The NHL / NHLPA war was over. After 113 days of lockout the two sides finally signed the Memorandum of Understanding and hockey fans thought the battle between these organizations was finally through (for at least 8-10 years). But not so fast, a new legal battle is developing between the two sides as interpretations of a CBA that hasn’t even been written yet may be challenged going forward.

As many know the new CBA drops the NHL’s salary cap from just over 70 million this season (prorated to 48 games instead of 82) to just over 64 million next season. In order that teams will be able to comply with the new lower salary cap, the CBA contains a provision that teams may use an amnesty or compliance buy out on up to 2 of their players (at 66% of their salary) with no cap hit being applied. The rules on this buyout indicate that they cannot be done before the summer of 2013, and that the player cannot be injured at the time of the buyout. Further rules also indicated that teams could no longer get cap relief by burying their bad contracts in the minors, with a maximum of $900,000 in cap relief available for doing so.

Looking around the league there were two players who were absolute slam-dunks to be bought out under this amnesty clause, and they were Scott Gomez and Wade Redden. These two Glen Sather signings have seen their play fall off dramatically from where it was when they signed their contracts. Gomez has a $7.3 million cap hit, and Redden meanwhile had a $6.5 million hit. At best Gomez would be the 4th line centre in Montreal, and Redden the 8th defenceman on the New York Rangers depth chart.

These two teams have a number of other big money players and would find it nearly impossible to get under the cap next year without the amnesty buyouts on these players. Due to the fact that an injury would prevent a buyout of these players Rangers’ GM Glen Sather, and Canadiens’ GM Marc Bergevin have both made the tough decision to send their players home, and not have them play a game, or even practice with their teams this season.

Now the NHLPA is not happy with this, and is considering filing grievances against this treatment of the two former star players. My guess is that their argument will be centred around the fact that by preventing these players from playing the Habs and Rangers have effectively reduced their value and opportunity to find jobs after they are bought out this summer. While its true that they are not playing up to their contracts, there may be a team willing to take a chance on either of these two players regaining some of their past form, and give them a low money contract to see if they can. However with no chance to play in the NHL (or anywhere else this season), scouts will not be able to see if they show any signs of improvement.

The NHL will counter with the fact that a “guaranteed contract” as per the CBA only guarantees that the player is paid, and does not guarantee him a roster spot. The teams are allowed to make their own decisions on who fills their 23 man roster and who is cut. The teams are paying both Redden and Gomez to stay home and there is nothing that goes against this under the CBA.

Now this will put an arbitrator in a tough spot. Could he possibly rule that the Rangers must play Redden or that the Canadiens must play Gomez? I doubt it. He can’t control a coaches ice time.

So do they end up in the press box all season if the NHLPA wins the grievance? Again I say no. I don’t think an arbitrator will force a team to put someone on their 23 man roster, at the expense of another player. Its quite simply not in the arbitrator’s jurisdiction to make a ruling that would have this affect.

So what is the NHLPA going to ask for if they win this grievance? Similar to what would happen in a wrongful termination case, I think that the arbitrator can not even think about ordering that these players rejoin their current teams. Its an untenable situation, they would return to a place where they are clearly not wanted, and will not be given the ice time necessary to “audition” for their next deal. Instead, I think that the NHLPA will ask that Redden and Gomez be paid in full for the 2013 Season, be given their summer buyouts, and be declared immediate free agents, able to look for work with other NHL clubs, or on AHL deals, European deals, or ECHL deals if unable to find a taker in the NHL.

UPDATE 3:00 PM. Bob McKenzie is reporting that the NHL and NHLPA have agreed to avoid court and do exactly what I suggested here (in bold) this morning avoiding litigation, the potential of damages and helping the players. A very good compromise.

… and thats the Last Word.

Feel free to follow me on twitter @lastwordBkerr and be sure to join Max Vasilyev and I on Wednesday Nights at 10:00pm when we host the hockey radio show, “Puckheads”, on the Last Word Radio Network. You can listen in live or to our past podcasts by clicking here, or by searching for us on iTunes.

Main Photo Credit: article.wn.com, CC