Gear: How will NHL investigation impact Evander Kane’s grievance?

Evander Kane’s entire career has been a bit of a roller coaster ride. 

For Kane, Thursday’s news that the NHL would not be suspending the 30-year-old forward for alleged breaches of COVID-19 protocols must have made him feel like he had survived the latest free fall from the top of the coaster loop. 

However, like any good roller coaster, he will have to face one more uphill climb and possible descent before the cars will come to a complete stop.

The NHL issued a statement confirming that Kane would not face any league-imposed discipline in relation to the allegations that he illegally crossed the U.S.-Canada border during the holiday break while he was supposed to be isolating in COVID protocol as a member of the San Jose Barracuda, the San Jose Sharks’ AHL affiliate. 

The NHL statement was not one that can be viewed as fully exonerating Kane, saying only that the independent investigation team had not found sufficient evidence to “conclusively find that Mr. Kane knowingly made misrepresentations regarding his COVID-19 status or test results in connection with is international travel.”

With no suspension blocking his path to the ice, Kane has signed a one-year agreement with the Edmonton Oilers that will pay him a total of just under $1 million USD, by virtue of a signing bonus of $625,000 USD, plus the pro-rated portion of the league’s $750,000 USD league minimum salary for the balance of the playing season. His contract will represent a salary cap hit of just over $2.1 million for the Oilers, based on the calculations the NHL uses for mid-year signings, once it is officially registered on Friday.

Anyone thinking that the NHL statement and Kane’s signing with the Oilers puts an end to the intrigue needs to buckle back in for the rest of the ride.

The NHL’s independent investigation, conducted by New York-based law firm Patterson Belknap Webb & Tyler LLP, was always just a sidebar to the main dispute – that being the grievance by the NHL Players’ Association against the San Jose Sharks for the termination of Kane’s NHL contract with nearly $22 million in salary remaining.

As more thoroughly discussed in an earlier article on Daily Faceoff, the Sharks view the totality of Kane’s conduct in their organization as justifying their termination of his standard player’s contract. 

Every player contract includes the standard obligations on the player to “conduct himself on and off the rink according to the highest standards of honesty, morality, fair play and sportsmanship, and to refrain from conduct detrimental to the best interest of the Club, the League or professional hockey generally.”

Only the Sharks know exactly what facts they would put before an arbitrator, should the matter proceed to a hearing. In addition to matters that have played out publicly, they may very well have internal allegations that have gone unreported. Their ace in the hole would certainly be the fact that Kane forged his COVID-19 vaccine passport earlier this season, a situation for which he already served a league-imposed 21 game suspension.

Since the grievance process is completely separate from the NHL discipline process, the fact that a suspension has already been served by Kane does not formally constrain the arbitrator in any way. 

However, the suspension was accompanied by a loss of income for Kane, so it may carry weight in the arbitrator’s assessment of whether termination is appropriate or perhaps too harsh given the earlier remedy.

In a hearing, the Sharks would also no doubt raise the circumstances of Kane’s alleged international travel violation, even though the NHL investigators failed to turn up sufficient evidence to justify a suspension.  The arbitrator would not be bound by the findings of the independent investigators retained by the NHL.  The arbitrator would be free to form an independent view of the situation, and in any event, he would be looking at those circumstances, not in isolation, but as a pattern of conduct that, when viewed together with other allegations put forward, might justify a finding that Kane breached his contract.

To put it simply, the NHL investigation was confined to the alleged international travel violation, while the arbitrator would be considering Kane’s entire “body of work” with the Sharks.

Had the NHL investigators found enough evidence for the NHL to levy a second COVID-related suspension this season, it is a fair bet that the Sharks would have had success arguing that the threshold for contract breach-worthy conduct had been met. 

After the league’s non-definitive statement on Thursday, the Sharks’ case suffered a severe blow, but not a knockout punch. It is still open to the arbitrator to find that the termination by the Sharks was proper.

Now that Kane is about to don an Oilers jersey, what will happen if the matter proceeds to hearing and the arbitrator rules against the Sharks? The arbitrator will have the discretion to impose a remedy that makes sense in the circumstances, and it therefore wouldn’t result in the Oilers’ contract being undone and Kane being forced to return to the Sharks. 

The arbitration award would break new ground, but I would expect Kane would be paid the remaining entitlement in full and that some form of cap charge would be assessed against the Sharks for the years that would have remained had the contract not been terminated. I would also expect the Sharks to get some measure of cash and cap relief as a consequence of the Oilers’ intervening signing.

As previously indicated, there is a good chance this matter settles before a hearing. There is just too much at stake for either side to risk a devastating arbitration award against them.  There will also be a lot of pressure to have this story go away as quietly as possible, so that Kane, the Sharks, the Oilers and the league can just move on. 

Or, put another way, so that all parties can come to that complete stop and safely exit the coaster.  

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Chris Gear joined Daily Faceoff in Jan. 2022 after a 12-year run with the Vancouver Canucks, most recently as the club’s Assistant General Manager and Chief Legal Officer. Before migrating over to the hockey operations department, where his responsibilities included contract negotiations, CBA compliance, assisting with roster and salary cap management and governance for the AHL franchise, Gear was the Canucks’ vice president and general counsel.

Click here to read Gear’s other Daily Faceoff stories.