ARTICLE 17: GRIEVANCES, ARBITRATION, IMPARTIAL ARBITRATOR
17.1 Grievance. A "Grievance" is any dispute involving the interpretation or application of, or compliance with, any provision of this Agreement, including any SPC. All Grievances will be resolved exclusively in accordance with the procedure set forth in this Article, except wherever another method of dispute resolution is set forth elsewhere in this Agreement.
17.2 Initiation.
(a) A Grievance may be initiated by the NHL or the NHLPA only.
(b) A Grievance must be initiated within sixty (60) days from the date of the occurrence or non-occurrence of the event upon which the Grievance is based, or within sixty (60) days from the date on which the facts of the matter became known or reasonably should have been known to the party initiating the Grievance, whichever is later. A Player need not be under an SPC to a Club at the time a Grievance relating to him arises or at the time such Grievance is initiated or processed.
17.3 Filing.
(a) Subject to the provisions of Section 17.2 above, a party shall initiate a Grievance by filing a written notice by facsimile in accordance with Exhibit 3, with the other party. The notice will set forth the specifics of the alleged action or inaction giving rise to the Grievance, as well as an explanation of the provisions of this Agreement that have been violated and a statement of the remedy sought.
(b) The party served with a Grievance will answer in writing by facsimile in accordance with Exhibit 3, within ten (10) days of receipt thereof.
(c) The answer will set forth admissions or denials as to the facts alleged. If the answer denies the Grievance, the specific grounds for denial will be set forth.
17.4 Grievance Committee.
(a) On at least one (1) day in every month in which a new Grievance has been filed, the NHL and NHLPA will meet at a time and place agreed upon to discuss with specificity the claims, issues and/or questions presented by all newly filed Grievances and to discuss resolution and/or settlement of those Grievances (the "Grievance Committee").
(b) Evidence of settlement discussions and offers shall be inadmissible before the Impartial Arbitrator.
(c) A meeting of the Grievance Committee shall not take the place of any scheduled hearing or excuse a party from participating in the hearing required in Section 17.9 below.
(d) No Grievance may proceed to hearing prior to consideration by the Grievance Committee. However, this provision shall not apply in the event of an expedited Grievance, as provided for in Section 17.17 of this Agreement.
17.5 Arbitration. If a Grievance is not resolved by the parties, the grieving party may elect to arbitrate the Grievance before the Impartial Arbitrator.
17.6 Selection of Impartial Arbitrator. There will be one Impartial Arbitrator, appointed jointly by the parties, who shall serve for the duration of this Agreement; provided, however, that on September 1, 2005 and on each successive September 1, either of the parties to this Agreement may discharge the Impartial Arbitrator by serving written notice upon him/her by that date and upon the other party to this Agreement. The parties shall thereupon agree upon a successor Impartial Arbitrator within the following ninety (90) days, or, failing agreement, an ad hoc Arbitrator shall be selected for each arbitrable Grievance under the Labor Arbitration Rules of the American Arbitration Association then in effect, until such time as the parties agree upon a successor Impartial Arbitrator. The Impartial Arbitrator so discharged shall render decisions in all cases he/she previously heard but will hear no further cases.
The Impartial Arbitrator selected by the parties shall be a member of the National Academy of Arbitrators.
17.7 Procedures for Determining Fitness to Play. The following procedures will govern a determination of whether a Player is disabled and unable to perform his duties as a hockey Player for purposes of Paragraph 5 of the SPC:
(a) At any time a physician selected by a Club makes a determination as to whether or not a Player is disabled and unable to perform his duties as a hockey Player for purposes of Paragraph 5 of the SPC, such physician shall evidence such determination by completing the form attached hereto as Exhibit 25, which shall be provided to the Player at the time of the examination and immediately provided to the Club as well.
(b) Within seventy-two (72) hours of receipt of the required notice from the Club physician, the Player may provide notice to the Club that he is seeking a second opinion pursuant to Paragraph 5 of the SPC. The Player must obtain a second opinion within five (5) days (or later only upon showing of good cause) of receipt of the required notice from the Club physician.
(c) The physician consulted by the Player in accordance with subsection (b) must make a determination as to whether the Player is disabled and unable to perform his duties as a hockey Player and shall evidence such determination by completing the form attached as Exhibit 25, which shall be provided to the Player at the time of the examination and immediately provided to the Club as well. The Club physician and the physician retained by the Player must consult as expeditiously as possible and no later than seventy-two (72) hours (or later only upon a showing of good cause) after the Player receives the determination by the Player's physician.
(d) If, after consulting as provided for in subsection (c), the Club physician and the physician retained by the Player agree that the Player is either disabled and unable to perform, or not disabled and able to perform, his duties as a hockey Player, their agreed-upon determination shall be evidenced by completing the form attached as Exhibit 25, which shall immediately be provided to the Player and the Club. Such determination shall be conclusive, final and binding upon the Club and the Player, absent a showing of improper interference with the procedures set forth in this Section 17.7 and Paragraph 5 of the SPC. However, if the Club physician and the physician retained by the Player cannot agree on whether the Player is disabled and unable to perform his duties as a hockey Player, they shall evidence such disagreement by completing the form attached as Exhibit 25, which shall immediately be provided to the Player and the Club, and shall confer and agree on an independent physician to examine the Player. The independent physician must be selected as expeditiously as possible and, in any event, within the seventy-two (72) hour period referred to in (c) above (or later only upon a showing of good cause). If the physician retained by the Player and the Club physician are unable to select the independent physician within such period, the independent physician shall be selected jointly by a medical designee appointed by the NHL and a medical designee appointed by the NHLPA. That selection shall take place as expeditiously as possible but not later than an additional forty-eight (48) hours after referral to the NHL and NHLPA medical designees.
(e) The Player must submit himself to examination, and the independent physician selected pursuant to subsection (d) must examine the Player, within five (5) business days of his selection (or later only upon a showing of good cause). The independent physician shall make a determination of whether the Player is disabled and unable to perform his duties as a hockey Player and evidence such determination by completing the form attached as Exhibit 25, which shall be provided to the Player at the time of the examination and immediately provided to the Club as well.
(f) The independent physician's determination as to whether the Player is disabled and unable to perform his duties as a hockey Player shall be conclusive, final and binding upon the Club and the Player, absent a showing of improper interference with the procedures set forth in this Section 17.7 and Paragraph 5 of the SPC.
(g) If either the Club or the Player fail timely to comply with any of the requirements set forth in this Section 17.7, absent a showing of good cause, then such non-complying party shall be deemed to have acceded to the other party's position in such dispute.
(h) The Club and Player shall cooperate, and shall cause their respective physicians to cooperate, for the purpose of making medical records available to any physician who examines the Player pursuant to this section.
(i) For purposes of clarity, the Club physician, the physician retained by the Player and the independent physician shall be charged only with determining whether the Player is disabled and unable to perform his duties as a hockey Player. Any other determinations, including whether a Player's disability is a hockey related injury, shall be within the jurisdiction of the Impartial Arbitrator.
17.8 Pre-Hearing Disclosure Statements. The parties shall exchange Disclosure Statements in the manner described below, which Disclosure Statements shall not be shared with the Impartial Arbitrator. The party bearing the burden of presenting its case first shall submit to the other party a Disclosure Statement at least twenty (20) days before the scheduled date of the hearing; the responding party will provide to the other party a responsive statement at least ten (10) days before the scheduled date of the hearing. Disclosure Statements shall contain the following information:
(a) statement of the issue(s);
(b) factual background;
(c) theory of the case;
(d) witness(es) name(s); and
(e) documents the party intends to rely on or submit as exhibits, which documents will be attached to the Disclosure Statement, with an explanation as to what each document is being offered to establish (demonstrative exhibits shall be exchanged prior to the hearing).
Disclosure Statements are to be provided with the purpose and intent of fully apprising the other party of the disclosing party's case to avoid surprise. In the event an issue arises as to the sufficiency of a party's Disclosure Statement, the Disclosure Statements may be provided to the Impartial Arbitrator in connection with the resolution of that issue, if both parties agree. Disclosure Statements shall not preclude either party from raising additional arguments or additional, later-discovered facts in any subsequent pre-hearing Disclosure Statement or in an arbitration hearing.
17.9 Hearing. It is intended that witnesses appear at the arbitration hearing. The parties shall each use their best efforts to require witnesses to appear at the scheduled hearing. If a witness is unavailable, the party offering the witness shall notify the other party as soon as the unavailability of the witness is known. If the parties agree, the witness may testify by telephone. If the parties do not agree, a hearing date shall be selected for the purpose of taking the witnesses' testimony.
The record shall be closed at the end of the hearing unless the Impartial Arbitrator orders to the contrary. If the parties mutually agree to the filing of post-hearing briefs, they shall be filed within ten (10) days of the close of the hearing unless the parties agree to a different filing schedule.
17.10 Hearing Dates.
(a) The parties will schedule five (5) hearing days during each month in which this Agreement is in effect.
(b) With the exception of an expedited hearing provided for in Section 17.17, the NHLPA and NHL shall alternate in selecting the next Grievance scheduled for hearing; provided, however, that if there are one or more Grievances that have been pending for eighteen (18) or more months, then the party that filed such Grievance shall be obligated to select any such Grievance as its next selection.
17.11 Injury Grievance Procedures. The parties shall continue to be bound by the provisions of the Agreement on Injury Grievance Procedures annexed hereto as Exhibit 24. Paragraph 1 of the Agreement is hereby amended to conform to the hearing date provision in Section 17.10(a) above.
17.12 Transcripts. Transcripts will be taken in Grievance arbitration hearings, with the costs shared, provided that if either party wishes to obtain transcripts in an expedited manner, it may elect to order the transcripts expedited, but that party will be responsible for all additional costs. Any other party that elects to also receive the transcript in an expedited manner will share in any additional costs relating to expedition. The transcripts, or any excerpts from the transcripts, may not be disclosed publicly or to the press, and shall remain confidential, solely for the use by the parties in connection with Grievances. The party in the "home" city of the hearing will arrange for the services of a court reporter acceptable to the parties.
17.13 Arbitrator's Decision and Award. The Impartial Arbitrator will issue a written decision within thirty (30) days of the close of the record and receipt of the hearing transcript. The decision of the Impartial Arbitrator will constitute full, final and complete disposition of the Grievance, as the case may be, and will be binding upon the Player(s) and Club(s) involved and the parties to this Agreement; provided, however, that the Impartial Arbitrator will not have the jurisdiction or authority to add to, subtract from, or alter in any way the provisions of this Agreement, including any SPC. In resolving Grievances, the Impartial Arbitrator has the authority to interpret, apply and determine compliance with any provision of this Agreement, including any SPC. Otherwise, the Impartial Arbitrator shall have no authority to alter or modify the contractual relationship or status between a Player and a Club, other than where such remedy is expressly provided for in this Agreement.
17.14 Time Limits. If any Grievance is not processed or resolved in accordance with the prescribed time limits within any step, unless an extension of time has been mutually agreed upon in writing, the grieving party, after notifying the other party of its intent in writing, may proceed to the next step.
17.15 Fees and Costs. Except as otherwise set forth herein, all costs of arbitration, including the fees and expenses of the Impartial Arbitrator, the independent physician and the joint transcript costs, if any, will be borne equally between the parties, except that each party shall bear its own costs of transportation, counsel, witnesses and the like.
17.16 Payment. If an award is made by the Impartial Arbitrator, payment will be made within thirty (30) days of the receipt of the award to the party entitled thereto. The time limit for payment may be extended by mutual consent of the parties or by a finding of good cause for the extension by the Impartial Arbitrator.
17.17 Expedited Arbitration. Upon a showing of good cause, either party may request an expedited hearing before the Impartial Arbitrator and he may so direct such a hearing if he determines that the circumstances so warrant.
17.18 Transfer of Grievance to System Arbitrator. Notwithstanding the provisions of this Article 17, should it be determined by either the Impartial Arbitrator or the System Arbitrator, either on application of a party or sua sponte, that the resolution of a Grievance pending before the Impartial Arbitrator could impact upon the interpretation or application of any provision of Articles 49 or 50, the Grievance shall be transferred, for resolution or disposition, from the Impartial Arbitrator to the System Arbitrator.
|
