Ladies and gentlemen of Hockeybuzz, I’m just a caveman. I fell in some ice and later got thawed out by some of your scientists. Your world frightens and confuses me. Sometimes the honking horns of your traffic makes me want to get out of my Jeep and run off into the hills… or whatever. Sometimes when I get a message on my phone, I wonder “did little demons get inside and type it?” I don’t know. My primitive mind can’t grasp these concepts.
But there is one thing I do know: someone has to read the Collective Bargaining Agreement (CBA) between the NHL and the NHLPA to find out what a medical grievance from Jack Eichel might look like, and it might as well be an unfrozen caveman lawyer.
Phil Hartman was such a gem.
Anyway, it is indeed once again time to crack open the CBA and try to decipher what a medical grievance process for Jack Eichel could look like. Various credible media sources have indicated that Jack Eichel will pursue this avenue in the near future if the Sabres do not acquiesce to his preferred medical treatment or trade him very soon.
It is specifically in the Memorandum of Understanding (MOU) addendum to the CBA where much of this information can be found. The 2020 CBA takes much of its framework from the 2012 CBA and makes its changes and additions via the MOU document. Large portions of text in the 2012 CBA are replaced with new sections from the MOU, though not in a literal sense. One has to compare the documents side-by-side and substitute in the text. Both documents are readily available on the NHLPA website.
Frank Herbert’s “Dune,” which is such a monster work of written fiction that it needed to be split into two parts for a movie adaptation, is only 412 pages. The CBA clocks in at 517 pages and there are no sandworms to make it interesting. The MOU is only 71 pages long, though, and much more concise on the topic, so we’ll start there. Specifically, we’ll start with a section on second opinions:
Page 36, Article C, Section (a) states:
(a) A Player may seek a second medical opinion regarding a diagnosis made by a team physician or a course of treatment (including the timing thereof) prescribed by a team physician ("Second Medical Opinion") from a list of medical specialists with outstanding reputations and experience in their area of expertise as may be evidenced by: (i) a strong publication, presentation and/or lecture record in the relevant area of expertise, (ii) a record of superior performance and knowledge in his or her principal area of clinical practice, or (iii) substantial experience in the provision of clinical care to elite athletes, as agreed upon by the Joint H & S Committee ("Second Medical Opinion List"). The medical specialists on the Second Medical Opinion List (the "Second Medical Opinion Physician(s)") shall be listed by specialty and by geographic region.
Players are entitled to second opinions, got it. But what if the team and the player don’t agree on a procedure after that? Now this is where the MOU has removed and replaced an entire section of the CBA with a new framework to cover such a possibility.
It’s possible – and again – unfrozen caveman lawyer here, that Eichel’s team would choose to invoke Attachment D of the MOU which replaces subsection 34.1 with the following:
The NHLPA, acting on a Player’s behalf, may submit a Complaint regarding a violation of the standard of care as set out in CBA Subsections 34.1 (a) and (b) to the JHSC for determination. The determination of any such complaint shall be in accordance with the provisions set out in the Procedures Governing Standard of Care Complaints, annexed hereto to as Exhibit XX.
In that paragraph, the text is referencing 34.1(a) which states:
Standard. Each Club shall provide its Players with high quality health care appropriate to their needs as elite professional hockey players, including access to health care professionals, in accordance with the requirements set forth in this Article.
If the player thinks that standard has been violated, such a complaint would be sent in writing to the team and submitted to the “Panel of Experts” (POE) for review. You may be saying to yourself, “self, who is on the panel of experts?” I have terrific news for you. The MOU is happy to provide the answer to your question.
The POE will be a standing body composed of three physicians with substantial experience in sports medicine, and who shall have successfully completed a fellowship in Sports Medicine or have other sports medicine qualifications as the parties may agree. The NHL and the NHLPA shall each independently select one physician, who together shall be delegated to select the third physician. The third physician shall serve as the chair of the POE. The members of the POE may not be presently employed or retained by the NHL, NHLPA, or any Club, and may not serve as a current member of the JHSC or as a SMOP.
What are JHSC and SMOP? I imagine it’s similar to the Jedi Council and the Council of Elrond. A glossary of terms at the end of the CBA would be unbelievably helpful to make searching out the acronyms easier. In all seriousness, it's the "Joint Health and Safety Commission" and "Second Medical Opinion Panel." Anyway, now that you know about the POE, let’s find out what the POE does after listening to arguments about the dispute between the player and the team:
Within thirty (30) days of the conclusion of the hearing, the POE will issue a written opinion (“POE Opinion") as to whether there was a violation of the standard of care set out in CBA Section 34.1. The POE Opinion shall set out the POE’s determination as to whether the standard of care has been violated and provide its reasons for such determination. The POE Opinion shall identify any documents or witnesses relied upon in the POE’s determination. The POE Opinion shall not include a remedy; rather, it must only set out whether a violation occurred.
Stay with me. So the POE is only the second step and non-binding as to a course of action. The POE’s duty is to determine whether there was a violation of the standard of care in the CBA. If they find that indeed it was, from there, the matter is sent to an independent arbitrator for review. The MOU explains that process thusly:
The Impartial Arbitrator shall issue the Remedy, in writing, and provide it to the parties, within thirty (30) days of receipt of the POE Opinion or, if additional evidence or submissions were received, within thirty days of their receipt. The Impartial Arbitrator’s determination of a Remedy shall be based solely on the information contained in the POE opinion, the POE Record and any additional evidence and submissions received from the Parties. The Impartial Arbitrator shall not draft a written opinion with his or her explanation of the Remedy; his or her determination shall be limited to the nature of the Remedy itself.
d. The Impartial Arbitrator’s Remedy shall be final, binding, and not subject to judicial review.
So the independent Arbitrator would deliver a verdict on a potential remedy and that verdict would be final and binding. One does not question the Arbitrator. The Arbitrator is the law.
Here’s the TL;DR version of what’s posted above: Complaint -> POE -> Arbitrator -> Verdict
Keep in mind that this may not be the specific path of resolution that Eichel and his team would pursue through their rights in the CBA. Perhaps his lawyers have a totally different method in mind. This is one legitimate option that would be available to them, to the best of my understanding.
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My thoughts and well wishes are with Kyle Beach and his family through this difficult time. His interview on TSN last night was harrowing and incredibly tough to hear. The NHL needs to make some very difficult decisions regarding the legacy of Hockey Hall of Fame caliber figures who are currently in the league.
Beach has shown admirable bravery in the face of adversity. His willingness to tell his story and speak truth to power during his long journey transcends professional sports and sets a courageous example for others in all walks of life.
Buffalo Sabres Blogger • 
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