ARTICLE 48: SYSTEM ARBITRATION
48.1 System Grievance.
(a) A "System Grievance" is any dispute involving the interpretation or application of or compliance with the provisions of Articles 49 (Player Compensation Cost Redistribution System), 50 (Team Payroll Range System) and those provisions of Article 26 (No Circumvention), Article 9 (Entry Level Compensation), Article 10 (Free Agency) and/or any other Article in which the grievance resolution could affect the interpretation or application of the provisions of Article 49 or 50.
48.2 Initiation.
(a) A System Grievance may be initiated by the NHL or the NHLPA only.
(b) A System Grievance arising out of the provisions of Article 26 (No Circumvention) shall be initiated and processed in accordance with and shall be subject to the provisions of Section 26.13.
(c) A System Grievance arising out of the Initial HRR Report may be initiated within three (3) days of the receipt by the Parties of the Initial HRR Report being grieved, but in no event longer than
fifteen (15) days following receipt of such Report. A System Grievance arising out of the Interim or Final HRR Report must be initiated within fifteen (15) days of the receipt by the parties of the Report being grieved.
(d) Except as provided in paragraphs (b) and (c) of this Section 48.2, System Grievances shall be filed within sixty (60) days from the date of the occurrence or non-occurrence of the event upon which the System 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 System Grievance, whichever is later.
(e) Any System Grievance shall be discussed by the Grievance Committee provided for in Section 17.4 prior to the scheduling of the matter for hearing by the System Arbitrator. Notwithstanding the foregoing, the Grievance Committee may, but shall not be obligated to, discuss Initial, Interim and Final HRR Report System Grievances prior to the hearing.
48.3 Filing. Subject to the provisions of Section 48.2 above:
(a) A party shall initiate a System Grievance by filing a written notice by facsimile with the System Arbitrator and the other party in accordance with Exhibit 3. The notice shall set forth the specifics of the alleged action or inaction giving rise to the System Grievance, as well as an explanation of the alleged violation and reference to the specific provisions of this Agreement that allegedly have been violated and a statement of the remedy sought.
(b) The party served with a System Grievance will answer in writing by facsimile within ten (10) days of receipt of the System Grievance in accordance with Exhibit 3, except in the event of a System Grievance filed under Section 48.2(c) above, in which case the responding party shall answer within three (3) days of receipt of the System Grievance, but in no event later than one (1) day prior to the hearing. The answer shall be submitted to the grieving party and the System Arbitrator.
48.4 Arbitration.
(a) A System Grievance not resolved by the parties and not arising under Section 48.8 or Section 48.4(b) shall be submitted to the System Arbitrator for scheduling within four (4) days of the discussion by the Grievance Committee and shall be scheduled for hearing expeditiously.
(b) Any System Grievance with respect to the Initial HRR Report shall be heard by the System Arbitrator within five (5) days of the filing of said System Grievance, with his decision issued within forty-eight (48) hours after the close of the hearing with any opinion to follow within seven (7) days thereafter.
(c) Any System Grievance with respect to the Interim or Final HRR Report shall be heard and decided in accordance with the procedure described in Section 48.8.
48.5 System Arbitrator.
(a) There shall be one System Arbitrator, appointed jointly by the parties, who shall serve for the duration of this Agreement; provided, however, that on February 1, 2007 and on each successive February 1, either party may discharge the System Arbitrator by serving written notice upon him and upon the other party by that date. The parties shall thereupon agree upon a successor System Arbitrator within the following sixty (60) days. Should the parties fail timely to agree upon said successor, each shall immediately designate the Dean of either a school of law or business and said two Deans shall, within sixty (60) days, jointly appoint a successor who satisfies the requirements of subparagraph (b) below.
(b) The System Arbitrator to be appointed hereunder shall be an attorney with significant experience with matters requiring financial sophistication and business/accounting expertise and as an arbitrator or judge or other decider of contested proceedings.
(c) The System Arbitrator shall make findings of fact and award appropriate relief including, without limitation, damages and specific performance. The System Arbitrator shall render an award as soon as practicable, and shall set forth the basis for such award in a written opinion that either accompanies the award or is issued within a reasonable time thereafter. In no event shall either the award or the written decision be issued more than thirty (30) days following later of the date upon which the record of a System Arbitration proceeding is closed, the transcript received or, where applicable, the date designated by the System Arbitrator for the submission of post-hearing briefs.
(d) The System Arbitrator shall have the authority to compel the attendance of witnesses and the production of documents in connection with any matter within the jurisdiction of the System Arbitrator.
(e) Awards of the System Arbitrator shall upon their issuance constitute full, final and complete disposition of the dispute, and shall be binding upon the parties to this Agreement and upon any Player(s) or Club(s) involved.
(f) The System Arbitrator shall not have jurisdiction or authority to add to, detract from, or alter in any way the provisions of this Agreement or any SPC.
48.6 Costs Relating to System Arbitration. The compensation of the System Arbitrator and the costs and expenses incurred in connection with any proceeding brought before the System Arbitrator shall be shared equally by the parties to this Agreement; provided, however, that each participant in such proceeding shall bear its own attorneys' fees and litigation costs.
48.7 Procedure for System Arbitration. All matters before the System Arbitrator shall be heard and determined expeditiously. All orders and notices issued and directed by the System Arbitrator shall be served on the parties and their respective counsel and any counsel appearing for individual Players or individual Clubs.
48.8 Special Procedure for Disputes with Respect to HRR Reports.
(a) Notwithstanding any of the other provisions of this Agreement, at the request of either the NHL or the NHLPA, and irrespective of which party may initiate the proceeding, the procedures set forth in Section 48.4(b) with respect to a System Grievance involving the Initial HRR Report and, in this Section 48.8 with respect to a System Grievance involving the Initial, Interim or Final HRR Report, shall apply to the resolution of any disputes with respect to a HRR Report. If in connection with such disputes, there is any conflict between the procedures set forth in these Sections 48.4(b) and 48.8, and those set forth elsewhere in this Agreement, the procedures set forth in Sections 48.4(b) and 48.8 shall control.
(b) A party may initiate a System Grievance arising out of the Initial, Interim or Final HRR Report with respect to any dispute or claim concerning: (i) the amount(s) of HRR, Player Salaries, Benefits and Bonuses as to which the Independent Accountants have completed their review and which is the subject of a good faith dispute between the parties; (ii) the amount(s) of HRR, Player Salaries, Benefits and Bonuses as to which the Independent Accountants have not completed their review and with respect to which the parties have a good faith disagreement; (iii) all other issues with respect to which the parties have a good faith disagreement, (including but not limited to disputes over the amounts and exclusion or inclusion of any particular revenues or expenses or sources of revenues in the Initial, Interim or Final HRR Reports), of which the parties were aware or reasonably should have been aware, at the time the proceeding was initiated, based upon the contents of the Initial, Interim or Final HRR Report, or other documents or writings provided to the parties by the Independent Accountants in connection with their HRR audit.
(c) A party's failure to initiate a proceeding before the System Arbitrator within the time period set forth in Section 48.2(c) with respect to the disputes or claims enumerated in that subsection shall forever bar that party from asserting or seeking relief of any kind for any such dispute or claim; provided, however, that the provisions of subsection (b) above and this subsection (c) shall not bar a party from initiating a proceeding before the System Arbitrator:
(i) With respect to a dispute or claim concerning a HRR Report as to which such party was not aware or reasonably should not have been aware, based upon the materials referred to in subsection (b) above, during the sixty (60) day period following the delivery of such HRR Report; or
(ii) With respect to any dispute or claim relating to a subsequent League Year, including but not limited to any dispute concerning the includability or non-includability in HRR of a category or type of revenue or the allowance or disallowance of a category or type of expense, with regard to whether, based upon the materials referred to in subsection (b) above (other than an Initial HRR Report, Interim HRR Report or Final HRR Report), the party was or reasonably should have been aware of such dispute or claim during the sixty (60) day period following the delivery of such HRR Report.
(d) Subject to subsection (c)(ii) above, no determination made by the System Arbitrator in a proceeding commenced pursuant to this Section 48.8 shall be retroactive to League Years for which a Final HRR Report has been issued and accepted by the NHL and the NHLPA.
(e) Any dispute concerning the amounts (as opposed to the inclusion or exclusion) of any revenues or expenses included in an Initial, Interim or Final HRR Report (hereinafter referred to as "Disputed Adjustments") shall, whenever such Disputed Adjustments for all Clubs are adverse to the party asserting the dispute in an aggregate amount of less than $5 million for any League Year covered by this Agreement, be resolved by the Independent Accountants; and the determination of the Independent Accountants shall constitute full, final and complete disposition of the dispute and shall be binding upon the parties to this Agreement. Notwithstanding the foregoing, any Disputed Adjustments that involve the interpretation, validity or application of this Agreement shall be resolved by the System Arbitrator.
(f) All other disputes involving a HRR Report (including but not limited to disputes over the amounts and includability of any revenues or expenses in such Reports) shall be resolved by the System Arbitrator.
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