By: Sami Pulley
Do the Washington Capitals’ Alex Ovechkin, Evgeny Kuznetsov, Dmitry Orlov, and Ilya Samsonov deserve four-game suspensions for hanging out in a player’s hotel room while on the road?[1] Under normal circumstances, no. This type of team bonding is usually encouraged by coaches and team administrators. Today, during the COVID-19 pandemic and in a time of heightened health concerns, most regular team bonding and road life activities break the National Hockey League’s (NHL) Collective Bargaining Agreement (CBA). When a player breaches the CBA, the contract between the league and player breaks; thus, the party that breaches the contract is subject to a penalty.
Before the NHL, which represents the team owners’ interest, and NHL Players Association (NHLPA) agreed to resume the 2019-20 hockey season in the Toronto and Edmonton Bubbles, the NHL and NHLPA extended the January 2013 CBA for four years, expiring following the 2025-26 season. The CBA extension includes protocols such as the Return to Play Memorandum of Understanding[2] as well as COVID-19, Positive Test, and Travel Protocols which were released on December 22, 2020.[3]
The Travel Protocol provides players and team staff (collectively, “Club”) with the following rules:
“Each member of the Club’s Travelling Party will be required to stay in a single occupancy room, and no individual shall permit guests or other personnel in their room (with the exception of housekeeping or engineering staff, as needed, which services shall be provided while individuals are not present in the room).[4] “
Further, “[h]otels shall ensure appropriate cleaning of individual rooms prior to the arrival of the Travelling Party, and thereafter, housekeeping in guest rooms will be provided every third day (if the Club’s stay at the hotel is shorter than three days, housekeeping will not be provided).”[5] In short, no individual shall enter a Club member’s hotel room, unless emergency engineering services are required or housekeeping is permitted on the third day, and the Club member is not present at the time. These circumstances permit Club members to only enter their own hotel room. No guests or Club members are permitted to enter any other hotel room. Thus, when Ovechkin, Kuznetsov, Orlov, and Samsonov were found in a hotel room together, they broke protocol and violated the CBA.
A contract breach occurred because the players are under an absolute duty to adhere to the CBA. The CBA applies to all current and future members of the union, regardless of whether the CBA was negotiated before the players signed contracts. The players must abide by the negotiated CBA because Wood v. National Basketball Association held that the provisions were collectively bargained and met the requirements of the Non-Statutory Labor Exemption.[6] In Wood, the court used the three-part test determined in Mackey v. NFL to assess the applicability of the exemption: (1) Is it a mandatory subject of collective bargaining? (2) Does it only affect parties to the collective bargaining relationship? and (3) Is it the product of bona fide arm’s-length bargaining?[7]
In this case, the answer to each question is yes. Wages, compensation, and benefits are the mandatory subject of collective bargaining. When the NHLPA agreed to extend the CBA, new terms were negotiated with the NHL and part of those terms were protocols for the players’ health and safety, including procedures implemented during the COVID-19 pandemic. While it is uncertain if these protocols will remain in any capacity going forward, they were mandatory subjects of the collective bargaining.
Second, the CBA amendments and protocols affect only the parties to the collective bargaining relationship. The CBA only affects the NHL and the NHLPA who are the parties to the agreement. Third, the CBA amendments and protocols are the product of bona fide arm’s-length bargaining because the players negotiated with the NHL for these policies. Player health is consistently at risk while competing in a contact sport, let alone during a pandemic. Not only could COVID-19 sideline a player, potentially ending their career if the player has serious side effects, but players’ families are also at risk for contracting COVID-19. As a result, the players take negotiating health policy with the NHL seriously. Since the NHLPA and the NHL negotiated these health policies, they meet the third prong of the Mackey test. It does not matter if the players agreed to policies that are unfavorable to them because the presumption is that they got something in return for any such concessions. The COVID-19 health policies are valid because they were a mandatory subject of collective bargaining, impact only parties to the agreement, and come as the result of bona fide arm’s length bargaining.
Though the players did violate these health policies, a $100,000 fine to the organization and four game suspension for each player seems like a heavy punishment in a 56-game season. The NHL and NHLPA did not publish their COVID-19 penalties, but it is likely that the goal of this punishment was to deter players from similar reckless behavior in the future. Although the punishment for failing to wear a face mask and socializing with teammates in violation of the CBA seems heavy, it is a reasonable preventative measure considering one of those individuals later tested positive for COVID-19 and his team will be down a player until he recovers.[8]
It was important for the league to set the tone early in order to prevent a COVID-19 outbreak and protect lives. The league also has an interest in preventing future breaches of contract. Financially, it is crucial for the NHL to complete the season prior to the Tokyo Olympics. (See generally, The NHL's 2021 Problem.) Not only does the NHL have a financial interest in finishing the season on time with as many games played possible, but the players share that interest. The CBA extension included amended escrow ratios for revenue sharing of hockey related revenue, increasing the players’ contribution to the escrow account to 20% in comparison to approximately 10% in previous years.[9] This means that the owners share revenue coming from streams such as concessions, merchandise, ticket sales, parking, and TV contracts with the players, but the players pay into the escrow account to off-set any loss of the owners’ projected revenue. If revenue exceeds the projected values, the players and owners split the earnings and players receive their escrow payments in return.
While Ovechkin claimed he would learn from the experience, the consequences are more apparent in a shortened season.[10] Ovechkin is the captain and highest paid player in the Capitals organization and one of the most prolific scorers to ever play the game; but what does four games amount to in a modified season? A typical NHL schedule has 82 regular season games per club and a four-game suspension would account for 4.9% of the season. In the modified pandemic season, the league intends to play 56 regular season games per club (pending COVID-19 delays and further modification), which means a four-game suspension is 7.1% of the season. Further, sick players will likely miss more games to recover and return to game shape. 7% is a substantial share of the season to sacrifice, especially when the situation was entirely avoidable. The players could have socialized in the team’s regulated settings at the hotel or called one another on the phone. It seems silly to reprimand adults for socializing, but the league and its member clubs have a lot riding on compliance with simple rules. Hopefully this punishment put the rest of the league on notice and will ensure that players follow protocol going forward.
References:
[1] Tom Gulitti, Ovechkin, three other Capitals out four games due to COVID-19 protocol, (Jan. 21, 2021), https://www.nhl.com/news/washington-capitals-ovechkin-kuznetsov-samsonov-orlov-covid-19-list/c-320516742
[2] Collective Bargaining Agreement, (last visited Feb. 2, 2021), https://www.nhlpa.com/the-pa/cba
[3] NHL Public Relations, NHL, NHLPA announce medial protocols for 2020-21 season, (Dec. 22, 2020), https://www.nhl.com/news/critical-dates-and-rule-change-for-2020-21-nhl-season/c-319866552
[4] NHL Club Travel Protocol, (last visited Feb. 2, 2021), https://media.nhl.com/site/asset/public/ext/2020-21/2020-21ClubTravelProtocol.pdf at 9.
[5] Id. at 10.
[6] Wood v. Nat’l Basketball Asso., 809 F.2d 954 (2d Cir. 1987)
[7] Mackey v. NFL, 543 F.2d 606 (8th Cir. 1976)
[8] TSN Staff, Ovechkin among Caps to miss four games due to COVID-19 protocols, (Jan. 21, 2021), https://www.tsn.ca/alex-ovechkin-among-washington-capitals-to-miss-four-games-due-to-covid-19-protocols-1.1580736
[9] Collective Bargaining Agreement, (last visited Feb. 2, 2021), https://www.nhlpa.com/the-pa/cba (see page 4 of the Memorandum of Understanding for information on the new escrow arrangement)
[10] Tom Gulitti, Ovechkin, three other Capitals out four games due to COVID-19 protocol, (Jan. 21, 2021), https://www.nhl.com/news/washington-capitals-ovechkin-kuznetsov-samsonov-orlov-covid-19-list/c-320516742