On Tuesday, the Philadelphia Flyers announced that they placed forward Ryan Johansen on unconditional waivers, seeking to terminate his contract. The move came as yet another shockwave in one of the most jam-packed news weeks of the Flyers’ offseason. In defense of their decision, the Flyers cited a “material breach” of Johansen’s contract, but the team provided no further details.
Ryan Johansen’s agent, Kurt Overhardt, responded several hours later. In their own post, KO Sports Inc., stated that the Flyers’ decision was “disappointing”. The agency made particular note that “Ryan Johansen has suffered a severe hockey injury that requires extensive surgery which has been scheduled,” and they expressed that Johansen has “worked in good faith with the Club”.
The implication of these comments is that the Flyers disagree with Johansen about the nature and extent of the injury that has allegedly plagued him since March. And if Johansen is refusing to report to the team on this basis, the Flyers now believe they have grounds to terminate him. Do they?
Risks
Boiled down and oversimplified, the Flyers are accusing Johansen of faking or exaggerating an injury. A lot of ink has already been spilled as to why Johansen would do such a thing, but that sort of speculation is beyond the scope of this article. What’s important is that the Flyers’ decision is, on its face, extremely courageous.
As a general legal principle, when two parties enter into a contract and one party (Party A) subsequently breaches the contract, the non-breaching party (Party B) is entitled to terminate and void the contract. Some contracts (such as Johansen’s) expressly provide for this right of termination; however, termination does not come without its risks. Continuing the analogy, if Party B were to declare the contract null and void, refusing to act in accord with the contract because it believes that Party A breached the agreement, but if it is later determined that Party A did nothing wrong, Party A could thereafter attack Party B for wrongfully terminating the agreement. Said another way, Party B is now on the hook for breach because it failed to perform its own obligations.
For reasons more fully explained below, the Flyers in this scenario are Party B. They have declared that Ryan Johansen breached his contract, and thus, they can void it. However, if the Flyers are wrong, they will then be on the hook for their wrongful attempt to terminate the agreement.
Why, then, would the Flyers take such a big risk to fight with Johansen about whether he is injured?
Picking Apart Johansen’s Contract
Interestingly, the Collective Bargaining Agreement (“CBA”) between the NHL and the NHLPA provides for this precise scenario. For those who are unaware, the CBA provides a Standard Player’s Contract (“SPC”) to ensure each player in the league has consistent and protected rights. The SPC creates many obligations of the players. For example, Paragraph 2(a) states that the player agrees “to report to his Club’s Training Camp at the time and place fixed by the Club, in good physical condition”. The player further agrees “to conduct himself on and off the rink according to the highest standards of honest, morality, fair play, and sportsmanship”.
Of importance here is Paragraph 5, which talks about when a player is “disabled or unable to perform his duties under the SPC”. Paragraph 5 actually consists of sub-paragraphs (a) through (o), and it addresses exactly what has happened between the Flyers and Ryan Johansen. It begins:
(a) Should the Player be disabled or unable to perform his duties under this SPC he shall submit himself for medical examination and treatment by a physician selected by the Club.
This part of the contract is most commonly applied to a player who is genuinely injured and who is told by the team doctors to take some time off. Of course, there are many logistic complications that take place behind the scenes of these decisions, and thus, the next few paragraphs address the medical fees for the examination, the rights of the team if a player is unable to play, and whether the player will be paid in such a scenario. Then comes Paragraph 5(e):
(e) In the event that the Player wishes to seek a second opinion in respect of the Club Physician’s determination regarding the Player’s fitness or unfitness to play, the Player shall provide electronic notice to the Club.
Here, the contract recognizes that a player might disagree with the team doctor as to his fitness or disability. In that case the player is entitled to obtain a second opinion from his own doctor, and the player’s doctor must then make his or her own determination as to the player’s fitness to play. Importantly, all of these examinations are followed by extensive medical records, and in fact, the CBA requires each doctor to record his or her findings in a form provided that the CBA provides.
If the team’s doctor and the player’s doctor agree that the player is either disabled and not able to play or not disabled and able to play, the determination is “conclusive, final and binding.” However, it is also possible that the team’s doctor and player’s doctor will disagree. In this case, Paragraph 5(g)(iv) states that “they shall confer and agree on an independent physician to examine the Player.” The independent doctor will then render his or her own findings, and this determination is “conclusive, final and binding” without any regard to what was said by the team’s doctor or the player’s doctor.
Here is the most important part, found in Paragraph 5(n): “If the Player is declared to be fit for play . . . he must perform his duties hereunder.” What are those duties? Recall Paragraph 2(a), which provides that the player agrees “to report to his Club’s Training Camp at the time and place fixed by the Club.” Again in Paragraph 2(c), the player is required “to give his best services to the Club and to play hockey only for the Club unless his SPC his Assigned, Loaned or terminated by the Club.”
The failure to perform one or more of these duties is called a “breach,” or to use the words of the SPC, a “material breach.” Paragraph 14 of the SPC threatens:
“The Club may also terminate this SPC upon written notice to the Player (but only after obtaining Waivers from all other Clubs) if the Player shall at any time:
- (a) fail, refuse, or neglect to obey the Club’s rules governing training and conduct of Players, if such failure, refusal or neglect should constitute a material breach of this SPC; or
- (b) fail, refuse or neglect to render his services hereunder or in any other manner materially breach this SPC.
Because a team may only terminate a contract “after obtaining Waivers from all other Clubs,” the Flyers have placed Ryan Johansen on unconditional waivers.
What does it all mean?
If the Flyers will indeed move forward with the termination Johansen’s contract, we should assume they have a basis to do so. This decision is not the result of Danny Briere waking up on the wrong side of the bed, nor is it a PR ploy to appear tough and strong. This is is the product of an extensive series of medical evaluations, for which there will inevitably be a HIPAA-protected paper trail.
One can assume that Johansen’s injury has been a hot topic in the front office, and in the offseason, Johansen likely expressed discontentment with last season. If the discontentment with the past turned into hesitation about the future, Briere likely recommended that Johansen receive an evaluation from the team doctor who presumably cleared Johansen to play. We can further assume that Johansen, acting well within his rights, received a second opinion from a doctor of his choice, and Johansen’s doctor likely disagreed with the team’s doctor. It was probably at this point that Johansen was recommended for a surgical procedure; however, it was not the end of the dispute.
Pursuant to the SPC, a third, independent doctor must have been consulted. If you trust the Flyers’ front office, you can assume that the third doctor deemed Johansen fit to play, but if you believe Johansen’s agent, the doctor may have come to the opposite conclusion. Regardless, one thing is essential to understand: If the Flyers failed to follow the above process step by step, they likely prejudiced Johansen’s rights under the SPC and improperly attempted to terminate it.
Moving Forward
As Charlie O’Connor has astutely pointed out, this dispute has been marinating for a while, and it won’t be resolved without legal intervention.
The CBA expressly requires every dispute to be resolved in arbitration. Arbitration is, to put it simply, a method of dispute resolution that respects the parties’ privacy and avoids the court system. Arbitration is initiated by filing a “grievance,” but it may only be initiated by the NHL or the NHLPA. Thus, for Johansen’s rights to be protected, the NHLPA will stand in his place.
The NHLPA has sixty days from the “date of occurrence or non-occurrence of the event upon which the Grievance is based,” which is the date on which the Flyers placed Johansen on waivers and notified him of their intentions to terminate his contract. The Flyers will then have ten days to respond.
In the following days, weeks, or months, the parties will exchange files and opinions regarding Johansen’s fitness to play, and absent a settlement, the parties will appear at a hearing. There, an independent arbitrator will hear the totality of the evidence and render a decision within thirty days after the hearing.
Many prominent voices in the hockey universe indeed believe that Johansen and the Flyers will settle, but given the Flyers’ confidence that Johansen is able to play, it seems unlikely that the organization will back down without a fight. This decision to cut ties with Johansen shows that the Flyers have run out of patience, and they expect Johansen to play or to find another team.
