This is my law review article that I wrote in June 2019, related to the CBA discussions. This was intended to discuss negotiations that persisted pre-COVID and relating to Article 8.6(c) of the NHL Collective Bargaining Agreement.
Introduction
In August 2016, Jimmy Vesey, the star forward of the Harvard Crimson men’s ice hockey team shocked the National Hockey League (hereinafter “NHL”) when he became a free agent. Formerly drafted by the Nashville Predators in the third round of the 2012 NHL Entry Draft—66th overall,[1] Vesey decided to take advantage of a rule in the NHL Collective Bargaining Agreement (hereinafter “CBA”) that allowed him to delay his signing with the Predators organization while he attended college for four years.[2] At the end of his college career, instead of signing with the Predators, he outwaited the period of time during which Nashville owned his NHL rights.[3] Once these rights elapsed, Vesey was free to sign with whomever he wanted, and he ultimately chose to join the New York Rangers.[4]
The fear of Vesey’s eventual decision to spurn the Predators in favor of free agency provoked Nashville to trade his rights to the Buffalo Sabres two months before he actually became a free agent. Ultimately, the Predators recouped a third-round pick, 76th overall.[5] Although the trade was a gamble for the Sabres who paid a “surprisingly solid bounty” to the Predators franchise that had no leverage in the situation, Buffalo hoped that its star player, Jack Eichel—a friend of Vesey’s—would help recruit him to the Sabres before any other team could have a chance to sign him.[6] However, that did not occur, and the two franchises suffered major losses because of it. The Sabres received no compensation after Vesey joined New York, while the Predators were fortunate to receive a 2016 draft selection occurring ten spots lower than Vesey’s initial spot in the 2012 NHL Entry Draft. Meanwhile, Vesey became a productive player for the Rangers before being traded to the Sabres, years later, in a different deal.[7]
What is surprising is that Vesey was not the first player, nor the last to use this provision of the CBA to become a free agent. However, his decision was the most publicized example of the repercussions of this rule,[8] which exists under Article 8.6(c) of the NHL CBA. Since Vesey’s decision, other prominent players have highlighted the controversial nature of this provision.
Under Article 8.6(c), any player who has been selected in an Entry Draft (“Drafted Player(s)”) who was a college student before his selection in the Entry Draft, or who became a college student and remained a college student through the graduation of his college class, is under the control of the team that selected him (his “Drafting Team”), for four years or through the August 15 of the year in which his college class graduates.[9] Through this clause, a Drafted Player may attend college for four years, graduate, and reject any offer made by his Drafting Team until the expiration of his Drafting Team’s exclusive rights of negotiation on August 15 of that year. Thereafter, the Drafted Player would become an unrestricted free agent who is free to sign an entry-level contract with any NHL team. As currently written, this provision is flawed, and it creates a “loophole” that allows college athletes to circumvent the NHL Entry Draft and the player rights system of the NHL. This “loophole” is compounded by the fact that it disproportionately affects North American players—primarily Americans—rather than their counterparts who previously played in Canadian Hockey League, Russia’s hockey leagues, or elsewhere in Europe.
Part I of this comment will provide overview of how NHL teams acquire rights to their Drafted Players, how the NHL Entry Draft functions, and how the National Collegiate Athletic Association (“NCAA”) provides a place for development for these Drafted Players. Part II will explain how those players can cause these rights to elapse, the flaws of Article 8.6(c), and how those flaws negatively impact NHL franchises and professional hockey players. Part III of this comment will explore how altering Article 8.6(c) will create a more beneficial system for teams and players, while still maintaining the reasoning behind this rule’s enaction.
Part I: Background
- The NHL Entry Draft Process and the Rights to Each Drafted Player
Under the CBA, each NHL Entry Draft is comprised of seven-rounds in which all thirty-one NHL teams are afforded one selection in each round.[10] At the end of the regular season, the NHL conducts a draft lottery to determine the first fifteen selections in the first round of that year’s NHL Entry Draft.[11] Only the first round selections belonging to the fifteen teams that failed to qualify for the NHL Stanley Cup Playoffs—regardless of whether the selection has been assigned to another team—are eligible for the lottery, and each eligible team is given specified odds of acquiring each one of these selections.[12]
After these picks have been determined via the draft lottery, the remaining first round selections are determined based on the timing of each team’s playoff elimination with uncertainty being determined by the team’s regular season record.[13] The last selection of the round is awarded to the Stanley Cup champions, while the thirtieth selection is awarded to the runner-up.[14] Lastly, the twenty-ninth and twenty-eighth selections are awarded to the two teams eliminated in the Conference Finals.[15] Since the lottery does not apply after round one, the first fifteen selections of rounds two through seven are determined by each team’s record in inverse order, while selections sixteen through thirty-one are calculated the same as in round one.[16]
The purpose for the NHL Entry Draft is to “provide a way to distribute talent to teams . . . fairly and in such a way to maintain competitive balance.”[17] That is why the Stanley Cup champions receive the last pick in the draft, while all non-playoff franchises are given a shot at the top players available in the draft through the draft lottery.[18] This system is often successful and it has allowed franchises like the Washington Capitals, the Pittsburgh Penguins, the Chicago Blackhawks, and the Los Angeles Kings to turn multiple losing seasons into periods of sustained success through the acquisition of top athletes available at the top of the draft.[19]
Under the current CBA, an athlete is eligible for the NHL Entry Draft if he is at least eighteen years old and does not fall into a specifically exempted category of player under the CBA.[20] At the time of the selection, an NHL team may draft any draft eligible player. That player’s Drafting Team then retains exclusive rights over that player based upon his age and the league in which he last played hockey.[21] There are also exceptions and additions to this rule. For example, if a Drafted Player who previously played for a team in the Canadian Hockey League decides to play in another league prior to turning age twenty, his Drafting Team “may retain [his] exclusive right of negotiation” for up to four total years.[22] Additionally, any team will retain the rights of a drafted eighteen or nineteen-year-old player for four years—or in some cases, until he graduates college—if he is a college student at the time of the selection, or if he becomes a college student within one year after his selection.[23] Lastly, any team that drafts a player who played, during the preceding season, for “a Club Outside North America” retains that player’s rights for at least four years, if the player was drafted at age eighteen or nineteen, or the Drafting Team will retain his rights for two years if the player is drafted at age twenty or older.[24]
- Antitrust Law and Collective Bargaining as Applied to Professional Sports
As the designated “exclusive bargaining representative of all present and future” NHL athletes,[25] only the National Hockey League Players’ Association (“NHLPA”) has the authority to bargain on behalf of the players.[26] This includes the ability to bargain for players who have not yet entered the NHL, since an athlete labor union has the ability to “advantage certain categories of players over others.”[27] Accordingly, under federal law, the NHL must respect the players’ right to unionize[28] and they have a duty to collectively bargain with the NHLPA in good faith over “wages, hours, and other terms and conditions of employment.”[29]
Although the application of the NHL Entry Draft would normally run afoul of federal antitrust law as a player restraint[30]—which is usually judged under the Rule of Reason[31] or under per se antitrust violations[32]—collective bargaining protects this conduct from any classification as a restraint of trade. This occurs because of two federal protections: the statutory labor exemption and the non-statutory labor exemption. Under the statutory labor exemption, antitrust law is inapplicable to labor unions or their “legitimate objectives.”[33] Whereas under the non-statutory labor exemption, a collective bargaining agreement “that [is] a product[] of good faith negotiation” can be shielded from antitrust scrutiny[34] when the agreement is a “mandatory subject of collective bargaining” and the agreement is created through a “bona fide, arm’s length” negotiation.[35] Thus, the NHL Entry Draft would surely meet these requirements since it was established between the NHL and the NHLPA through the enaction of the CBA, which “is the product of bona fide, arm’s length collective bargaining.”[36]
- The Recent History of Collective Bargaining in the NHL
While the “loophole” created under Article 8.6(c) can only be fixed through the collective bargaining process, that process is not easily attained in the NHL. Professional hockey has had a labor history unlike any of the other major professional sports leagues, and labor tensions between the NHL and NHLPA have been especially high since the early 1990s. These tensions have culminated in one player strike and three owner lockouts over the last thirty years.
In 1992, the NHLPA went on strike prior to the commencement of the Stanley Cup Playoffs,[37] which was followed shortly thereafter by a decision of the team owners to lock out the players in 1994.[38] Then, in 2004, the most notorious lockout occurred, in which the entire 2004–05 NHL season was lost (the “2004 Lockout”).[39] This marked “the first time a major pro[fessional] sports league in North America lost an entire season because of a labor dispute.”[40] In 2010, the NHLPA decided to hire Donald Fehr, a former Major League Baseball Players’ Association chief, to represent its players. Fehr—who had previously been involved in a major work stoppage in professional baseball—indicated a new direction for the NHLPA through his reputation for strong leadership and negotiation.[41] This move “signaled that, under Fehr, [the NHLPA would not] be the same . . . group of pushovers it was” during the 2004 Lockout.[42] Instead, the NHLPA’s message through his hiring was that they were prepared to take a stand against the NHL. Although Fehr’s initial statement to the media suggested he hoped a work stoppage in 2012 would be avoided,[43] another NHL lockout began prior to the start of the 2012–2013 season (hereinafter “2012 Lockout”). This lockout lasted 113 days, affecting the 2012–13 season and resulting in an abbreviated 48 game regular season that began on January 19, 2013.[44] Eventually, the 2012 Lockout produced the 2013 CBA that is currently in effect.
With the 2013 CBA is set to expire on September 15, 2022,[45] both the NHL and the NHLPA have the right to opt-out of the remaining term of the CBA in September 2020 by providing notice in or before September 2019.[46] This will almost certainly occur, since the NHL and the NHLPA have a myriad of disputed issues that are currently unresolved.[47] For example, despite these labor issues, the NHL continued to grow its product, netting ratings increases, expanding viewership, and increasing its revenue.[48] Now, this new era of NHL prosperity has kickstarted new labor issues over how to properly divide the new income between the NHL and its players. When asked about the new CBA negotiation, Donald Fehr did not mince words, stating that the “players are cognizant of the fact that in the last negotiations they made a series of significant concessions.”[49] These included a seven percent decrease in revenue percentage and a reduction in the maximum contract length for each player.[50] Presently, one can foresee a new labor dispute on the horizon. As further evidence of a future lockout in 2020, the NHL already cancelled its World Cup of Hockey, which was scheduled to commence in September 2020, a critical negotiations period for the new CBA.[51]
Despite the fear of another abbreviated or forfeited season, there is opportunity in each dispute. Since each labor strife occurs almost decennially, the 2020 CBA would be the most opportune occasion to fix the hotly-contested issues in the NHL—including the Jimmy Vesey Rule. Otherwise, each unresolved issue will have to wait until the expiration of this new CBA, which will likely not occur until the late 2020’s at the earliest.
- The Development of Hockey Players and Development in the NCAA
Although most NHL players’ careers begin at the NHL Entry Draft, the vast majority of Drafted Players do not immediately fight for roster spots on their Drafting Team after their selection. Instead, NHL teams often rely on unaffiliated institutions and leagues, such as the Canadian Hockey League, the NCAA, the Swedish Hockey League, the Kontinental Hockey League, the SM-Liiga, the Czech Extraliga, and the Alberta Junior Hockey League, to allow the plethora of their Drafted Players a method of development. While a player who is over eighteen is eligible to be placed in the NHL’s affiliated institution, the American Hockey League (“AHL”), this is often not the case. Unlike the aforementioned leagues, playing AHL hockey counts as the first year of the player’s entry-level contract, which is detrimental to the rights of the Drafting Team in the long run.[52] Thus, teams often do not immediately place eligible Drafted Players in the AHL until they have exhausted other means of development.[53]
Out of the 217 players selected in the 2018 NHL Entry Draft,[54] only four of them regularly played for their Drafting Team during the 2018–19 regular season.[55] As a result, the 213 Drafted Players who did not play full-time in the NHL during the 2018–19 season played in these aforementioned leagues to maintain and improve their skills. This occurs even if these players eventually play a handful of games in the NHL during the season. In future seasons, these players will try to make their Drafting Team’s roster through each team’s annual September training camp.[56] While Drafting Teams often do not see direct benefits from these players for several seasons, this system of development is beneficial to both the players and the teams, as it yields significant improvements to the players’ skills and psyches.[57] Meanwhile, their Drafting Team patiently waits to receive the benefits of their Drafted Players’ improvements.
Some of these Drafted Players may choose to participate in the NCAA. While some athletes choose the college route to further their education,[58] others decide to join to further their on-ice development, for the tradition of college hockey, or for a mix of any of these reasons.[59] Unlike other paths of development, “[p]laying college hockey offers a college degree and a viable chance” to become an NHL athlete.[60] Moreover, the biggest draw of college hockey is a chance to play against more mature players, which allows the Drafted Player’s statistics to translate to the NHL or AHL better than his counterparts playing in the Canadian Hockey League.[61] Unlike playing in the Canadian Hockey League, where the players’ ages usually range from sixteen to twenty,[62] the NCAA allows Drafted Players who are eighteen or nineteen years old to compete against more developed athletes who are playing as sophomores, juniors, and seniors in their early twenties.[63] In the NHL, the average age of players is 27.1.[64] Therefore, those extra years of maturity in one’s competition can make a difference in a Drafted Player’s development. Additionally, the Drafted Player can directly benefit by focusing on his own physical maturity while playing in college.[65]
However, despite this benefit to these Drafted Players, the NCAA has its own motivations for conducting college hockey games. Since its goal is to preserve the amateurism that comprises its product,[66] the NCAA’s Bylaws establish eligibility rules to eliminate any form of professional affiliation present in its athletes.[67] After all, the NCAA’s stated purpose for these eligibility requirements is to “retain a clear demarcation between intercollegiate athletics and professional sports.”[68] Thus, any athlete who wants to play college hockey after his selection in the NHL Entry Draft must adhere to these eligibility rules in order to play for his university.
These athletes must be extremely careful, as the NCAA maintains strict requirements that determine which athletes are eligible to participate in its sporting events. For example, hockey players that desire to maintain their NCAA eligibility are not allowed to sign professional contracts or accept payment in any form.[69] Furthermore, whenever an athlete attempts to sign a professional contract—regardless of that contract’s legal enforceability—the athlete forfeits his amateur status, and thus his eligibility to play in NCAA games.[70] Because these eligibility requirements have historically been upheld by courts despite several challenges under antitrust and constitutional law,[71] athletes must make “optimal decisions about their future” in hockey in spite of “poor and conflicting sources of information, the lure of professional money,” and the complexity of “the amateur-to professional transition.”[72] Should a player become ineligible to play NCAA hockey, any advantage he would otherwise have received from playing will certainly have been defeated, frustrating the likely true purpose of his college attendance—to improve as a hockey player by facing better competition.[73]
Despite these eligibility prohibitions, more recent amendments to the NCAA Bylaws have benefitted hockey players that wish to further develop in the NCAA before signing with NHL teams. For example, before enrolling at a university, a hockey player may now be represented by an agent if they: (1) do not receive benefits from the agent, (2) do not pay the agent for his/her representation, and (3) terminate the agent agreement prior to their enrollment as a full-time student.[74] Additionally, college hockey players are authorized to practice with professional teams, so long as these athletes do not receive compensation, sign any professional contract, or play in any games as a representative of their professional team.[75] NHL teams are even permitted to pay for athletes’ “actual and necessary expenses” incurred during private workouts and for NHL tryouts so long as the student-athlete does not miss class to take part in these activities and the tryout period does not exceed forty-eight hours.[76] Moreover, draft eligible college players may also attend the NHL Scouting Combine,[77] which allows draft eligible players a chance to impress NHL teams and scouts through physical workouts and interviews with various teams.[78]
Part II: The Elapse of NHL Rights to Drafted Players
- The Operation of Article 8.6(c)
Although these recent amendments are beneficial to NHL teams and soon-to-be NHL athletes, they do not solve the eligibility problem created by the NCAA’s Bylaws. This has forced the NHL to attempt to address these eligibility issues under Article 8.6(c). It states: “[i]f a Player drafted at age 18 or 19 is a bona fide college student at the time of his selection in the Entry Draft, or becomes a bona fide college student prior to the first June 1 following his selection in the Entry Draft, and remains a bona fide college student through the graduation of his college class, his [Drafting Team] shall retain the exclusive right of negotiation for his services through and including the August 15 following the graduation of his college class.”[79]
However, if a Drafted Player uses the Jimmy Vesey Rule to become an unrestricted free agent, then no compensation is awarded to his Drafting Team for his departure, unless that Drafted Player was formerly selected in the first round of the Entry Draft.[80] If the player was drafted in the first round, then his Drafting Team is compensated through the CBA with a compensatory draft selection that is “the same numerical choice in the second round in the Entry Draft immediately following the date that [his Drafting Team] loses [his] rights.”[81] While former-first round picks have become free agents using Article 8.6(c),[82] this comment instead focuses on the myriad of players who were not first round selections, as there is no present remedy for any team that select college athletes or potential college athletes in rounds two through seven.
Currently, this presents a growing problem, as recent changes to the league’s most utilized playing style[83] and the increasing importance of managing one’s players under a tight salary cap[84] have meant that later draft picks are incredibly important to a team’s long-term success (e.g. Niklas Hjalmarsson, Corey Crawford, Jake Guentzel). As the NHL focuses more on youth and speed, teams require more depth in these areas to compete. As this new playing style has been almost universally adopted, teams often look to NCAA hockey for its future players,[85] since the NCAA’s style seems to fit this growing trend.[86] This was especially reflected through the 2018 NHL Entry Draft, in which twenty-nine selections from rounds two through four played college hockey at the time of their selection or went on to play college hockey within one year of the draft.[87] Twenty-three selections from rounds two through four of the 2019 NHL Entry Draft played college hockey when drafted or the following season.[88] Additionally, other invaluable NCAA athletes who have been drafted in the second round or later—such as Johnny Gaudreau, Jonathan Quick, Ryan Miller, Connor Hellebuyck, Shayne Gostisbehere, and Colton Parayko—demonstrate the impact that non-first round college players can make on their respective Drafting Teams. Thus, the current Jimmy Vesey Rule is not an adequate solution to the increasing utilization of NCAA athletes in the NHL, especially when they are often selected from rounds two through seven of the Entry Draft.
- The Evolution of Article 8.6(c)
Article 8.6 has also evolved throughout the last three CBA’s with regards to college players. Under the 1995 CBA, a Drafted Player who was a college student at the time of his selection or who became a college student prior to June 1 of the next calendar year after his draft remained under the control of his Drafting Team “so long as he remain[ed] a bona fide college student and thereafter for 180 days plus the period between the end of said 180 days and the next June 1.”[89] Despite the relatively early development of this clause, the CBA still provided the compensatory pick as a remedy for teams that lost a prospect in the first round, whether he was an NCAA athlete or played elsewhere.[90]
The NHL even expanded upon the distinction of college athletes under the 2005 CBA. There, the June 1 expiration date was moved forward to August 15 generally if the player did not leave college before the graduation of his college class;[91] the Drafting Team no longer needed to make a “Bona Fide Offer” to the player in order to retain his rights if he became a college student within one season of his selection in the Entry Draft;[92] the player’s rights were kept for four years, if that player ceased to remain a “bona fide college student” during the period in which the team owned his rights;[93] and the Drafted Player’s rights became treated differently depending on the player’s age at the time of his selection.[94]
Moreover, the 2013 NHL CBA created a further distinction. Among the 2013 CBA’s changes, Drafting Teams gained the ability to extend the rights to the Drafted Player to four years if the Drafted Player became a college student within two seasons after his selection in the Entry Draft, so long as his Drafting Team had made him a bona fide offer.[95] Additionally, In light of these continued expansions, it seems at odds with the increasingly team-friendly Article 8.6(c) to continue to support the current iteration of the Jimmy Vesey Rule.
- Article 8.6(c) Entry-Level Contracts
In the NHL, most players’ first contract is an entry-level contract (“ELC”). With very few exceptions, players generally sign ELC’s regardless whether he was drafted, or went undrafted but signed with a team later. If a player is ages eighteen through twenty-one at the time of signing, the ELC will have a term of three years.[96] If a player signs at age twenty-two or twenty-three—a prime age group for Jimmy Vesey Rule free agents—the ELC will have a duration of two years, regardless whether the Drafted Player signs with his Drafting Team or another organization.[97] Under an ELC, a Drafted Player selected since the 2011 NHL Entry Draft can earn a maximum cap hit of $925,000,[98] which is calculated through the aggregate of the player’s base salary, any signing bonuses,[99] and any games played bonuses that count against the cap separately. This amount can be paid only at the NHL level, as these ELC’s inherently provide for a maximum of $70,000 in compensation if the player is assigned to the AHL.[100]
Additionally, these players can earn a small $25,000 bonus for playing in five NHL games or receive a slightly larger bonus for playing in ten or more NHL games.[101] Thus, the Drafting Team can create an incentive for players whose college season ends early to sign with them by: (1) providing a bonus for these players to sign and play with the NHL club before the end of the season, and (2) utilizing the first year of their two-year mandatory ELC during that run, allowing them to attain more appropriate compensation one season sooner. This process is colloquially known as “burning a year” off that player’s contract. In reality, a player may be talented enough to play in each remaining NHL game with his Drafting Team before the end of the season,[102] or a player may only play in fewer than five games with his team.[103] The myriad of variables present in the NHL allow this disparity to happen for any reason. But because these bonuses are subject to the “maximum aggregate” of that player’s salary, signing bonuses, games played bonuses,[104] the compensation awarded through these bonuses are not excessively significant.
- Notable Jimmy Vesey Rule Players
Since the enactment of the 2013 NHL CBA, several Drafted Players have become free agents under Article 8.6(c): Blaine Byron, Will Butcher, Alexander Kerfoot, Cal Peterson, Chase Priskie, Mike Reilly, and Jimmy Vesey. Because most of these players are still early in their careers and will continue to develop, the complete effects of their decisions have not yet been realized. However, based on their current career trajectories, some of these players project to become extremely valuable NHL players, which makes their loss to their respective Drafting Team even more injurious, especially since their teams significantly invested in these players because they foresaw them developing into valuable NHL players.
- Pre-2016 Article 8.6(c) Players
Before Jimmy Vesey, two prominent[105] second-round or later Drafted Players used the Jimmy Vesey Rule to become free agents. It is through players, like Justin Schultz in 2012—the first example of the Jimmy Vesey Rule among non-first round players—that the long-term effects of this rule have already been felt. Once drafted in the second-round by the Anaheim Ducks, Schultz delayed signing in Anaheim to attend the University of Wisconsin, ultimately deciding to sign with the Edmonton Oilers under the 2005 NHL CBA.[106] Schultz later stated that he chose Edmonton because he believed the Oilers would give him more playing time than he would have received in Anaheim.[107] After several seasons with Edmonton, Schultz was traded to the Pittsburgh Penguins, where became a top defenseman for the franchise and helped the team win two Stanley Cup championships.[108]
In 2015, Mike Reilly—selected in the fourth round of the 2011 NHL Entry Draft—also used this rule to spurn his Drafting Team, the Columbus Blue Jackets.[109] After the Blue Jackets attempted to sign him, Reilly, a third-year standout defenseman at the University of Minnesota, decided to sign with the Minnesota Wild.[110] Shortly thereafter, it was reported that Reilly had familial business connections to the Minnesota Wild, and that the club was also his hometown team.[111] Despite Reilly’s talent and impressive college hockey resume, he never managed to become the player that he was expected to be. Instead, he was assigned from the NHL to the AHL three times while under contract with the Wild, before he was eventually traded to the Montreal Canadiens where he has since played a supporting role.[112] Nevertheless, the Blue Jackets can only wonder what might have been, as at the time of Reilly’s free agency, Columbus had a “lack of depth” at his position, which might have given him a better opportunity to showcase his talents.[113] Yet, despite this missed opportunity, Columbus was given no compensation for his departure.
- The 2017 Quintet
One season removed from Jimmy Vesey’s decision in 2016, five players used the Jimmy Vesey Rule to become free agents. Of the five, Will Butcher became the most publicized free agent. Formerly drafted in the fifth round of the 2013 NHL Entry Draft by the Colorado Avalanche, Butcher went on to play hockey at the University of Denver where he won both a national title and a Hobey Baker Award for best college hockey player during his senior year in 2017.[114] However, unlike Vesey, he had previously been told by the former management of the Avalanche that Colorado was not interested in offering him a contract.[115] After his breakout season, then-newly promoted Avalanche General Manager Joe Sakic decided to offer him a contract.[116] Despite the managerial change, it was “too little, too late,” and Butcher signed with the New Jersey Devils where he had a successful rookie season in 2017–18.[117] Colorado’s blunder would cost them a great young defenseman, as they received no official compensation for Butcher under Article 8.6(c).
Coincidentally to Butcher’s decision, Harvard forward Alexander Kerfoot, formerly drafted in the fifth round of the 2012 NHL Entry Draft by the New Jersey Devils, signed with the Colorado Avalanche.[118] During his stay in Colorado, Kerfoot found success, establishing himself as a reliable point producer and a valuable playmaking centerman.[119] Kerfoot later stated that he chose the Avalanche due to the depth New Jersey possessed at his position.[120] Like with Colorado and Butcher, no compensation was officially given to New Jersey, although the Avalanche arguably offset the loss of Kerfoot by acquiring Butcher in the same offseason.
Next, goaltender Cal Petersen used Jimmy Vesey Rule to spurn his Drafting Team, the Buffalo Sabres. Drafted in the fifth round of the 2013 NHL Entry Draft, Petersen elected to forego his senior year at the University of Notre Dame to play professional hockey.[121] Coming off an outstanding performance at the NCAA’s Frozen Four in 2017, Petersen “wanted to use the opportunity to be a free agent” in spite of the Sabres’ ability to immediately offer him a starting job in the AHL.[122] He then signed with the Los Angeles Kings, whom he believed was the “clear-cut choice” to better his development due to the team’s highly rated goaltending coaches.[123] After signing with the Kings, Petersen became an all-star in the AHL, earning an NHL call-up in 2018–19 during which he played fairly well.[124] Meanwhile, over the course of two years, the Sabres had lost both Petersen—their fifth round pick—and Vesey’s rights, for whom they traded a third round pick, for no compensation.
Dominic Toninato had a different free agency experience. Once a fifth-round selection by the Toronto Maple Leafs in the 2012 Entry Draft,[125] Toninato, the former defensive forward standout from the University of Minnesota-Duluth, reached free agency in 2017, where he ultimately signed with the Colorado Avalanche.[126] At the time, the Leafs reportedly had reached the maximum level of contracts allowable under the CBA and already had a wealth of forward prospects.[127] Consequently, Toronto claimed they were only able to offer Toninato a minor league deal, which he stated he had no interest in accepting.[128] Despite this statement, he publicly acknowledged “waiting to hear from Toronto,” showing that he may have had interest in signing, but for Toronto’s lack of contract space.[129] Nevertheless, he became a free agent and since became an effective player for Colorado’s AHL team, while also playing in 39 NHL games over the last two seasons.[130] He was recently traded to the Florida Panthers.[131]
Blaine Byron became the last college free agent in 2017 to use the Jimmy Vesey Rule. Drafted in the sixth round of the 2013 NHL Entry Draft by the Pittsburgh Penguins, Byron delayed signing while he attended the University of Maine.[132] After the expiration of his college eligibility, Byron became concerned about the future of his professional career when saw that the Penguins had signed more competition at his position through the addition of an undrafted college player, Zach Ashton-Reese.[133] Upon entering free agency, Byron drew interest from teams who already had reached the maximum level of contracts allowable under the CBA or from teams who already possessed “a surplus of talent” at his position.[134] However, unlike the other Article 8.6(c) free agents of his year, he bet on himself by signing directly with an AHL team—the Springfield Thunderbirds— because of the organization’s “strong contingent” of University of Maine connections.[135] His contract included an out-clause should another NHL team offer him a contract, although the parent club the Thunderbirds, the Florida Panthers, would have a chance to match any offer.[136] One year later, the Thunderbirds re-signed Byron where he continues to play AHL hockey with Springfield.[137]
- The Continued Jimmy Vesey Rule Use in 2019
Recently, Chase Priskie used the Jimmy Vesey Rule to become a free agent.[138] Drafted in the sixth round of the 2016 NHL Entry Draft from Quinnipiac University by the Washington Capitals,[139] Priskie developed into a “standout” defenseman and earned a Hobey Baker Award nomination in 2019 while playing in the NCAA.[140] However, despite his success during his development time in college, Priskie informed the Capitals of his intention to become a free agent under Article 8.6(c).[141] The Capitals were unable to sign him at the conclusion of Priskie’s college season as Washington had already reached the maximum number of contracts allowed under the CBA.[142] Although the Capitals could have signed him on July 1, 2019 when their other contracts expire, Priskie signed with the Carolina Hurricanes after August 15.[143] It is speculated that he chose them because Carolina would give him playing time—there are even rumors of Carolina trading defenseman Calvin De Haan to increase the chances he makes the team, the Hurricanes have a successful history of developing defensemen, Carolina proved the NHL that they were legitimate threats after going to the Eastern Conference Finals in 2019, and Priskie wanted to play for coach Rod Brind’Amour.[144]
- The Detriments to the Drafting Team
In the cases of the aforementioned players, their decisions had substantial adverse effects on their respective Drafting Teams. After all, the rule allows the Drafted Player’s new team (“Signing Team”) to become enriched at the expense of the Drafting Team through the ability to sign these players in free agency. Since these prospects are signed to default ELC’s, the Signing Team can add a standout player with noteworthy potential to their roster for only a relatively small cap hit—since the CBA limits the amount of salary and bonuses these players can command—which makes these players a precious commodity in today’s cap conscious NHL. Not to mention that the Drafting Team does not receive the benefit of their decision to patiently wait for the Drafted Player to develop. Furthermore, the career achievements of these players and their plentiful suitors demonstrate that these later round prospects still have immense value.
Once the college hockey season ends, an NHL team may sign any player who decides not to return to college for another year or who is unable to do so, since there is no longer NCAA eligibility left to protect. This is especially true in the case of undrafted hockey players who are college seniors. However, this ability to sign a contract does not necessarily mean a contract will be immediately offered. As demonstrated by Byron, Priskie, and Toninato, NHL teams are only allowed to have fifty players under contract per year[145]—excluding certain categories of specifically exempted players.[146] Once a team has reached the 50 contract limit, that team must wait until June 30 for any expiring contracts to no longer count against the player limit.[147] In these scenarios, teams that already have 50 contracts are unable to sign their incoming college Drafted Players until a mere six weeks away from when that same player can become an unrestricted free agent under the Jimmy Vesey Rule on August 15.[148] Thus, there may be an added temptation for such players to “wait those few extra weeks and test free agency.”[149]
Because of these reasons, the Jimmy Vesey Rule has been criticized by team executives. After Schultz signed with the Oilers, Anaheim Ducks General Manager Bob Murray called the rule “unfair” to teams and fans.[150] He even contrasted Schultz’s decision with one of the most infamous conundrums in NHL history, the Eric Lindros trade.[151] Similarly, after trading Vesey’s rights to Buffalo, Nashville Predators General Manager David Poile characterized Vesey’s decision as a “loophole” that exists under a “bad rule.”[152] In response to this ability to become free agents, Poile anticipated more teams to take “their [Drafted Players] out of college . . . a year early to try to entice them with a contract.”[153] Before Poile stated this opinion, there was speculation that the Columbus Blue Jackets convinced its prospect Sonny Milano to choose the Canadian Hockey League over the NCAA—so that the Blue Jackets would not have to worry about his eligibility, an accusation that was swiftly denied by Columbus General Manager Jarmo Kekelainen.[154] But even if true, these suggested strategies would have inconsistent effects in practice, especially since certain players publicly describe how much they want to return to college to play during their senior year,[155] or when there are situations in which the player has familial or collegiate connections to a different NHL organization.[156]
Furthermore, this rule contradicts player and asset management systems usually made by NHL teams under the NHL CBA.[157] One example of this was Yale forward John Hayden, with whom the Chicago Blackhawks took a creative approach. Although Hayden, the former third-round pick of the Blackhawks, had the option to become a free agent in the offseason under Article 8.6(c), Chicago chose to sign him at the completion of his college season in March 2017.[158] One amount of leverage the team used was the ability to “burn one year off” of his two-year ELC.[159] Because he was able to sign near the conclusion of the NHL season, it counted as one full season for the purpose of his contract.[160] However, unlike his peers, Hayden did not receive any performance bonuses from the Blackhawks on his ELC.[161] This renders this team strategy ineffective in some cases, as these current statistical performance bonuses are unlikely to be attained in that amount of time.[162] Fortunately for Hayden—who has been inconsistent at the NHL level and has played in both the AHL and NHL, his subsequent contract extension increased his AHL salary from $70,000 to $750,000.[163]
- The Detriment to Non-College Hockey Players
Drafted Players Previously Playing Outside of North America
In spite of this “loophole,” Drafted Players who did not play college hockey have been not been granted the same treatment under the CBA. With these players, NHL teams still have a wide discretion on asset management, and that ability has been reflected through CBA amendments. Unlike college Drafted Players, the rules were changed for players who played the season prior to their draft year abroad (“International Drafted Player(s)”) by the 2013 CBA. The 2013 CBA added the Article 8.6(d) relating to “Players Drafted from a Club Outside North America,”[164] a distinction which was not expanded upon under the 2005 NHL CBA.[165]
Under the 2005 CBA, all International Drafted Players were subject to Article 8.6(a)(ii),[166] which provided that if a Drafting Team extended a Bona Fide Offer to the International Drafted Player, the team retained his rights until the second June 1 after the day on which he was drafted.[167] Should the International Drafted Player’s rights elapse, he would not become a free agent, instead needing to re-declare for the NHL Entry Draft.[168] This rule was highlighted by the case of Danish goaltender Frederik Andersen. There, the Carolina Hurricanes had selected Andersen—then twenty years old—in the seventh round of the 2010 NHL Entry Draft.[169] Although he was hailed as possibly the next starting goalie of the Hurricanes at the time, Carolina and Andersen could not come to terms on a contract.[170] His rights elapsed after two years, and then twenty-two year old Andersen re-entered the 2012 NHL Entry Draft, ultimately being selected in the third round by the Anaheim Ducks, and he has since become a successful NHL goalie playing for Anaheim and Toronto.[171]
In 2013, the rule affecting International Drafted Players was amended, although its impact would not have affected Andersen under the same facts due to Andersen’s age at the time of his decision. This amendment normalized the rules for International Drafted Players who were selected at twenty years of age or older, regardless of where they last played.[172] The change instead affected any International Drafted Player who was selected at age eighteen or nineteen. In those circumstances, like under Article 8.6(c) with NCAA players, the period during which the Drafting Team would control such player’s rights was increased to four years.[173] These rights systems depend heavily on separate transfer agreements that the NHL negotiates with certain leagues in Europe—such as in Sweden and Finland, which is where up to four years of team control can benefit the Drafting Team and the player’s European club.[174]
Drafted Players Previously Playing in North America
The rules are completely different for Drafted Players (regardless of their country of origin) who spent the season preceding their selection in the NHL Entry Draft playing in North American leagues—such as the Canadian Hockey League, Canada’s Junior A leagues, NCAA hockey, American high school leagues, the North American Hockey League, and the United States Hockey League. Thus, these players’ respective careers are dictated by their differing developmental paths.
This is also where the eligibility rules of the NCAA have the biggest impact. A player who previously played in the Canadian Hockey League—which is comprised of three major junior leagues: the Ontario Hockey League, the Quebec Major Junior Hockey League, and the Western Hockey League—is considered a professional player under NCAA regulations and is therefore ineligible to play collegiate hockey.[175] The NCAA takes the position that because these players are given a stipend of less than $150 per week, they are being paid as professionals.[176] Because this eligibility rule directly disadvantages Canadian major junior players, it was challenged in Colorado Seminary (University of Denver) v. National Collegiate Athletic Association, where the rule was nonetheless upheld.[177] Since the Colorado Seminary case, the NCAA has amended the rule against major junior hockey, allowing formerly ineligible major junior players to petition to restore their eligibility to play in the NCAA.[178] However, because the restoration forces the player to sacrifice at least one year of eligibility and an entire season of development,[179] it is impractical in almost all cases, assuming that the player’s petition was even consistently granted.
Meanwhile, because the NCAA distinguishes between Canadian major juniors, like the Canadian Hockey League, and other forms of junior leagues, such as Junior A Canadian—leagues like the Alberta Junior Hockey League—hockey players from Junior A leagues are eligible to play in the NCAA and often will.[180] This difference is also highlighted by former Quebec Major Junior Hockey League forward Samuel Dove-McFalls, who was not offered a contract by the Philadelphia Flyers after the Flyers selected him in the 2015 NHL Entry Draft.[181] He now plays in U-Sports[182] in Canada because he is ineligible to play in the NCAA.[183] Furthermore, American junior leagues do not create this type of ineligibility. Unlike major junior players, Drafted Players who previously played in the United States Hockey League and the North American Hockey League are not rendered ineligible by their participation in these leagues. In fact, this route is becoming more and more customary among American players[184]
Major junior players are even treated differently under the NHL CBA. Generally, major junior players’ rights can be held by their Drafting Team for up to two-years[185] and Drafted Players who played major junior hockey do not have the Jimmy Vesey Rule. Instead, if an eighteen-year-old major junior player leaves the Canadian Hockey League prior to turning twenty years of age, his Drafting Team will hold his rights for four years.[186] Whereas if a nineteen-year-old major junior player leaves the Canadian Hockey League prior to turning twenty years of age, his Drafting Team holds his rights for three years.[187] Unlike their counterparts who play college hockey, these players do not have eligibility restrictions on entering professional contracts, and they are directly excluded from participating in NCAA hockey, which makes it more difficult for them to wait out their eligibility and earn some semblance of the Jimmy Vesey Rule.
Furthermore, if these Drafted Players do not sign for any reason, they do not become free agents. Instead, they must re-enter the NHL Entry Draft.[188] One example of this is Western Hockey League forward Connor Bleackley. Bleackley was initially drafted by the Colorado Avalanche in 2014, and subsequently traded to the Arizona Coyotes, where Arizona chose not to sign him.[189] Pursuant to the NHL CBA, he had to re-enter the Entry Draft after his Arizona rights expired, and he was later selected in the sixth round in 2016 by the St. Louis Blues.[190] He then signed a three year ELC with the team and has remained with the Blues’ through 2019.[191]
Because of the disproportionate application of the player rights system, at least one NHL athlete has voiced his displeasure at this rule. After Alexander Kerfoot signed with Colorado, Brandon Dubinsky of the Columbus Blue Jackets took to Twitter to share his thoughts on the Jimmy Vesey Rule. Dubinsky, a former Canadian Hockey League player who was drafted by the New York Rangers and worked his way through the Rangers system to reach the NHL,[192] lashed out at the rule, calling it “a joke, especially to the guys that play major junior [hockey].”[193] In his subsequent tweet, he stated “I bet the teams that make the draft pick would agree with me as well!,”[194] matching the sentiment expressed by General Managers Bob Murray and David Poile.
- The Impact of the Jimmy Vesey Rule on College Hockey Players
Despite the outrage from team executives and Brandon Dubinsky, the Jimmy Vesey Rule’s positive, non-developmental features are beneficial to players, even if they do not choose to become free agents under the rule. Similar to their counterparts in professional baseball who can opt not to sign with a team and return to a subsequent draft,[195] Drafted Players theoretically gain leverage out of the situation by way of their contract negotiations by forcing these players to make a decision towards the end of the season.[196] While, in practice, that argument depends on the perceived value of the each specific player, this tactic has been used in the past. A prominent example is the aforementioned situation in which Chicago burned a year off of John Hayden’s ELC, a tactic that was also used by the Vancouver Canucks with one of its forwards, Adam Gaudette.[197]
The ability to burn a year as a result of this rule can also be very financially helpful to Drafted Players who played college hockey, as it allows them to reach more appropriate financial compensation on the same trajectory as their counterparts who played elsewhere. Under the CBA, NHL teams can “slide” the ELC’s of their eighteen and nineteen-year-old prospects for up to two years.[198] In these scenarios, a player who has been “slid” for the maximum amount of two years will enter the first year of his three-year ELC at twenty years old, bringing him to his first non-ELC contract when he reaches around age twenty-three. This potentially enables him to much more quickly attain higher compensation than the college senior.[199] In comparison, the Article 8.6(c) college senior who comes in the league at twenty-two years old must sign a two-year ELC.[200] This means that the Drafted Player loses a year of non-ELC compensation, which can include millions of dollars’ worth of losses in career earnings.[201] This option to burn a year during the season allows that player’s ELC to expire at age twenty-three, the same age as his other prospect counterparts.
Additionally, the Jimmy Vesey Rule potentially enables players to receive the ELC maximum of performance bonuses, signing bonuses, and base salary due to the player’s value in the free market. Should the Drafting Team refuse to adequately compensate its Drafted Player, that player could seek other teams in free agency who were more willing to compensate him. Players such as Jimmy Vesey, Will Butcher, and Justin Schultz showcase this compensation difference, as each received high amounts of performance bonuses in their ELC’s, despite the fact that none of them were drafted in the first round.[202]
- The Team Control Dilemma
There is also an antitrust reason why these Drafted Players should be given some sort of leverage over the Drafting Team. In Philadelphia World Hockey Club v. Philadelphia Hockey Club,[203] the NHL’s right to perpetual team control was invalidated. There, the court found that the NHL’s use of its reserve clauses that was present in each contract was unenforceable. These clauses equally bound “minor-league professional players” as well as superstars, especially in light of the clause being opposed by the NHLPA and not the product of “serious, intensive, arm’s-length collective bargaining.”[204] Thus, the court utilized public policy to disallow this type of team control of professional hockey players.[205] This attitude against this type of team control survives through Article 8.6(c) and other similar clauses,[206] because such clauses allow players a means of freedom and the ability to gain leverage in negotiations that are otherwise exclusive to one team.
In spite of that reasoning, indefinite team control prior to a player’s actual signing is not abnormal in 2019. After all, due to the lack of a transfer agreement between the NHL and Russia’s Kontinental Hockey League (“KHL”), Drafting Teams hold indefinite rights to their respective Drafted Players who play in Russia.[207] For example, the Vegas Golden Knights owned the signing rights to KHL star forward Nikita Gusev for several years. Drafted in the seventh round of the 2012 NHL Entry Draft by the Tampa Bay Lightning, Gusev’s rights was traded to the Golden Knights where he remained on Vegas’ reserve list while he continued his career in Russia.[208] Because of the continuously extended no-tampering agreement between the KHL and the NHL,[209] Gusev, who will turn twenty-seven years old this summer, remained the property of Vegas, which forced him to sign with the Golden Knights when he eventually opted to play in North America.[210] This occurs in spite of Article 8.6(c)’s termination of rights to European players after four years and this policy has thus far superseded it.
Part III: How Can Article 8.6(c) Be Amended?
For the aforementioned reasons, Article 8.6(c) should not be abolished in its entirety, as it serves a particular purpose by ensuring appropriate compensation leverage for players seeking to earn their college degrees or further their development. At the same time, however, slight amendments to this clause would help establish a much fairer NHL rights preservation system that treats players more uniformly, regardless of their pre-draft careers and development paths after their selection. Additionally, through the following various amendments, the Drafting Teams can reduce the current uncertainty that exists under the Jimmy Vesey Rule.
- Moving Forward the Expiration Date of Players’ Rights
The first potential solution is moving forward the expiration date of the college players’ rights. Currently, the 2013 CBA allows the rights to Jimmy Vesey Rule players to expire on August 15 of that year, which occurs during an awkward time during the NHL schedule. This expiration date has been moved before, and was even changed from June 1 in the 1995 CBA to August 15 in the 2005 CBA. This was done to create leverage by allowing such players to hear free agent offers after the commencement of the NHL free agency period on July 1.[211]
In the NHL, the Stanley Cup Playoffs conclude in early June, while the NHL Entry Draft takes place in late June.[212] Next, the commencement of NHL free agency begins on July 1 and continues throughout the summer.[213] Because the starting date of training camp is set by NHL franchises[214] and usually takes place in September, there tends to be a late summer lull in NHL activity.[215] This occurs because at that point, “most free agent signings [are] on (sic.) the books and trading activity [has become] sporadic,”[216] while all salary arbitration cases involving restricted free agents have also concluded.[217] It is during this lull when the free agency sweepstakes for Jimmy Vesey Rule players begin: August 15. Moving the expiration date forward nearer to training camp would help remove some of the fanfare from these decisions. This might not only reduce the risk of losing players who opt for free agency, but also remove the negative fan perception[218] of players who choose to become free agents under Article 8.6(c).
To make this change, one date stands out as a possible choice: September 18. September 18 occurs during each NHL team’s official training camp, allowing each team to better assess their Drafted Players, projected NHL players, and free agent signings. By then, teams will long have conducted rookie camps and camp scrimmages so that the team can properly evaluate other players at that Jimmy Vesey Rule player’s position. As currently written, the Drafting Team is unable to easily remedy the loss of its player, since almost all replacement free agents have been signed and the Entry Draft has already concluded. Currently, teams facing this situation must wait for the NHL waiver period, in which teams can claim eligible players cut from training camp by other teams, to remedy any prospect loss. But even that remedy forces the team to passively rely on other teams cutting similar players that have the requisite amount of experience to be susceptible to the NHL waiver wire from their respective NHL rosters and there is no guarantee they will be able to acquire a player with similar talent or potential.
Because of the timing of training camp, Jimmy Vesey Rule players seeking to participate in the NHL experience will be more inclined to sign during this extra month extension, since the player must further hold out to for the expiration of his rights. This idea is nothing new in the NHL[219] and that tactic tends to create more leverage for players who use this tactic pursuant to other sections of the CBA. Furthermore, nothing in this change would prevent the Drafting Team from signing him earlier in March, at the conclusion of his college career, and enabling the team to burn a year off of his two-year ELC.
Additionally, from the perspective of the Article 8.6(c) soon-to-be free agent, the player can either obtain more leverage from his Drafting Team in the event that his club has a need at his position due to another player’s underperformance or injury. In the alternative, should he become a free agent, he may be able to better assess how he will fit into the Signing Team’s long-term plans by properly assessing the depth already possessed by potential Signing Teams. He will then have the option of signing with that new team and joining them during their training camp or in advance of the start of the NHL regular season, which occurs in early October. Even if he leaves his Drafting Team, he may be more inclined to sign with a struggling team that would likely have a roster spot open for him, which would fix any parity question raised because of this rule. Moreover, should he not receive any offer from an NHL team, he will still be able to sign with an AHL team before the beginning of the AHL regular season.[220] Regardless where he intends to play, that player gains monetary leverage, better information regarding each team, and a safety net of playing in the AHL, while his Drafting Team is given the signing advantage of allowing him more opportunity in training camp. However, if the expiration date occurs during the NHL regular season, it may be harder for that player to secure an AHL position or join another NHL team, which would effectively neutralize any leverage advantage he would have otherwise received under Article 8.6(c).
With this date change, Drafted Players would receive less pressure to leave school early, allowing them to focus on completing their college degrees, instead of leaving after three years. Currently, the typical college season ends fewer than five months away from this deadline, so teams are incentivized to sign a player as quick as possible, often attempting to take them out of college early.[221]
- Similar Treatment to Restricted Free Agents
Compensation for Lost Players
Another potential solution is to keep the expiration date of such rights the same but allow the Signing Team to compensate the Drafting Team for that player’s loss.[222] Analogous to this proposal, teams controlling restricted free agents[223] are given such compensation. Unlike a Jimmy Vesey Rule player, a restricted free agent can be offered a contract by any NHL team while that player is under the team control of his NHL team. However, his team may match the offer made by any other team under a right of first refusal, or his team can allow the new team to sign its restricted free agent and accept draft pick compensation based on the average salary of the contract accepted.[224]
Using the framework of that provision, the Signing Team could compensate the Drafting Team by giving the Drafting Team the same pick in the upcoming draft as the Jimmy Vesey Rule player’s initial position. For example, if the player was drafted in the third round, then the Signing Team would give the Drafting Team its third-round selection in the next Entry Draft. Such compensation would have to be proportional to his selection round, rather than proportional to his selection number or based upon his salary. Since Jimmy Vesey Rule players are limited in the maximum amount of salary they can earn on an ELC, their compensation will always be below the minimum compensation amount that is listed in the CBA for restricted free agents.[225] This solution would not be as drastic to the restricted free agent rule, as restricted free agent compensation can reach a maximum of compensating the player’s prior club with four first round draft picks,[226] but this solution would provide more equitable compensation than Drafting Teams are awarded by the NHL when they lose first round pick Drafted Players under the Jimmy Vesey Rule. In furtherance of this solution, recall that Buffalo traded their third-round selection to the Nashville Predators in exchange for the negotiation rights to Jimmy Vesey, who was a former third-round pick.[227] If the Sabres were willing to give the Predators essentially par value—a third round pick for a former third round player—it seems equitable to have any future Signing Team give a proportional pick to the Drafting Team after signing a future Jimmy Vesey Rule player.
The Drafting Team’s Ability to Match
Although college Drafted Players would be treated similarly to restricted free agents under this proposal, the Drafting Team should not have a right to match the player’s offer and sign their own Drafted Player, as those teams can with restricted free agents. In theory, this ability would still maximize monetary leverage by being able to match a potential Signing Team’s highest offer, but the assent component could theoretically be missing in this scenario. Although the player’s Drafting Team is able to retain him, the need for a player’s consent to this agreement is essentially removed. This differs from the restricted free agent who earlier agreed to the terms of his ELC—whether or not it was signed with a previous team—as that ELC contained an assignability clause and a right of first refusal before its eventual expiration.
Despite this reasoning, there is a split in authority regarding the treatment of other prospects. For example, Canadian Hockey League players are not forced to sign with their Drafting Team and can opt to return to a second NHL Entry Draft to be selected again. In contrast, KHL players are subjected to this type of exclusivity by requiring, upon their entrance to the NHL, to sign with the team that owns their rights, or for that team to trade him to another team with whom he must negotiate. Either way, the team owning his rights constructively controls his assent. But, that occurs because the Drafting Team must honor the NHL’s no-tampering agreement with the KHL and the team is not allowed to negotiate with that player until his contract expires with his current KHL team[228] or his KHL team grants his NHL team permission to negotiate.[229] Similarly, the NCAA has constructively created a semblance of a no-tampering agreement with the NHL through its eligibility rules by rendering signed players ineligible to compete. Thus, in determining the appropriate solution to this rule, the NHL and the NHLPA would have to determine if college players should be treated under the general prospect rule, or akin to the current treatment of KHL athletes.
- Increasing the Games Played Bonus to Incentivize Signing at the Conclusion of the NCAA Season
Lastly, the NHL and NHLPA could follow and expand upon the example set by the Vancouver Canucks and Chicago Blackhawks, who both signed their Drafted Players by offering the opportunity to burn a year off of their respective contracts. A potential amendment to the Article 8.6(c) “loophole” could involve increasing the amount of performance bonuses received for playing in five games and ten games, respectively. To do so would require amending Article 9.7, as to remove “games played bonuses” from the aggregate total, instead classifying them as performance bonuses under the CBA. The CBA designates these performance bonuses as “outside the Entry Level Compensation limits” set by Article 9.3.[230] That means that teams do not have to worry about their calculation in terms of average annual value cap hits. However, these bonuses will count against the team’s salary cap, even though teams are allowed to exceed the cap because of these bonuses by up to 7.5 percent.[231] This would allow each team’s management more discretion in deciding when to issue these bonuses; while players, through their agents, would be able to negotiate over this issue.[232]
This solution is likely the hardest one to implement, since it involves changing an additional provision in the CBA and increasing compensation for all Drafted Players, not just Jimmy Vesey Rule players. However, this compensation increase would also assist the Jimmy Vesey Rule player’s Drafting Team in its competition to retain his services, as it would allow the team to offer that player the opportunity to burn a year off his contract at the conclusion of his college career—before his graduation—and even potentially pay him more than any other Signing Team could during the offseason at the expiration of his rights.
- Implementing the Proposed Solutions
With another lockout potentially looming in the near future, both the NHL and the NHLPA have an opportunity to jointly create a solution that is equitable to all current Drafted Players, all future Drafted Players, and each NHL team. To that end, the most appropriate solution should be one that (1) functions in the best interest of all of these parties and (2) does not create added division between the NHL and the NHLPA as to further stall the negotiating process and make another lockout more likely to occur. Thus, in order to effectuate the most practical change to the Jimmy Vesey Rule in the next CBA, Article 8.6(c) must be altered to equally balance the Drafting Team’s desire to receive the benefit of its scouting ability with the player’s desires to attend college and create leverages before negotiating for his services. To further these goals, each of the proposed solutions represents a CBA revision that can be implemented either exclusively or cumulatively, depending on the amount of team control over prospect rights that is amenable to both the NHL and the NHLPA. Both parties should accomplish this, especially when this specific provision has been increasingly altered with each passing CBA negotiation.
The first two solutions—delaying the date of expiration of the players’ rights and treating the rights of college drafted players as akin to restricted free agents—are the two most realistic implementations. Both of these proposals are based on precedential clauses that have been enacted in the past and their application would be based on symmetrical reasoning. Therefore, implementing these amendments will not substantially change other provisions of the CBA, while still creating an equitable solution for all under an altered version of the Jimmy Vesey Rule.
In the alternative, the bonus increase may be the most practical solution to Article 8.6(c), considering that this solution has already being used by NHL teams. This change, while being overall more NHLPA friendly,[233] would codify the current reality of NHL teams’ treatment of their prospects and provide extra incentives for the players to join their Drafted Teams, rather than any new Signing Team. Furthermore, this increase, which would not affect Article 8.6, could be applied evenly across all Drafted Players, equally dispersing higher bonuses among all NHL prospects.
Part IV: Conclusion
While abolishing the Jimmy Vesey Rule in its entirety would almost certainly kill the bargaining power of free agents who have given up compensation in exchange for development, the Jimmy Vesey Rule highlights a disparity in the unequal treatment of up and coming professional athletes, as to the effect that the rule itself discriminates against non-NCAA athletes.
Through these potential changes, the NHL and the NHLPA should alter this rule, as to make the player rights system fairer for all players, regardless of their pre-NHL background. Should any or all of the foregoing resolutions be implemented, Article 8.6(c) players will still be able to attend college and receive the same appropriate compensation as their counterpart prospects, while not sacrificing bargaining power because of an increase in team control. Likewise, Drafting Teams will be given more discretion and a better opportunity to utilize their business judgement as to whether they should even keep a particular Drafted Player, while, at the same time, allowing the team to gain more information about the market for that player’s services, or even compensation in exchange for that player.
Because of the unpredictable effects of the Jimmy Vesey Rule’s current utilization, Article 8.6(c) is yet another contentious issue that needs resolution, despite professional hockey’s continuous labor dispute. Through this new 2020 CBA negotiation, the NHL and NHLPA have been afforded the opportunity to clean up a muddy Article that has been disfavored by teams and players. As the NHL hockey product continues to grow and change demographically, the union and the league should reevaluate if improvements can be made to this rule, especially during this time that effectuates the changing of the CBA guard.
[1] Jimmy Vesey, Elite Prospects (last visited Feb. 16, 2019), https://www.eliteprospects.com/player/121865/jimmy-vesey.
[2] Collective Bargaining Agreement Between the National Hockey League and the National Hockey League Players’ Association art. 8.6(c), NHLPA.com (2013), https://www.nhlpa.com/the-pa/cba [hereinafter 2013 NHL CBA].
[3] Griffin Foster, How Jimmy Vesey Escaped Through the Loophole that is Article 8.6(c), Fansided (2016), https://fansided.com/2016/03/31/jimmy-vesey-escaped-loophole-article-8-6c/.
[4] Charlie Roumeliotis, Jimmy Vesey Chooses to Sign with Rangers Over Blackhawks, NBC Sports (Aug. 19, 2016, 4:55 PM), https://www.nbcsports.com/chicago/chicago-blackhawks/jimmy-vesey-chooses-sign-rangers-over-blackhawks.
[5] Allan Muir, Predators’ Jimmy Vesey Trade Gives Sabres a Shot at Top Prospect, Sports Illustrated (Jun. 20, 2016), https://www.si.com/nhl/2016/06/20/jimmy-vesey-trade-predators-sabres-free-agency.
[6] Id.
[7] See Jimmy Vesey, Hockey-Reference.com (last visited Feb. 16, 2019), https://www.hockey-reference.com/players/v/veseyji02.html; see also Vesey Traded to Sabres by Rangers, NHL.com (Jul. 1, 2019), https://www.nhl.com/news/jimmy-vesey-traded-to-buffalo-by-new-york/c-308141524 (describing that Vesey eventually joined Buffalo after the Sabres paid another third-round pick to New York for his services).
[8] See Chris Peters, Jimmy Vesey Is About to Become a Free Agent: 5 Things to Know, CBS Sports (Aug. 15, 2016, 12:05 PM), https://www.cbssports.com/nhl/news/jimmy-vesey-is-about-to-become-a-free-agent-5-things-to-know/ (stating that Vesey became “the biggest name in the NHL” once he hit free agency due to his “standout” college hockey career and potential for success); Chris Peters, Four Things to Know about the Jimmy Vesey-Predators Drama, CBS Sports (Mar. 29, 2016, 4:15 PM), https://www.cbssports.com/nhl/news/four-things-to-know-about-the-jimmy-vesey-predators-drama/ (summarizing that after Vesey allegedly reneged on prior commitments to the Predators, its management publicly dismissed his representatives for giving him “bad advice”); Brett Barrett, The Jimmy Vesey Sweepstakes Begins, Pro Hockey Rumors (Aug. 15, 2016, 11:49 AM), https://www.prohockeyrumors.com/2016/08/jimmy-vesey-sweepstakes.html (describing that the expectation for Vesey to “step right in [to the NHL] . . . and produce” points led to a “bidding war” among teams for his services).
[9] See 2013 NHL CBA art. 8.6(c)(i).
[10] Id. at art. 8.1–8.2.
[11] 2018 NHL Draft Lottery Odds Announced, NHL.com (Apr. 8, 2018), https://www.nhl.com/news/2018-nhl-draft-lottery-odds-announced/c-297818406.
[12] Id.
[13] Elliotte Friedman, 30 Thoughts: How Playoffs Affect Draft Position, Sportsnet (Apr. 29, 2015, 12:12 PM), https://www.sportsnet.ca/hockey/nhl/30-thoughts-how-playoffs-affect-draft-selection/ (“Teams eliminated in the first two rounds [of the playoffs] who did not win [their] division come next, followed by those who did win a division, but lost before the Eastern [Conference] and Western [Conference] Finals. Again, fewest points [which are awarded based upon the team’s record] equals a better selection.”).
[14] NHL Draft Order, NHL.com (last visited Feb. 15, 2018), http://www.nhl.com/ice/page.htm?id=86689.
[15] Id.
[16] Eric Stephens, NHL Draft Order 2018: Complete Selection List for Rounds 2–7 Before Picks are Made, SBNation (Jun. 23, 2018, 9:00 AM), https://www.sbnation.com/nhl/2018/6/23/17486894/nhl-draft-2018-order-rounds-2-7-selections-picks.
[17] Jeffery A. Rosenthal, The Amateur Sports Draft: The Best Means to the End?, 6 Marq. Sports L. Rev. (1995) (stating the arguments in favor of amateur drafts in professional sports); see also Smith v. Pro Football, 593 F.2d 1173, 1175–76 (U.S. App. D.C. 1978) (“[An entry draft] is designed to promote ‘competitive balance.’ By dispersing newly arriving player talent equally . . . with preferences to the weaker clubs, the draft aims to produce teams that are as evenly-matched on the playing field as possible.”).
[18] See Odds Released for 2013 NHL Draft, USA Today (Mar. 4, 2013, 5:19 PM), https://www.usatoday.com/story/sports/nhl/2013/03/04/nhl-draft-lottery/1963071/ (noting that although the draft lottery was first implemented in 2013, the team that finishes with the worst record will not drop significantly); see also Jeff Seide, Tanking Killed the NHL Lottery, The Hockey Writers (May 2, 2017), https://thehockeywriters.com/tanking-killed-the-nhl-lottery/ (describing that the draft lottery was imposed to discourage teams from taking measures to purposely lose games to receive the number one overall selection).
[19] See, e.g., Kevin Paul Dupont, How Alex Ovechkin and Evgeni Malkin Have Left Their Marks as 1–2 Picks, The Boston Globe (Apr. 28, 2018), https://www.bostonglobe.com/sports/bruins/2018/04/28/how-alex-ovechkin-and-evgeni-malkin-have-left-their-marks-picks/HMQbxm83IaLyQmjkfOSFLL/story.html.
[20] 2013 NHL CBA art. 8.4(a) (stating that “[a]ll Players age 18 or older are eligible for claim in the Entry Draft, except” for players whose rights are already owned by an NHL team, players who have been selected in two prior Entry Drafts, players who have played in the NHL and become free agents under the CBA, players who are twenty-two or older who have not been already claimed in prior Entry Drafts, and players twenty-one or older who have played at least one season in North America from ages eighteen through twenty and who were not previously selected in any prior Entry Draft).
[21] See id. at art. 8.6(a) (stating that the general rule is that an NHL team controls a Drafted Player’s rights for one year, unless they make a “Bona Fide Offer” to that player before the year elapses, in which case the team is given an extra year of control).
[22] Id. at art. 8.6(b).
[23] Id. at art. 8.6(c).
[24] Id. at art. 8.6(d).
[25] Id. at art. 2.1.
[26] National Labor Relations Act, 29 U.S.C. § 159(a) (1959) (“Representatives designated or selected for the purposes of collective bargaining . . . shall be the exclusive representatives of all employees . . . for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment.”).
[27] See Clarett v. NFL, 369 F.3d 124, 139 (2nd Cir. 2004) (“The union representative may, for example, favor veteran players over rookies, and can seek to preserve jobs for current players to the detriment of new employees and the exclusion of outsiders.”) (citations omitted).
[28] National Labor Relations Act, 29 U.S.C. § 158(a)(1) (1974) (“It shall be an unfair labor practice for an employer . . . to interfere with, restrain, or coerce employees in exercise of the rights [to organize].”).
[29] National Labor Relations Act, 29 U.S.C. § 158(d) (1974).
[30] Sherman Act, 15 U.S.C. § 1 (2004) (“Every contract . . . or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal.”); Smith v. Pro Football, 593 F.2d 1173, 1187 (U.S. App. D.C. 1978).
[31] Smith, at 1182 (stating that under the Rule of Reason, the “procompetitive virtues” must be weighed against “anticompetitive” effects to determine if the conduct has a “legitimate business purpose”); see also Mackey v. NFL, 543 F.2d 606, 620 (8th Cir.1976) (“The focus of an inquiry under the Rule of Reason is whether the restraint imposed is justified by legitimate business purpose, and is no more restrictive than necessary.”).
[32] See N. Pac. Ry. Co. v. United States, 356 U.S. 1, 5 (1956) (“[T]here are certain agreements or practices which because of their pernicious effect on competition and lack of redeeming virtue are conclusively presumed to be unreasonable, and therefore illegal.”).
[33] Clayton Act, 15 U.S.C. § 17 (1914).
[34] Walter Champion, Clarett v. NFL and the Reincarnation of the Nonstatutory Labor Exemption in Professional Sports, 47 S. Tex. L. Rev. 587, 592 (2006); see also Connell Const. Co. v. Plumbers and Steamfitters Local Union No. 100, 421 U.S. 616, 622 (1975) (citing Meat Cutters v. Jewel Tea. Co., 381 U.S. 676 (1965)) (“[A] proper accommodation between the congressional policy favoring collective bargaining under the [National Labor Relations Act] and the congressional policy favoring free competition in business markets requires that some union-employer agreements be accorded a limited nonstatutory exemption from antitrust sanctions.”); Brown v. Pro Football, 518 U.S. 231, 237 (1996) ([I]t would be [almost] impossible[] to require groups of employers and employees to bargain together, but at the same time to forbid them to make among themselves or with each other any of the competition-restricting agreements potentially necessary to make the process work or its results mutually acceptable.”).
[35] See Clarett v. NFL, 369 F.3d 124, 140–41 (2nd Cir. 2004); Champion, at 592.
[36] 2013 NHL CBA, Preamble.
[37] Melanie Aubut, When Negotiations Fail: An Analysis of Salary Arbitration and Salary Cap Systems, 10 Sports Law. J. 189, 194 (2003).
[38] Id.
[39] Associated Press, Lockout Over Salary Cap Shuts Down NHL, ESPN (Feb. 16, 2005), http://www.espn.com/nhl/news/story?id=1992793.
[40] Id.
[41] See Travis Hughes, Report: Donald Fehr to Become NHLPA’s Executive Director, SBNation (Aug. 25, 2010), https://www.sbnation.com/2010/8/25/2319929/report-donald-fehr-to-become-nhlpas-executive-director.
[42] Travis Hughes, NHL Lockout Timeline: Let’s Remember the Whole Nightmare, SBNation (Jan. 6, 2013), https://www.sbnation.com/nhl/2013/1/6/3728892/nhl-lockout-timeline-2012-2013.
[43] Sean P. Rourke, Fehr Officially Hired as New Head of the NHLPA, NHL.com (Dec. 18, 2010), https://www.nhl.com/news/fehr-officially-hired-as-new-head-of-nhlpa/c-546752.
[44] James Mirtle, Analysis: Breaking Down the NHL’s New CBA, The Globe and Mail (Jan. 6, 2013), https://www.theglobeandmail.com/sports/hockey/globe-on-hockey/analysis-breaking-down-the-nhls-new-cba/article6976187/; see also 2012–13 Los Angeles Kings Schedule and Results, Hockey-Reference (last visited Feb. 16, 2019), https://www.hockey-reference.com/teams/LAK/2013_games.html.
[45] 2013 NHL CBA art. 3.1(a).
[46] Id. at art. 3.1(b).
[47] See Katie Strang, The Big Issues Facing NHL, NHLPA in Upcoming CBA Talks, The Athletic (Aug. 20, 2018), https://theathletic.com/480706/2018/08/20/the-big-issues-facing-nhl-nhlpa-in-upcoming-cba-talks/ (describing that the allotment of each side’s percentage of generated NHL revenue, payments made to escrow by the players, the maximum length of each player’s contract, Olympic participation by NHL athletes, and the incoming Seattle franchise are all issues to be resolved in 2020); see also National Hockey League Players’ Ass’n v. National Hockey League, Appeal of Tom Wilson Suspension, NHLPA.com, 1 (2018) (Das, Arb.) https://www.nhlpa.com/news/1-16287/nhl-and-nhlpa-statement-on-tom-wilson-suspension?fbclid=IwAR0Hyr7nOmFkBTTtl-9yppLeqBvboZM6GnPr2w-yKPuDMxSSZDQiEZUqxHM (criticizing the NHL’s player disciplinary protocol).
[48] Johannes Wheeldon, The NHL and Gary Bettman: 25 Years of Progress and Controversy, The Hockey Writers (Sept. 5, 2018), https://thehockeywriters.com/the-nhl-is-thriving-under-gary-bettman/.
[49] Cory Wilkins, Fehr: Players Made ‘Significant Concessions’ in Last CBA Talks, TheScore (Sept. 2018), https://www.thescore.com/nhl/news/1588610.
[50] Id.
[51] Kevin Skiver, NHL and NHLPA Announce that World Cup of Hockey Will Not Be Played in 2020, CBS Sports (Jan. 16, 2019, 9:28 PM), https://www.cbssports.com/nhl/news/nhl-and-nhlpa-announce-that-world-cup-of-hockey-will-not-be-played-in-2020/; see also NHLPA (@NHLPA), Twitter (Jan. 16, 2019, 3:30 PM), https://twitter.com/NHLPA/status/1085680688911867904/photo/1 (“[The NHL and NHLPA] jointly concluded that it is unrealistic to expect that preparations for the event would be completed in time.”); NHL Public Relations (@PR_NHL), Twitter (Jan. 16, 2019, 3:30 PM), https://twitter.com/PR_NHL/status/1085680622977380353/photo/1 (“[Both sides] plan to continue their dialogue with a hope of being able to schedule the next World Cup event as part of a broader agreement.”).
[52] See, e.g., 2013 NHL CBA art. 1 (stating that “Professional Games” includes “minor league regular season and playoff games” and games played in Europe “pursuant to his [standard player contract,” but exempting Canadian Hockey League games).
[53] Dan Mount, Detroit Red Wings Sending Filip Zadina to AHL is a Positive, Last Word on Hockey (Oct. 2, 2018) (describing that a rare situation occurred when Red Wings’ prospect Filip Zadina was uniquely determined to be AHL eligible after the NHL determined he was loaned to his Canadian Hockey League team from his original team in Czech Republic’s league).
[54] 2018 NHL Entry Draft Search, NHL.com (last visited Feb. 2, 2019), http://www.nhl.com/ice/draftsearch.htm?year=2018&team=&position=&round=.
[55] 2018 NHL Entry Draft, HockeyDB.com (last visited Feb. 2, 2019), http://www.hockeydb.com/ihdb/draft/nhl2018e.html [https://perma.cc/2BS3-MRSG].
[56] See e.g., John Boruk, 2018 Flyers Training Camp Storyline: How Many Rookies Will Make the Opening Night Roster?, NBC Sports Philadelphia (Sept. 9, 2018, 10:55 AM), https://www.nbcsports.com/philadelphia/flyers/2018-flyers-training-camp-carter-hart-morgan-frost-german-rubtsov-mike-vecchione-rookies-roster.
[57] See Paul Branecky, AHL Seasoning Can Work Wonders, NHL.com Hurricanes (Sept. 29, 2009), https://www.nhl.com/hurricanes/news/ahl-seasoning-can-work-wonders/c-500234. During an interview with former Carolina Hurricanes goalie Cam Ward, Ward stated: “[p]eople don’t realize how big of a jump it is from the junior level to the pro level . . . having [another] year under your belt is something that benefits you in the long haul,” id.; see also Derek Van Diest, ‘I’d Like Them to Get More Touches’: Peter Chiarelli Says Puljajarvi and Yamamoto Need More Seasoning, Edmonton Sun (Nov. 11, 2018), https://edmontonsun.com/sports/hockey/nhl/edmonton-oilers/id-like-them-to-get-more-touches-peter-chiarelli-says-puljujarvi-yamamoto-need-more-seasoning. Former Oilers General Manager Peter Chiarelli reflected on the development of Oilers prospect Kailer Yamamoto, stating: “[i]t’s about him . . . going down [to the AHL] and finishing his opportunities . . . I didn’t want his confidence to struggle [while continuing to play in the NHL].” id.
[58] See Jimmy Vesey, The Senior, the Players’ Tribune (Feb. 24, 2016), https://www.theplayerstribune.com/en-us/articles/jimmy-vesey-harvard-hockey (“I like to think that when I get my Harvard degree this spring, it’ll be a testament to all [my family’s] hard work because I definitely know I didn’t get here by myself. I know going to college for all four years isn’t exactly the most conventional hockey path, but I can’t imagine having done it any other way.”); but see Glenn M. Wong, Warren Zola, & Chris Deubert, Going Pro in Sports: Providing Guidance to Student-Athletes in a Complicated Legal & Regulatory Environment, 28 Cardozo Arts & Ent. L. J. 553, 565 (2011) (“Leaving college early certainly can be a wise choice, and on occasion, staying in school can be a mistake from the perspective of a professional sports career.”).
[59] See Vesey, supra note 59 (“Each [college] team has so much history and tradition. It’s a cool feeling to be playing for something so much bigger than yourself.”).
[60] Neil Greenberg, College Hockey Players Undervalued in the NHL Draft and Here’s Why, The Washington Post (Jun. 23, 2004), https://www.washingtonpost.com/news/fancy-stats/wp/2014/06/23/college-hockey-players-undervalued-in-the-nhl-draft-and-heres-why/?utm_term=.587f2d22dc5e. Dave Hakstol, a former coach of the Philadelphia Flyers and the University of North Dakota, confirmed the benefits of playing hockey in the NCAA: “[i]f you are a first round pick and you are ready to step into the NHL after two years of college hockey you are able to do that. If you are a player that needs three or four years of development, you need that extra time, you have the option to continue your development in a great environment, so that when you get to the pro level you are ready to be there and compete for an NHL job,” id. Hakstol also confirmed the benefits of such development to the Drafting Team, acknowledging that “teams want to see their prospects in an environment where they are challenged and where they are going to develop and become a good part of their organization,” id.
[61] Neil Greenberg, College Hockey Players Undervalued in the NHL Draft and Here’s Why, The Washington Post (Jun. 23, 2004), https://www.washingtonpost.com/news/fancy-stats/wp/2014/06/23/college-hockey-players-undervalued-in-the-nhl-draft-and-heres-why/?utm_term=.587f2d22dc5e.
[62] Sarah Connors, How Does the NHL-CHL Agreement Regarding Prospects Work?, SB Nation Stanley Cup of Chowder (Aug. 1, 2012, 1:54 PM), https://www.stanleycupofchowder.com/2012/8/1/3213217/bruins-nhl-chl-ahl-agreement-CBA-talks-2012.
[63] NCAA – 2018–19 Team Comparison, Elite Prospects (last visited Feb. 16, 2019), https://www.eliteprospects.com/league/ncaa/teams-physical-stats [https://perma.cc/9FYM-4RGQ] (stating that 39 out of 60 teams have an average age of 22 or older, while 59 out of 60 have an average age of 21 or older); see also Division I Men’s Ice Hockey Points Per Game, NCAA (last visited Feb. 27, 2019), https://www.ncaa.com/stats/icehockey-men/d1/current/individual/99 [https://perma.cc/48ZW-J5BX].
[64] James Mirtle, Sizing Up the NHL: 2017–18 NHL Teams by Age, Height and Weight, The Athletic (Jan. 12, 2018), https://theathletic.com/210035/2018/01/12/sizing-up-the-nhl-2017-18-nhl-teams-by-age-height-and-weight/.
[65] See Michael Caples, Junior Hockey: What’s Next?, USA Hockey (Feb. 24, 2018, 8:30 PM), https://www.usahockey.com/news_article/show/887709. While interviewing the executive director of College Hockey, Inc., Mike Snee, Snee stated that college hockey “gives [players] more time in a setting that is heavy on development,” including practice time and weight room time, id. Thus, the NCAA is the “next step” in a Junior A player’s development, id.
[66] See 2018–19 NCAA DIVISION I MANUAL art. 1.2(c) [hereinafter NCAA MANUAL] (2018) (“The purposes of [the NCAA] are . . .[t]o encourage its [member institutions] to adopt eligibility rules to comply with satisfactory standards of scholarship, sportsmanship, and amateurism.”); see also Nat’l Collegiate Athletic Ass’n v. Board of Regents, 468 U.S. 85, 101–02 (1984) (“What the NCAA and its member institutions market in this case is competition itself . . . a particular brand . . . [of sports] . . . . The NCAA plays a vital role . . . in preserving [that brand’s] character and as a result enables a product to be marketed which might otherwise be unavailable.”).
[67] See NCAA MANUAL at art. 12.01.1 (“Only an amateur student-athlete is eligible for intercollegiate athletics participation.”); see also id. at 12.1.2(a)–(b) (stating that a student-athlete loses their amateur status and eligibility for participation in NCAA events if the athlete accepts any form of payment for their skills in their respective sport, or if the athlete accepts the promise of pay, “even if such payment is to be received” after the conclusion of their NCAA career).
[68] Id. at art. 1.3.1.
[69] Id. at art. 12.1.2(a)–(c).
[70] Shelton v. Nat’l Collegiate Athletic Ass’n, 539 F.2d 1197, 1198–99 (9th Cir. 1976) (holding that this strict liability approach to professionalization does not violate the Equal Protection Clause).
[71] See Bloom v. Nat’l Collegiate Athletic Ass’n, 93 P.3d 621, 626–27 (Colo. App. 2004) (upholding ineligibility where student-athlete was payed for endorsements and modeling); see also NCAA v. Lasege, 53 S.W.3d 77, 84–85 (Ky. 2001) (upholding ineligibility of student-athlete who had previously been given a free airplane ticket and apartment by a Russian basketball team, with whom he had signed, before the student-athlete attended the University of Louisville); Banks v. Nat’l Collegiate Athletic Association, 977 F.2d 1081, 1091 (7th Cir. 1992) (partially superseded by recent amendments to the NCAA’s Bylaws) (upholding ineligibility of student-athlete who attempted to re-enter college football after going undrafted in the NFL because of a knee injury).
[72] Glenn M. Wong, Warren Zola, & Chris Deubert, Going Pro in Sports: Providing Guidance to Student-Athletes in a Complicated Legal & Regulatory Environment, 28 Cardozo Arts & Ent. L. J. 553, 555 (2011).
[73] See Greenburg, supra note 61.
[74] NCAA MANUAL art. 12.3.1.1.
[75] Id. at art. 12.2.2.1.
[76] Mark Hicks & Kris Richardson, Memorandum: Information Regarding the 2018 National Hockey League (NHL) Draft, Agents, and Tryouts, NCAA 1, 3 (Apr. 24, 2018), https://www.ncaa.org/sites/default/files/2018DIENF_NHLEducational_Memo_20180424.pdf; see also NCAA MANUAL art. 12.2.1.3. (“A tryout may extend beyond 48 hours if the individual self-finances additional expenses, including return transportation . . . [and] the individual does not miss class.”).
[77] Id.
[78] Chris Peters, What to Expect from the 2018 NHL Scouting Combine, ESPN NHL (May 29, 2018), http://www.espn.co.uk/nhl/story/_/id/23639169/nhl-expect-2018-nhl-scouting-combine-including-look-events-former-top-performers-wingate-test.
[79] 2013 NHL CBA art. 8.6(c)(i); see also Dominik Jansky, NHL CBA: College Loophole Clarified; Anders Lee’s ELC, SB Nation Lighthouse Hockey (Jun. 7, 2013, 6:15 AM), https://www.lighthousehockey.com/2013/6/7/4404684/nhl-cba-college-loophole-ncaa-change (stating that “[College P]layers who do everything but complete” one final course “cannot wiggle their way to free agency” by leaving college just before they are scheduled to graduate).
[80] Id. at art. 8.3(b) (providing protection for any Drafting Team who loses the rights to a player selected in the first-round, regardless of where they last played hockey, so long as they tendered a “Bona Fide Offer”).
[81] Id. (“By way of example, if [his Drafting Team] cannot sign the third pick in the first round, it will receive the third pick in the second round as compensation.”).
[82] See Steve Silverman, Why Failure to Sign Kevin Hayes Is Problematic for Chicago Blackhawks’ Future, Bleacher Report (Aug. 19, 2014), https://bleacherreport.com/articles/2167888-why-failure-to-sign-kevin-hayes-is-problematic-for-chicago-blackhawks-future; Former Coyotes Draft Pick Blake Wheeler Elects for Free Agency, NHL.com (May 29, 2008), https://www.nhl.com/coyotes/news/former-coyotes-draft-pick-blake-wheeler-elects-for-free-agency/c-428124.
[83] See Helene Elliott, Speed and Scoring Is Increasing in the NHL, But It Could All Come to a Grinding Halt in 2020, Los Angeles Times (Sep. 29, 2018, 7:00 AM), https://www.latimes.com/sports/hockey/la-sp-nhl-column-elliott-20180929-story.html. Because the NHL is a “copycat league,” the recent success of teams like the Vegas Golden Knights has started a trend in the NHL of “[e]mphasizing speed and youth,” id.
[84] See Associated Press, Maple Leafs Among NHL Teams Facing Cap Crunches Next Season, USA Today (Dec. 19, 2018, 2:50 AM), https://www.usatoday.com/story/sports/nhl/2018/12/19/maple-leafs-among-nhl-teams-facing-cap-crunches-next-year/38764835/. During an interview, Buffalo Sabres General Manager Jason Botterill spoke about the importance of scouting and player development, stating: “[t]he philosophy is simple and you’re seeing it around the league. The only way you can keep a lot of your top-end players is if you have other players coming up through the [minor league] system,” id.
[85] See Callan Sheridan, 13 NHL first-round Draft Picks You Can Still Watch Playing College Hockey, NCAA (Jan. 20, 2019), https://www.ncaa.com/news/icehockey-men/article/2019-01-03/13-nhl-first-round-draft-picks-you-can-still-watch-playing (stating that because “more and more the world’s top hockey talent makes the decision to develop [their] game through NCAA college hockey before jumping to [the NHL],” thirteen former first-round selections played in the NCAA during the 2018–19 season); see also Mike Morreale, College Game Growing Path to NHL, NHL.com (Apr. 1, 2018), https://www.nhl.com/news/rookie-watch-college-game-growing-path-to-nhl/c-297555930 (showing that nearly one-third of current NHL players played college hockey at some point during their careers, which is a nine percent increase since 2004).
[86] Gary Santaniello, College Hockey Alumni Rise in Prominence in the N.H.L., The New York Times (Oct. 20, 2018), https://www.nytimes.com/2018/10/20/sports/hockey/nhl-college-coaches.html (“The [NHL’s] more recent emphasis on offense, with a corresponding de-emphasis on fighting, created more demand for the fast, skilled players college hockey has become increasingly adept at producing.”).
[87] See, e.g., Tyler Madden, EliteProspects.com (last visited Mar. 1, 2019), https://www.eliteprospects.com/player/201489/tyler-madden; Sampo Ranta, EliteProspects.com (last visited Mar. 1, 2019), https://www.eliteprospects.com/player/375954/sampo-ranta; Alex Green, EliteProspects.com (last visited Mar. 1, 2019), https://www.eliteprospects.com/player/233565/alex-green; see also 2018 NHL Entry Draft, EliteProspects.com (last visited Mar. 1, 2019), https://www.eliteprospects.com/draft/nhl-entry-draft/2018.
[88] See, e.g., Shane Pinto, EliteProspects.com (last visited Aug. 24, 2019), https://www.eliteprospects.com/player/388979/shane-pinto; Nicholas Abruzzese, EliteProspects.com (last visited Aug. 2019), https://www.eliteprospects.com/player/201476/nicholas-abruzzese.
[89] 1995 NHL CBA art. 8.6(b)(i).
[90] Id. at art. 8.3(b).
[91] 2005 NHL CBA art. 8.6(c)(i).
[92] Id.
[93] Id. at art. 8.6(c)(ii).
[94] Id.; but see id. at art. 8.6(c)(v) (stating that if a player is “drafted at age 20 or older” as a college student or if the player becomes a college student “while his [Drafting Team] retains [his] exclusive rights,” then his Drafting Team will hold his rights for only two years).
[95] 2013 NHL CBA art. 8.6(c)(iii).
[96] Id. at art. 9.1(b).
[97] Id.
[98] Id. at art. 9.3(a).
[99] Id. at art. 9.3(b) (stating that signing bonus cannot exceed 10% of his yearly compensation).
[100] Id. at art. 9.4 (“[I]n no event may [any standard player contract] provide for minor league compensation, including bonuses for games played, greater than [$70,000].”).
[101] Id. at art. 9.7(a).
[102] See Ryan Donato, Hockey-Reference (last visited Apr. 7, 2019), https://www.hockey-reference.com/players/d/donatry01.html (playing in twelve NHL games with the Boston Bruins during the 2017–18 season).
[103] See Ryan Poehling, Hockey-Reference (last visited Apr. 7, 2019), https://www.hockey-reference.com/teams/MTL/2019.html (playing in one NHL game with the Montreal Canadiens during the 2017–18 season).
[104] 2013 NHL CBA art. 9.3(a).
[105] See Brad Elliott Schlossman, Jason Gregoire Retires, University of North Dakota Hockey Area Voices (Sept. 5, 2015), https://undhockey.areavoices.com/?p=100768. Additionally, several other players, including Jason Gregoire, also used Article 8.6(c). Gregoire became a free agent and signed with his hometown team, the Winnipeg Jets, id. Ultimately, he played in the AHL for the entirety of his professional, North American career, id.
[106] Mark Jones, 2012 Free Agents: Justin Schultz Signs Contract with Edmonton Oilers, Bleacher Report (Jun. 30, 2012), https://bleacherreport.com/articles/1242504-nhl-free-agency-2012-justin-schultz-signs-contract-with-edmonton; see also Bruce Ciskie, Justin Schultz Saga Creates NHL-wide Drama, SB Nation (Jun. 27, 2012, 11:38 AM), https://www.sbnation.com/nhl/2012/6/27/3119674/justin-schultz-nhl-free-agency-2012 (“In a summer where there aren’t a lot of marquee free agents, Schultz probably couldn’t have picked a better time to make this play.”).
[107] Sammi Silber, Edmonton Oilers: Justin Schultz Opens Up About Former Club, Fansided Oil On Whyte (2017), https://oilonwhyte.com/2016/06/14/edmonton-oilers-justin-schultz-opens-up-about-former-club/.
[108] Justin Schultz, Hockey-Reference.com (last visited Mar. 6, 2019), https://www.hockey-reference.com/players/s/schulju01.html (scoring 51 points as a defenseman in 2016–17 with Pittsburgh and finishing in the top 10 in voting for best NHL defenseman).
[109] Chris Peters, Mike Reilly Informs Blue Jackets He Won’t Sign, Hits Free Agency, CBS Sports (Jun. 17, 2015, 11:42 am), https://www.cbssports.com/nhl/news/mike-reilly-informs-blue-jackets-he-wont-sign-hits-free-agency/.
[110] Id.; Nathan Wells, Gophers Hockey: Mike Reilly Signs with Minnesota Wild, SB Nation College Hockey (Jun. 26, 2015, 12:32 PM), https://www.sbncollegehockey.com/2015/6/26/8852803/gophers-hockey-mike-reilly-free-agent-minnesota-wild-signs.
[111] See Wells, supra note 111.
[112] Mike Reilly, Elite Prospects (last visited Mar. 13, 2019), https://www.eliteprospects.com/player/106295/mike-reilly.
[113] Peters, supra note 110; see also Scott Powers, Agent: Prospect Hayes Weighs Signing, ESPN (Apr. 29, 2014), http://www.espn.com/blog/chicago/blackhawks/post/_/id/4682279/agent-prospect-hayes-weighs-signing. Former Chicago Blackhawks first-round selection Kevin Hayes’ agent, Robert Murray, discussed his client not signing with the Blackhawks, who in 2014, had had just won two Stanley Cups, were perennial playoff contenders, and boasted arguably three of the best players in the NHL during that span—Jonathan Toews, Patrick Kane, and Duncan Keith. Despite those benefits of playing for Chicago, the “depth” of the Blackhawks was a factor in Hayes’ eventual decision to not sign with the team, id.
[114] Satchel Price, Everything You Need to Know About Will Butcher, the NHL’s Next Top College Free Agent, SB Nation (Aug. 15, 2017), https://www.sbnation.com/2017/8/15/16150550/will-butcher-nhl-free-agency-rumors-suitors-avalanche-blackhawks-maple-leafs-sabres.
[115] Mike Chambers, Despite Being Shunned by Avalanche, Will Butcher Hopes to Attend Team’s Prospect Camp, Denver Post (Jun. 2, 2016), https://www.denverpost.com/2016/06/02/despite-being-shunned-by-avalanche-will-butcher-hopes-to-attend-the-teams-prospects-camp/.
[116] Price, supra note 115.
[117] Id.; see also Will Butcher Named to NHL All-Rookie Team, University of Denver Athletics (Jun. 21, 2018, 12:00 AM), https://denverpioneers.com/news/2018/6/21/Will_Butcher_Named_to_NHL_All_Rookie_Team.aspx.
[118] Associated Press, Avalanche Sign Forward Alexander Kerfoot to 2-Year Deal, ESPN (Aug. 24, 2017), http://www.espn.com/nhl/story/_/id/20445367/colorado-avalanche-sign-forward-alexander-kerfoot-2-year-deal.
[119] Alexander Kerfoot, NHL.com (last visited Mar. 13, 2019), https://www.nhl.com/player/alexander-kerfoot-8477021.
[120] Chris Ryan, How Close Did Alex Kerfoot Come to Signing with the Devils?, NJ.com (Aug. 24, 2017) (citation omitted), https://www.nj.com/devils/2017/08/how_alex_kerfoot_come_to_signing_with_the_devils.html (“I think there was a plethora of young centermen coming into the organization who I would have to compete with [for roster spots].”).
[121] Cal Petersen, Elite Prospects (last visited Mar. 16, 2019), https://www.eliteprospects.com/player/121956/cal-petersen; Dan Colleran, Petersen to Turn Pro, University of Notre Dame Sports (May 31, 2017), https://und.com/news/2017/5/31/Petersen_To_Turn_Pro.aspx.
[122] Black & White: Cal Petersen, Los Angeles Kings (Mar. 26, 2018), https://www.nhl.com/kings/video/black–white-cal-petersen/t-277437410/c-59258503?abtest=pin-top; Associated Press, Sabres GM Botterill Expects Goalie Cal Petersen to Pursue Free Agency, ESPN (Jun. 23, 2017), http://www.espn.com/nhl/story/_/id/19717491/gm-expects-buffalo-sabres-lose-signing-goalie-cal-petersen.
[123] Josh Cooper, Meet Cal Petersen, the Kings’ Maybe, Probably Goaltender of the Future, the Athletic (Nov. 9, 2018), https://theathletic.com/628394/2018/11/09/meet-cal-petersen-the-kings-maybe-probably-goaltender-of-the-future/.
[124] Id.; see also Cal Petersen, supra note 122 (showing that Petersen delivered an above average save percentage and goals against average in eleven NHL games).
[125] Dominic Toninato, Elite Prospects (last visited Mar. 16, 2019), https://www.eliteprospects.com/player/122004/dominic-toninato [https://perma.cc/6JLP-V9MZ].
[126] Mike Chambers, Avalanche Signs College Free Agent Dominic Toninato, Denver Post (Aug. 16, 2017, 2:58 PM), https://www.denverpost.com/2017/08/16/avalanche-signs-dominic-toninato/.
[127] Jeff Veillette, Maple Leafs and Dominic Toninato to Part Ways, Leafs Nation (Jul. 4, 2017, 12:16 PM), https://theleafsnation.com/2017/07/04/maple-leafs-and-dominic-toninato-to-part-ways/.
[128] Matt Wellens, Duluth’s Toninato Awaits NHL Free Agency, Duluth News Tribune (Aug. 12, 2017, 10:15 PM), https://www.duluthnewstribune.com/sports/4311655-duluths-toninato-awaits-nhl-free-agency. Reflecting on his rejection of the Leafs’ AHL offer, Toninato stated that he wanted to “go wherever [he] ha[d] the best opportunity of getting a chance [at the NHL],” id.
[129] Kevin McGran, Leafs Pick Weighs Prospect Five Years After Draft, Toronto Star (May 20, 2017), https://www.thestar.com/sports/leafs/2017/05/20/leafs-pick-weighs-prospects-five-years-after-draft.html.
[130] Dominic Toninato, supra note 126.
[131] Florida Panthers, Florida Panthers Acquire Forward Dominic Toninato from Colorado Avalanche, NHL.com (Jun. 29, 2019), https://www.nhl.com/panthers/news/florida-panthers-acquire-forward-dominic-toninato-from-colorado-avalanche/c-308122800.
[132] Blaine Byron, Elite Prospects (last visited Mar. 16, 2019), https://www.eliteprospects.com/player/117940/blaine-byron.
[133] Chris Johnston, Blaine Byron on Foregoing NHL Deals to Sign with Florida’s AHL Affiliate, Sportsnet (Aug. 30, 2017, 12:12 PM), https://www.sportsnet.ca/hockey/nhl/blaine-byron-forgoing-nhl-deals-sign-floridas-ahl-affiliate/.
[134] Id. This led Byron’s agent to comment on the situation. He explained that his client “could sign an NHL contract,” but it would not mean anything if Byron never actually played in the NHL, id. At 22 years old, Byron needed security meaning he needed to give his client “as many options” as he could since the window of a professional athlete’s career “is so small in today’s NHL,” id.
[135] Id.
[136] Craig Davis, Panthers Get Assist in Signing Prospect Blaine Byron from Defenseman MacKenzie Weegar, Sun-Sentinel (Aug. 26, 2017), https://www.sun-sentinel.com/sports/florida-panthers/fl-sp-panthers-blaine-byron-20170826-story.html.
[137] Thunderbirds Sign Five to AHL Deals, theAHL.com (Jul. 3, 2018), https://theahl.com/thunderbirds-sign-five-to-ahl-deals; T-Birds Sign F Blaine Byron to 1-Year AHL Deal, Springfield Thunderbirds (Jun. 10, 2019), http://www.springfieldthunderbirds.com/news/detail/t-birds-sign-f-blaine-byron-to-1-year-ahl-deal.
[138] Compare Canes PR, Canes Agree to Terms with Chase Priskie, NHL.com (Aug. 17, 2019), https://www.nhl.com/hurricanes/news/canes-agree-to-terms-with-chase-priskie/c-308549560 (announcing that Carolina signed college free agent Chase Priskie) with David Staples, Edmonton Oilers Trade Marginal Prospect John Marino for a Draft Pick, Edmonton Journal (Jul. 26, 2019), https://edmontonjournal.com/sports/hockey/nhl/cult-of-hockey/edmonton-oilers-trade-marginal-prospect-john-marino-for-a-draft-pick (stating that John Marino, a third year college defenseman who was formerly a sixth round pick of the Edmonton Oilers, was traded to the Pittsburgh Penguins before his rights expired because he “wasn’t going to sign with the[m]” one year before he officially became a free agent under Article 8.6(c)).
[139] Chase Priskie, Elite Prospects (last visited Apr. 3, 2019), https://www.eliteprospects.com/player/177666/chase-priskie.
[140] Brennin Weiswerda, Draft Pick Chase Priskie Informs Capitals He Will Not Sign with Them, Russian Machine Never Breaks (Apr. 3, 2019, 2:31 PM), https://russianmachineneverbreaks.com/2019/04/03/draft-pick-chase-priskie-informs-capitals-he-will-not-sign-with-them/.
[141] Bob McKenzie (@TSNBobMcKenzie), Twitter (Apr. 3, 2019, 11:09 AM), https://twitter.com/TSNBobMcKenzie/status/1113503720115978240.
[142] Chip Malafronte, Rafferty Being Sent Straight to NHL, Priskie Meeting with His Agent to Decide Whether or Not to Sign with Washington, New Haven Register (Apr. 2, 2019, 8:11 PM), https://www.nhregister.com/colleges/article/Rafferty-being-sent-straight-to-NHL-Priskie-13736708.php.
[143] Sara Civian, Why the Hurricanes Chose Chase Priskie, and Why He Chose Them Back, the Athletic (Aug. 22, 2019), https://theathletic.com/1151035/2019/08/22/why-the-hurricanes-chose-chase-priskie-and-why-priskie-chose-them-back/?redirected=1.
[144] Id..
[145] 2013 NHL CBA art. 1 (stating that a “Reserve List” includes “[n]ot more than 50 players signed to a [standard player contract]”).
[146] See id. (“Age 18 and 19 Players who were returned to [the Canadian Hockey League] and who have not played 11 NHL [g]ames in one season, shall be exempt from inclusion in the 50 Player limit.”).
[147] Id. at art. 10.1(a)(i) (stating that a standard player contract expires on June 30); see also id. at Exhibit 1 (stating that a new standard player contract cannot be signed until July 1 at the earliest).
[148] J.J. Regan, Capitals Prospect Report: The Caps’ Deadline Moves Could Have a Major Impact on their Prospects, NBC Sports Washington (Mar. 1, 2019), https://www.nbcsports.com/washington/capitals/capitals-prospect-report-caps-deadline-moves-could-have-major-impact-their-prospects?fbclid=IwAR3K2LMV82vvJQvPDgdvnua1sZNUCtNqbOJSjGEnksOM8JspOFeIARoxvNQ.
[149] Id.
[150] Greg Wyshynski, Ducks GM Feels Betrayed by Justin Schultz, Says Eric Lindros Handled Things Better, Yahoo! Sports (Jul. 1 2012, 7:26 PM), https://sports.yahoo.com/blogs/puck-daddy/ducks-gm-feels-betrayed-justin-schultz-says-eric-022652445–nhl.html (“[The rule is] just wrong. I sure hope the NHL realizes they dropped the ball big time.”).
[151] Id. (“[The Ducks] received no call from Justin Schultz . . .[I]f he had it in his mind that he wanted to play in Canada . . . I get that. But [Lindros directly told the Quebec Nordiques he would not play there] allow[ing] that team to make a move to get something for him . . . .[Schultz] needed to just tell us the truth [that he would not sign with Anaheim].”).
[152] Ben Whyte, Predators GM Wants NHL to Change NCAA Prospect Rules After Vesey Situation, The Score (2016), https://www.thescore.com/news/1054880.
[153] Id.
[154] James O’Brien, Blue Jackets Say They Didn’t Push Milano to Join OHL over Boston College, NBC Sports (Aug. 19, 2014, 4:00 PM), https://nhl.nbcsports.com/2014/08/18/blue-jackets-say-they-didnt-push-milano-to-choose-ohl-over-boston-college/. These rumors were fueled by a statement by Boston College’s coach, who told the media: “Sonny has informed me he will sign a contract with Columbus. They will dictate his path as he embarks on his pro career,” id.
[155] See Vesey, supra note 59.
[156] See Black & White: Cal Petersen, supra note 123.
[157] See, e.g., Dominik Jansky, supra note 80 (describing that the Drafting Team’s fans have an adoration for its prospects, which often cause them to align with the Drafting Team’s goals); see also Adam Gretz, Look: 17,000 Fans Watched Jack Eichel, Sabres Prospects Scrimmage, CBS Sports (Jul. 11, 2015, 5:56 AM), https://www.cbssports.com/nhl/news/look-17000-fans-watched-jack-eichel-sabres-prospects-scrimmage/ (noting that certain prospects are so popular that their appearance at a preseason team practice can draw full attendance from a team’s fans).
[158] Chris Diiks, John Hayden Signs with Chicago Blackhawks, SB Nation College Hockey (Mar. 12, 2017, 10:58 AM), https://www.sbncollegehockey.com/2017/3/12/14899914/john-hayden-signs-with-chicago-blackhawks.
[159] Id.
[160] Id.
[161] Compare John Hayden, Capfriendly (last visited Mar. 16, 2019), https://www.capfriendly.com/players/john-hayden (earning a base NHL salary of $832,500, a $92,500 signing bonus, and $0 in performance bonuses), with Will Butcher, Capfriendly (last visited Mar. 16, 2019) (earning a base NHL salary of $832,500, a $92,500 signing bonus, and $2.85 million in potential performance bonuses, and Jimmy Vesey, Capfriendly (last visited Mar. 16, 2019) (earning a base NHL salary of $832,500, a $92,500 signing bonus, and $2.85 million in potential performance bonuses).
[162] 2013 NHL CBA Exhibit 5 (setting certain performance bonuses at a minimum of 42 games played and other performance bonuses on milestones unlikely to be reached in fewer than 20 games played).
[163] See John Hayden, supra note 162.
[164] 2013 NHL CBA art. 8.6(d).
[165] See 2005 NHL CBA art. 8.6(a)(iii).
[166] Id.
[167] Id. at art. 8.6(a)(ii).
[168] See id. at art. 8.4(a) (stating that a player is eligible for claim in the NHL Entry Draft unless he is specifically exempted).
[169] Frederik Andersen, Elite Prospects (last visited Mar. 20, 2019), https://www.eliteprospects.com/player/15205/frederik-andersen.
[170] Andrew Luistro, Frederik Andersen the One that Got Away, the Hockey Writers (Sep. 28, 2013), https://thehockeywriters.com/frederik-andersen-one-got-away/.
[171] Id.
[172] See 2013 NHL CBA at art. 8.6(d)(ii) (ending rights for International Drafted Players who are twenty or older after two years); id. at art. 8.6(c)(v) (ending rights for Drafted Players in college who played NCAA hockey after two years); id. at art 8.6(b) (affecting only Canadian Hockey League players who are under twenty years old).
[173] Id. at art. 8.6(d)(i).
[174] See Patrik Bexell, The SHL and NHL: A System in Symbiosis?, SB Nation Habs Eyes on the Prize (Nov. 13, 2015, 8:00 AM), https://www.habseyesontheprize.com/2015/11/13/9696344/shl-siha-swedish-hockey-league-transfer-agreement-william-nylander-peter-forsberg-nicklas-lidstrom (requiring NHL teams to pay Swedish hockey clubs to bring Drafted Players to North America, but receiving a “better developed player” in exchange for their investment); Associated Press, NHL Primes Pump for Future Talent with Transfer Fees, USA Today (Dec. 24, 2018, 2:19 AM), https://www.usatoday.com/story/sports/nhl/2018/12/24/nhl-primes-pump-for-future-talent-with-transfer-fees/38791543/ (applying the same standard to professional hockey players playing in Finland).
[175] See Stephen Heisler, Daily Dish: NCAA Should Reconsider Position on Major Junior Players, Juniorhockey.com (Feb. 19, 2019), https://www.juniorhockey.com/news/news_detail.php?news_id=79802.
[176] See id.; see also NCAA MANUAL art. 12.2.3.2.4 (emphasis added) (“Ice hockey teams . . . classified by the Canadian Hockey Association as major junior teams [] are considered professional teams.”).
[177] 417 F.Supp. 885 (D. Colo. 1976), aff’d, 570 F.2d 320 (10th Cir. 1978) (“We cannot constitutionalize amateur sports to protect their interests.”).
[178] NCAA MANUAL art. 12.2.3.2.4.1.
[179] Id.
[180] See Justin Schultz, Elite Prospects (last visited Mar. 20, 2019), https://www.eliteprospects.com/player/18241/justin-schultz (playing in the British Columbia Hockey League, which is Junior A, before immediately playing for the University of Wisconsin).
[181] Tim Panaccio, Flyers Prospect Samuel Dove-McFalls Is Free Agent, Can Re-enter Draft, NBC Sports Philadelphia (Jun. 1, 2017, 5:00 PM), https://www.nbcsports.com/philadelphia/philadelphia-flyers/flyers-prospect-samuel-dove-mcfalls-free-agent-can-re-enter-draft.
[182] See Victor Findlay, Five CIS Players Who Could Make the Jump to the NHL, Yahoo Sports (Apr.15, 2016), https://goravens.ca/news/2016/04/five-cis-players-who-could-make-the-jump-to-the-nhl/ (stating that although the amount of Canadian University hockey players signing NHL professional tryouts and contracts is increasing, it still does not rival the amount of NCAA players acquired by the NHL).
[183] See Dove-McFalls Returns to NB, University of New Brunswick Athletics (Aug. 1, 2018), http://www.varsityreds.ca/sports/mice/2018-19/releases/dove-mcfalls; see also Samuel Dove-McFalls, Elite Prospects (last visited Mar. 20, 2019), https://www.eliteprospects.com/player/135860/samuel-dove-mcfalls.
[184] See, e.g., Quinn Hughes, Elite Prospects (last visited Mar. 20, 2019), https://www.eliteprospects.com/player/201671/quinn-hughes (playing in the United States Hockey League before playing at the University of Michigan); Anthony Stolarz, Elite Prospects (last visited Mar. 20, 2019), https://www.eliteprospects.com/player/131368/anthony-stolarz (playing in the North American Hockey League before playing for the University of Nebraska-Omaha).
[185] 2013 NHL CBA art. 8.6(a)(ii).
[186] See id. at art. 8.6(b)(i)–(ii).
[187] Id. at 8.6(b)(iii)–(iv).
[188] See id. at art. 8.4(a).
[189] Louie Korac, Connor Bleackley Eyes Redemption with Blues, NHL.com (Jul. 6, 2016), https://www.nhl.com/news/conner-bleackley-eyes-redemption-with-st-louis/c-281122040.
[190] Id.
[191] Id.; St. Louis Blues, Capfriendly (last visited Mar. 20, 2019), https://www.capfriendly.com/teams/blues.
[192] See Brandon Dubinsky, Elite Prospects (last visited Mar. 20, 2019), https://www.eliteprospects.com/player/11024/brandon-dubinsky.
[193] Brandon Dubinsky (@BDubi17), Twitter (Aug. 25, 2017, 10:21 AM), https://twitter.com/BDubi17/status/901132360388890625.
[194] Brandon Dubinsky (@BDubi17), Twitter (Aug. 25, 2017, 10:21 AM), https://twitter.com/BDubi17/status/901132449442394113.
[195] See Stephen Tsai, Brewers Select University of Hawaii’s Kekai Rios in 28th Round of MLB Draft, Star Advertiser (Jun. 6, 2018), https://www.staradvertiser.com/2018/06/06/sports/sports-breaking/milwaukee-brewers-select-university-of-hawaii-catcher-in-28th-round-of-mlb-draft/ (establishing leverage through the ability to reject a team offer and return to college, forcing an MLB team to constructively forfeit their draft selection).
[196] See Satchel Price, The Jimmy Vesey Sweepstakes Is the System Working as Designed, SB Nation Second City Hockey (Aug. 17, 2016, 7:30 AM), https://www.secondcityhockey.com/2016/8/17/12511756/jimmy-vesey-free-agency-predators-reserve-clause-nhl-draft-rights (“If you take away a player’s ability to threaten to hit free agency at some point, then his career is entirely controlled by the team until he signs.”).
[197] Adam Gaudette, Capfriendly (last visited Mar. 20, 2019), https://www.capfriendly.com/players/adam-gaudette.
[198] See 2013 NHL CBA art. 9.1(d) (extending the ELC of eighteen and nineteen-year-old players who did not play in at least 10 NHL games by one year); see also Braden Holtby, Capfriendly (last visited Mar. 20, 2019), https://www.capfriendly.com/players/braden-holtby (noting that the Washington Capitals slid Braden Holtby for the first two years of his contract while Holtby was playing in the Canadian Hockey League).
[199] See David Pastrnak, Capfriendly (last visited Mar. 20, 2010), https://www.capfriendly.com/players/david-pastrnak. Pastrnak made approximately $2,775,000 over his three-year ELC, despite producing 70 points in the final year, id. He was then rewarded at the expiration of his contract with a six-year, $40 million contract, id.
[200] 2013 NHL CBA art. 9.1(b).
[201] See Jimmy Vesey, Capfriendly (last visited Mar. 20, 2019), https://www.capfriendly.com/players/jimmy-vesey (increasing his base salary from $832,500 to $2,275,000).
[202] See id.; Will Butcher, Capfriendly (last visited Mar. 20, 2019), https://www.capfriendly.com/players/will-butcher; Justin Schultz, Capfriendly (last visited Mar. 20, 2019), https://www.capfriendly.com/players/justin-schultz.
[203] 351 F.Supp 462, 519 (E.D. Penn. 1972).
[204] Id. at 498–99, 511.
[205] Id. at 480 (reciting the executive director of the NHLPA’s testimony: “[t]he reserve clause is considered by me . . . to be simply a lifetime option clause and that a player once he signs a contract, since that is the standard contract of the league, signs with a team for life”).; see also Price, supra note 197 (“[T]he [alternative to the Jimmy Vesey Rule] is something akin to the reserve clause.”).
[206] See 2013 NHL CBA art. 10.1(c)(i)–(ii) (granting unrestricted free agency to any player whose standard player contract has expired, is twenty-five years old or older, has played three or more professional seasons—including in the American Hockey League, and has played fewer than 80 NHL games if the player is a forward or defenseman, or fewer than 28 NHL games if the player is a goalie).
[207] See Corey Pronman (@coreypronman), Twitter (Jul. 14, 2017, 10:39 AM), https://twitter.com/coreypronman/status/885916631012192256?ref_src=twsrc%5Etfw%7Ctwcamp%5Etweetembed%7Ctwterm%5E885916631012192256&ref_url=https%3A%2F%2Fs9e.github.io%2Fiframe%2F2%2Ftwitter.min.html%23885916631012192256; Satchel Price, Maxim Shalunov to Stay in KHL for at Least 3 More Seasons, Per Report, SB Nation Second City Hockey (Apr. 30, 2017, 11:04 AM), https://www.secondcityhockey.com/2017/4/30/15492548/maxim-shalunov-blackhawks-status-khl-contract-trade-nhl-2017; Minnesota Wild Reserve List, Capfriendly (last visited Apr. 4, 2019), https://www.capfriendly.com/teams/wild/reserve-list (stating that the Minnesota Wild hold initial signing rights to star KHL forward Kirill Kaprizov indefinitely).
[208] Brandon Maron, Nikita Gusev Is Having a Historic Season in the KHL, SB Nation Knights on Ice (Feb. 22, 2019, 1:00 PM), https://www.knightsonice.com/2019/2/22/18235440/nikita-gusev-is-having-a-historic-season-in-the-khl.
[209] NHL, KHL Agree to Player Movement Regulations, NHL.com (Jul.7, 2011), https://www.nhl.com/news/nhl-khl-agree-to-player-movement-regulations/c-568840 (“The agreement respects the professional contracts of players from both leagues and obliges both sides to complete a range of procedures to avoid conflicts in the process of players moving from one league to the other.”).
[210] See, e.g. Ken Boehlke, When (If Ever) Will Nikita Gusev Become a Golden Knight?, SinBin.vegas (Jun. 10, 2018), https://sinbin.vegas/when-if-ever-will-nikita-gusev-become-a-golden-knight/; see also 2013 NHL CBA art. 9.1(c) (stating that a European player “who signs his first [standard player contract]” from ages twenty-five through twenty-seven receives a one year ELC contract, but that a European player who signs his first contract at age twenty-eight cannot sign an ELC); 2013 NHL CBA art. 10.1(a)(i) (emphasis added) (“[A player] who . . . is 27 years of age or older on June 30 . . . shall, if his most recent [standard player contract] has expired . . . become an Unrestricted Free Agent.”); Vegas Golden Knights, Vegas Golden Knights Sign Forward Nikita Gusev to Entry-Level Contract, NHL.com (Apr. 14, 2019), https://www.nhl.com/goldenknights/news/vegas-golden-knights-sign-forward-nikita-gusev-to-entry-level-contract/c-306751654.
[211] E-mail from Robert DeGregory, Assoc. Counsel, Nat’l Hockey League Players’ Ass’n to author (Feb. 15, 2019, 14:32 PST) (on file with author).
[212] See e.g., 2018 NHL Draft First-round Results, Analysis, NHL.com (Jun. 22, 2018), https://www.nhl.com/news/nhl-draft-picks-recap/c-299186680; see also 2013 NHL CBA at art. 8.1 (“Each Entry Draft shall will be held in June, on a date which shall be determined by [the NHL’s Commissioner]”).
[213] See 2013 NHL CBA art. 10.3(j) (“[T]he NHL will provide the NHLPA with a draft Free Agent List . . . which List shall set forth each Player’s name and the group(s) of Free Agency he qualifies for . . . effective that July 1.”).
[214] Id. at Exhibit 1 (emphasis added) (“The Player further agrees . . . to report to his Club’s Training Camp at the time and place fixed by the Club, in good condition.”).
[215] Allan Muir, Midsummer NHL Power Rankings, Sports Illustrated (Jul. 19, 2016), https://www.si.com/nhl/2016/07/19/midsummer-nhl-power-rankings (“[H]ere’s how the NHL’s 30 teams stand during the month-long lull before training camps . . . .”) (emphasis added).
[216] Id.
[217] 2013 NHL CBA Exhibit 15.
[218] See Justin Tasch, Jimmy Vesey Makes First Visit to Buffalo After Passing on Sabres to Sign with Rangers, New York Daily News (Dec. 1, 2016), https://www.nydailynews.com/sports/hockey/rangers/jimmy-vesey-visit-buffalo-passing-sabres-article-1.2894736. When asked about playing against the Sabres for the first time after spurning them to sign with the Rangers, Vesey stated: “I guess at the end of the day, I made my decision. Might have pissed some people off, I guess, but that was never my intention,” id.
[219] See William Nylander Signs 6-Year Deal with Leafs at Deadline, CBC (Dec. 2, 2018), https://www.cbc.ca/sports/hockey/nhl/william-nylander-contract-agreement-1.4928846 (describing Nylander’s holdout with the Toronto Maple Leafs until both sides reached an agreement minutes before the final deadline to sign restricted free agents).
[220] See 2018-19 AHL Schedule Revealed, AHL.com (Jul. 11, 2018), https://theahl.com/2018-19-ahl-schedule-unveiled (beginning the 2018–19 AHL regular season on October 5).
[221] Whyte, supra note 153.
[222] See Derek Neumeier, Draft Dodging: The NHL Needs to Fix Prospect Free Agency Rules, SB Nation Defending Big D (Aug. 18, 2017, 11:00 AM), https://www.defendingbigd.com/2017/8/18/16165916/draft-dodging-the-nhl-needs-to-fix-prospect-free-agency-rules-schultz-butcher-vesey-kerfoot-hayes.
[223] 2013 NHL CBA art. 1 (“’Restricted Free Agent’ means a Player whose [standard player contract] has expired but who is still subject to a Right of First Refusal . . . in favor of his Prior Club [due to not accumulating enough service time or meeting any exception that would enable him to become an unrestricted free agent].”).
[224] See id. at art. 10.4. (beginning compensation if a player is signed for an average of $1,110,249 per year).
[225] Id.
[226] Id.
[227] Id. at art. 8.3 (setting the compensation for a first-round pick at a second-round pick proportional to that player’s draft order).
[228] See Igor Eronko (@IgorEronko), Twitter (Mar. 12, 2019, 7:19 AM), https://twitter.com/IgorEronko/status/1105473312132608000 (stating that New York Rangers’ prospect Vitali Kravtsov could not join New York for the remainder of the 2018–19 NHL regular season because his KHL contract was not terminated early by Traktor Chelyabinsk, the Russian KHL team that owned his rights).
[229] Associated Press, Predators Sign 30th Overall Pick Eeli Tolvanen to Entry-Level-Contract, ESPN (Mar.29, 2018), http://www.espn.com/nhl/story/_/id/22955868/nashville-predators-sign-30th-overall-pick-eeli-tolvanen (receiving consent and assistance from KHL team Jokerit Helsingin in Nashville signing Eeli Tolvanen).
[230] 2013 NHL CBA Exhibit 5.
[231] Frequently Asked Questions, Capfriendly (last visited Apr. 7, 2019), https://www.capfriendly.com/faq#performance_bonus.
[232] See BarDown Staff, The Avs Forcing a Game 7 Earned Cale Makar a Bonus that Almost Doubled His Salary, BarDown (last visited Jun. 8, 2019), https://www.bardown.com/the-avs-forcing-a-game-7-earned-cale-makar-a-bonus-that-almost-doubled-his-salary-1.1301874 (structuring Makar’s bonuses to give him a games played bonus of $107,500 for reaching ten games, including playoffs, and another $787,500 for being awarded the playoff MVP). It should be noted, however, that structuring the bonus in this fashion was heavily dependent on Colorado’s collective team play, rather than the contributions of Cale Makar. Therefore, such structuring may not be feasible for all prospects.
[233] Perhaps making this change could be part of a solution to players’ declining percentage of league revenue.
[1] See SI.com Staff, NHL Round Table: NHL Email Debacle; Cup or Bust for Caps?, Sports Illustrated (Apr. 1, 2016), https://www.si.com/nhl/2016/04/01/nhl-concussion-email-washington-capitals-stanley-cup-norris-trophy-contenders-jimmy-vesey (stating that Vesey’s skill gave him a unique “leverage” that allowed him to create a bidding war for his services).
The Hat Trick Herald 