This story originally ran on SI.com on July 20, 2012.
During the summer of 2002, Brendan Morrison of the Canucks was a man being compared to a mouse. During a salary arbitration hearing, an attorney arguing on behalf of the team tried to minimize Morrison’s contributions to Vancouver’s just-concluded season by likening linemates Todd Bertuzzi and Markus Naslund to elephants.
“‘But for the elephant, [Morrison] never would have been able to get across the swaying bridge,’ I still remember the lawyer, in a French accent, telling the arbiter,” says Morrison’s agent, Denver-based Kurt Overhardt. “‘Monsieur arbiter, can we agree that the linemates are the elephant, and player X is the mouse?’ It was hilarious. By then, my client was laughing so hard he was turning beet red. Even the guys from the league who were monitoring the whole thing were laughing.”
Morrison, who had set career-highs for goals (23), assists (44) and points (67) and was +18 that season, laughed last after the hearing. His $775,000 salary tripled as part of a two-year, $4.6 million settlement awarded by an independent third-party. It was the second-highest arbitration increase to that point in league history.
Levity is most often in very short supply at NHL arbitration hearings, which is partially why their incidence has waned over the years. In 2004, a total of 67 players filed for arbitration, with 18 cases actually heard. Last year, only one was heard by an arbitrator—with Nashville’s Shea Weber winning an NHL record one-year, $7.5 million award. This year, only 16 players filed, and by the start of the two-week hearing period (July 20-August 2) eight were still listed by the NHLPA as due to be heard. Florida's Kris Versteeg was the most prominent name on the list. Edmonton's Sam Gagner reached a one-year $3.2 million deal with the Oilers scant hours before his scheduled hearing. Among those who had already settled were Detroit Red Wings defenseman Kyle Quincey and St. Louis Blues winger David Perron, whose teammate, T.J. Oshie, agreed to a five-year, $20.875 million contract the day before the start of arbitration.
Potential cases are most often settled before they go in front of one of eight members of the National Academy of Arbitrators, for the same reasons that most legal matters are settled before they are heard by a judge: arbitration is expensive, time-consuming and, in the world of an escalating salary cap, usually not worth the bother. All cases are heard in Toronto, which means both parties have to shell out for plane rides they don’t want to take and hotel rooms they don’t want to visit in the summer. Years ago, a difference of a couple hundred thousand dollars between the parties' asking prices really meant something. Today, not so much.
Horror stories from old arbitration cases remain cautionary tales for both teams and players, such as the time in 1997 when former New York Islanders GM Mike Milbury reportedly reduced Tommy Salo (photo above) to tears with reasons why the goalie didn’t deserve his asking price. In 2000, former Philadelphia Flyers GM Bob Clarke was said to have angered John LeClair so much during an “arbo” hearing—badmouthing the winger even though LeClair had scored 40 or more goals in each of the previous five seasons—that their working relationship was irreparably damaged. (LeClair walked away from that bruisefest with a then-record $7 million award.) Former Colorado Avalanche GM Pierre Lacroix had a well-documented history of getting rid of players not long after they filed for arbitration.
There are some who believe that Nashville’s decision to take Shea Weber to arbitration last summer may have contributed to his failure to reach a long-term extension with the team. On Thursday, the Predators were subjected to the Flyers’ reported 14-year, $110 million offer sheet to Weber and now have less than a week to decide whether to match it or let him go in exchange for possibly four first-round draft picks.
Under the current NHL Collective Bargaining Agreement, the team or the player can file for arbitration. Each side gives a desired salary figure to the arbitrator, usually a retired judge or lawyer, then the party that chose to enter the process gets 90 minutes to argue its case. The other side gets only 30 minutes for a rebuttal. That’s why teams mostly abhor arbitration while players and agents like it. Players are usually the ones that file, and they get more time to be persuasive.
Both sides can argue over seemingly arcane statistics, such as the time a team claimed that an Overhardt client’s number of hits during a season meant little because they were not “impactful” hits—whatever that meant.
“One general manager got up and said about my client, ‘It’s like a drunk and a lamp post. Who needs each other more? Does the drunk need the lamp post or does the lamp post need the drunk?’” says Overhardt, who thinks that a combination of fewer cases being heard and less financial pressure on teams over only one or two salaries may be the reasons why the arbitration process doesn’t seem to produce the lingering hard feelings of yesteryear.
“You have to be professional, and almost every time that’s the case with everyone involved,” he says. “But you have to be very prepared.”
Teams are leery of taking Overhardt’s clients to arbitration because he usually comes to cases armed with reams of statistical data that is comparable to other players. He even brought a helmet to one case as proof of how his client played through a broken jaw—to better impress the arbiter. Overhardt, in fact, calls arbitration a “fun process.”
“You are laying out evidence for something you believe in,” he says. “For any lawyer, that’s something they enjoy. Players had to just take whatever a team offered in the old days, or sit out and not get paid at all. An impartial third party was and still is the perfect solution to that problem for the player who is eligible.”
The NHL doesn’t seem to agree. In their opening CBA proposal to the NHLPA, team owners called for the outright elimination of arbitration. Players will surely disagree.
Arbitration may be required.