A Proposal For the Early Resolution of NHL Contract Disputes

The NHL season began a couple days ago and, as is often the case at the beginning of every season, contract disputes remain a top story. The most prominent dispute this year is between Restricted Free Agent William Nylander and the Toronto Maple Leafs. According to various media reports, Nylander seeks a contract worth $8 million per season. On the other hand, the Maple Leafs, again according to various media reports, are somewhere in the $6-6.5 million dollar per season range. Every year contract disputes such as the one between Nylander and the Maple Leafs unfold in the public arena to the detriment of both player and team. Unfortunately, the NHL Collective Bargaining Agreement (“CBA”) contains no formal mandatory mediation process for the resolution of contract disputes. I would propose that the next NHL CBA include provisions for mandatory mediation during contract negotiation.

Instead of mediation, the current CBA contains provisions for the use of salary arbitration in the context of certain contractual disputes. The purpose of this post is not to delve into the mechanics of when salary arbitration is available under the current CBA, but rather to highlight that arbitration fundamentally differs from mediation and that mediation may be better suited to aid in the resolution of NHL contractual disputes. Indeed, once the parties proceed down the salary arbitration path irrevocable damage to both player and team may have already occurred.

Arbitration is inherently an adversarial process that results in a winner and a loser. The parties submit to a third party who renders a decision based on the arguments and evidence presented by each party. Moreover, the public is aware that the player and team have engaged in this process. Mediation, on the other hand, involves the parties submitting to a private dispute resolution process presided over by a neutral third party. That third party does not have the power to make binding decisions. Rather he or she is there to try and facilitate a resolution. 

In the professional sports context, there are numerous advantages to having the parties mediate their disputes. First, mediation is a private and confidential process that allows the parties to air their grievances outside of prying media eyes. This is significant for professional athletes who hope to sign lucrative endorsement deals that are largely based on the public’s perception of not only their skill, but also their commitment and loyalty to their team. A lengthy drawn out contractual dispute where fans take the side of their favorite team invariably hurts a player’s marketability. For the team, mediation allows them to avoid appearing to the public as if they are sacrificing the on-ice product to save a few dollars.

As is the case in the ongoing Nylander dispute, lines have been drawn in the court of public opinion with Nylander publicly stating that he has to “take care of myself” and Maple Leaf team President Brendan Shanahan stating that Nylander has to sacrifice his financial demands for the greater good of the team. Neither team nor player benefits through this public dialogue.

In addition to the private and confidential nature of mediation, mediation requires all of the decision makers to be present in an informal setting. The importance of simply having all parties present cannot be understated. What we are seeing unfold with the Nylander dispute is a negotiation being conducted by the General Manager of the Maple Leafs, Kyle Dubas, and William Nylander’s agent, Lewis Gross. Nylander has consistently said that he is letting his agent handle the negotiations. Gross is not the decision maker, Nylander is. By bringing the decision makers together, a skilled mediator would be able to identify what Nylander’s actual needs, interests and desires are. Perhaps his desire to win a Stanley Cup or to play on a highly skilled team in a large hockey market is something that he, not his agent, values. Understanding Nylander’s, and the Maple Leafs’, interests is the key to unlocking this settlement stalemate and mediation is the process best suited towards a getting there with minimal detrimental impact to team and player.

Nylander’s contractual situation is not unique. This story plays out every NHL season. It is time that both players and teams realize the value in mediating their disputes. Therefore, when the current CBA expires a mandatory mediation provision, in a similar vein to that which exists in the Ontario Rules of Civil Procedure, is something that both players and teams should think long and hard about including in the context of resolving contractual disputes.