaning the understanding that circumstances have made it such that the contract can no longer be fulfilled. This is reserved for things like the player retiring, transferring to another league, or perhaps even committing such an awful misconduct that they can no longer fulfill the terms of the contract (ie. a lengthy jail sentence).

Now, you may disagree with my interpretation of that termination provision, but I think it’s supported by the fact that training and condition obligations are covered in greater detail elsewhere in the SPC, including the actual disciplinary measures that a team can take for failure to meet those obligations. Paragraph 4 of the SPC states:

"The Club may from time to time during the continuance of this SPC establish reasonable rules governing the conduct and conditioning of the Player, and such reasonable rules shall form part of this SPC and the Agreement as fully as if herein written. For violation of any such rules or for any conduct impairing the thorough and faithful discharge of the duties incumbent upon the Player, the Club may impose a reasonable fine upon the Player and deduct the amount thereof from any money due or to become due to the Player. The Club may also suspend the Player for violation of any such rules." (Emphasis added)

What can we learn from this paragraph? Well, firstly it’s important to note the fact that teams can establish their own rules for conditioning - Joe Smith detailed in this article some of the different fitness tests that different teams employ. This explains why they are also limited in what discipline they can dole out for violations of those rules, because the alternative would be a league where player contracts are less guaranteed on some teams than others. In other words, the NHL accepts that some discipline for conditioning failures are arbitrary, but severely limits the actual disciplinary measures in those cases. Given the specificity of Paragraph 4, it’s reasonable to say that failure to meet conditioning standards falls way more in line with the provision of the SPC than with the termination provisions of Paragraph 14.

Finally, note the wording "violation […] or any conduct impairing the thorough and faithful discharge of the duties." One interpretation, and certainly the one the NHLPA is likely to use in a grievance, is that this provision means actual good faith failure of meet conditioning standards do not alone trigger the allowance for discipline – rather there must also be an element of purposeful misconduct or outright refusal to follow the rules for conditioning. In other words, being out of shape is not a violation until the player has displayed wilful refusal to get in better shape, or at least follow the team’s advice or training to do so.

What this all adds up to is a rules regime where failure to meet conditioning standards has to be handled on a collaborative basis rather than a disciplinary one, at least at first. History supports this interpretation, as detailed by Eric Duhatschek in his Athletic article of September 21, 2018 describing conditioning failure incidents involving Grant Fuhr and Keith Tkachuk:

"In 1995, the St. Louis Blues suspended goaltender Grant Fuhr for showing up overweight his first year under Mike Keenan after signing with the team as a free agent. Fuhr eventually was reinstated, and instructively, started to work with Bob Kersee, the celebrated track and field coach. By adhering to a diet and exercise program designed by Kersee, Fuhr eventually trimmed down. That year, after such an awkward start, Fuhr played the first 76 games consecutively for the Blues and 79 in all, which is still an NHL record for most games by a goaltender in one season. It was one of the most stunning beginning-to-end turnarounds the NHL has ever seen.

A decade later, something similar happened in St. Louis, this time with Keith Tkachuk, just ahead of the 2005-06 season, which came after the league lost the full previous season to a lockout. With all that time off, Tkachuk reported to camp carrying too much weight and the Blues suspended him. Thirteen days later, Tkachuk returned much fitter, passed his physical, and went on to have another good season."

These historical examples are not merely illuminating, but they are precedent-setting as well. The SPC has remained more or less unchanged for decades, and the termination provisions in Fuhr and Tkachuk’s contracts were exactly the same as the ones in Dotchin’s. Therefore, we can conclude that is has been the convention in the NHL that failure to meet conditioning standards do not warrant disciplinary termination, but rather suspensions with collaborative efforts to improve conditioning. While convention alone does not defeat a contract term, but it is a powerful influence in interpretation, and the historical interpretation seems to be this: there exists some hypothetical violation of paragraph 4 that would constitute a material breach worthy of termination, but the NHL has historically not treated failure of conditioning standards to be such a breach.

Now, my argument may sound like a tautology: that a team cannot terminate for conditioning failure because teams have not terminated for conditioning failure. But the interpretation based on convention makes logical sense as well. The idea of a material breach is that it has to actually render the entire agreement void, and has to be significant enough to destroy the value of the contract. It can’t be a typo in the wording or anything so insubstantial, but rather a violation that makes the contract no longer capable of performance. We’ve seen teams successfully deal with players failing conditioning standards by collaborative approaches to allow the performance of the player’s contract, meaning by definition that such a failure does not render the contract incapable of performance.

That also makes sense when you consider that a player’s conditioning as recorded by the team’s specific tests may not be determinative of his bottom-line ability to play hockey now or in the future. Some players perform equally well despite having vastly different BMIs, body fat percentages, and VO2 test results. You may recall that Winnipeg Jets defenseman Dustin Byfuglien reportedly weighed over 300 lbs at the end of the 2012-13 season, nearly 20 pounds over his normal weight. While his performance that season was not the greatest of his career, he was still able to play as the Jets first-pairing defenceman. Since a general decrease in player performance is not grounds for termination, it must be similarly argued that neither is a conditioning failure resulting in a decreased performance. This is all before one considers that the Lightning did not allow Dotchin even the opportunity to perform in preseason games before deciding that his contract would be terminated.

The ultimate conclusion from this exploration of CBA interpretation is this: teams are trying to create a space to allow unilateral contracts terminations that was never intended to exist, and the NHLPA is being drawn into a fight that it cannot afford to back down from.

Unlike the Richards termination, there is no room for a settlement here, as that would open the door even wider. The NHLPA’s opponent here, Julien BriseBois, is a lawyer who cut his teeth at, Heenan Blaikie, a top-notch litigation firm, and knows that the value of laying legal ground work. Despite the fact that the CBA was never written to allow teams an option to unilaterally terminate player contracts, BriseBois recognizes that the Richards termination and settlement put a large crack in the dam of guaranteed player contracts. Now, I will say that unlike Dotchin’s case, the Richards termination had two key bad faith elements. Firstly, there was a large negative value contract that gave the Kings extra incentive to terminate, and secondly, an element of drug use that should have, but for reasons unknown did not, trigger the implementation of the NHL substance abuse policy. Given this, I don’t think that BriseBois’ primary motivation is to get around costlier ways of dealing with a large contract. What I think he’s actually doing is playing a longer game and probing the league and the NHLPA with this termination to see what a team is able to get away with, because as mentioned there is little detriment or risk to doing so.

If he is successful, even if Dotchin reaches a settlement that still sees his contract terminated, BriseBois will succeed in widening that crack and carving out a space where teams can terminate a player’s contract seemingly at will. And even if you think that Dotchin was terminated for a just reason, what I said three years ago remains just as true now: if that space is carved out, it won’t matter in the future if the termination is justified or not, because teams will be able to do it for whatever reason and with zero risk. No matter what the reason for the termination, the team can count on settling the issue, and with each successive case the teams will carve out more and more precedents that allow them to do so with impunity.

Dotchin and the NHLPA have until November 13, 2018 to grieve the Lightning’s decision, and as per Joe Smith it appears almost certain that they will. In addition, it appears St. Louis Blues GM Doug Armstrong has followed BriseBois' lead announcing on September 15, 2018 that the team had terminated the contract of 22-year old defenseman Dmitri Sergeev for failure to meet conditioning standards. It is apparent that the dam is already cracking, and this time the NHLPA has to stop it without no settlements, no compromises and no incremental steps. If the NHLPA wants player contracts to stay guaranteed, they have to fight these terminations and win the battle completely.

- Kung Fu Canuck