Tuesday, August 31, 2010


Justice Delayed is A Contract You're Stuck With

(I've written a ton of background on Khabibulin on my own site that I don't particularly feel like rehashing. It should be up sometime tomorrow; search Khabibulin if you're interested.)

One of the things that you don't really realize until you follow a truly horrible team that is an ongoing circus is that you can't really be certain that you won't take a vacation at precisely the wrong time. I figured nothing would really happen when I planned to leave the country in late August and early September and then, lo and behold, Nikolai Khabibulin decides to waive his right to a jury trial on his extreme DUI charge and have a trial by judge alone last Friday. When I step back from that sentence, I can't believe I just wrote it but that is the lot of the Oilers fan in the early days of the teens: hoping against hope that the middling group of bumblers that runs the club somehow stumbles into a way out of their worst mistakes and is lucky enough to avoid any other horrific gaffes with which they might somehow be inspired. That this is more rational than hoping that they get fired and replaced with competent management is too depressing to contemplate, so I try not to think about it.

A lot has happened in the past few days. I thought that the trial was straightforward enough - as I understand things from following the excellent @azc_mclellan on Twitter, Khabby's defence involved calling an expert to give evidence that his blood alcohol was actually .158 +/- 10%. The idea, as I understand it, was to establish that a BAC of below the .15 at which a DUI becomes an Extreme DUI (with more severe penalties) could not be ruled out beyond a reasonable doubt. The judge didn't buy it (hopefully a copy of his reasons turn up somewhere so that we can learn why) and Khabby was convicted.

Over the next few days, we were inundated with a deluge of dumb commentary. The Oilers' statement came out first, so I'll start with it:
“The Edmonton Oilers acknowledge and respect the decision handed down today by the Scottsdale City Court to goaltender Nikolai Khabibulin. Both Nikolai and the Oilers organization recognize the severity of what has transpired. We plan on meeting with Nikolai, his agent and the National Hockey League in the near future.”

Once sentencing has been imposed on Tuesday, August 31st, Oilers General Manager Steve Tambellini will be available to the media.

Edmonton Oilers hockey is presented in part by the Rexall Family of Pharmacies, Molson Canadian, ATB Financial, TELUS, Cenovus Energy and Ford.
You wonder if maybe, just maybe, this wasn't a statement that you tag the list of sponsors onto. Particularly when one of those sponsors is Molson. Of course, if you're going to do it, why not go all the way? "Do you want to be like Nikolai Khabibulin? Spend your fat dividends from Cenovus Energy on a case of Molson, get drunk, drive while impaired in your Ford, make your call to your lawyer from your TELUS cellphone when you get arrested and then get your Antabuse from the Rexall Family of Pharmacies to help you with your problem!" But I digress.

The really curious part in that statement is the suggestion that both Nikolai and the Oilers recognize the severity of what has happened. While I'm not sure what that means - is "severity of what has transpired" the same as "seriousness of the conviction" - I'll come back to that a little later on but I wonder if Khabibulin knew that the Oilers were going to release a statement on his behalf in which he recognizes the severity of what happened.

While some of your more bleeding edge purveyors of Oilers news had kicked around the possibility of the Oilers attempting to void Khabibulin's contract if he was convicted months ago, the conviction itself appears to have been the signal for the more traditional types to start asking questions like "What happens next?" Jim Matheson came up with a column that opened with this:
You often get a second chance to make a first impression, but Edmonton Oilers goalie Nikolai Khabibulin is having a rough time of it.
That is most unintelligible sentence I've ever read. He not only mangles the common expression ("You never get a second chance to make a first impression") but I'm not sure what relationship the bit before the comma bears to the bit after it. It reads like something Steve Tambellini would say. He follows it up with something that I think has been the consensus amongst most people who've paid attention for at least a few months now:
There are clauses in standard players' contracts for conduct unbecoming to a team that theoretically could void a contract, although the Oilers weren't talking about that on Friday. They certainly aren't happy with Khabibulin's behaviour after he was pulled over in his black Ferrari Feb. 8 in Paradise Valley, a Scottsdale suburb. He faces jail time, possibly a fine and alcohol-related rehabilitation classes.


The agent doesn't believe a team would challenge the conduct clause over impaired driving. If a team did that, the NHL Players' Association would likely file a grievance.

He's quoting an anonymous agent there but the tenor seems to be that the contract probably can't be voided on morality grounds. I think that's probably right, although you never know. The column then proceeds to go back off the rails:

The long-time agent, who is also a lawyer, didn't know how a conviction would weigh on the goalie's ability to cross the border, for example, to perform his goaltending job. But Khabibulin is a professional athlete, who needs to travel from Canada to the U.S. regularly during the season. He would have good cause to need that to work.

"Usually in these situations there is a lot of bargaining that goes on," said the agent. "I don't know how it's going to work out, but the Americans are a lot stricter since 9/11."

There's a great scene in The Hangover where Zach Galafanakis is explaining that counting cards isn't illegal, it's just frowned upon, like masturbating on an airplane. When someone points out that that is also illegal, he replies "Sure, since 9/11. Fucking Bin Laden." The reference to 9/11 is somewhat relevant here, so it's not quite that bad, but it still misses a key issue: is the guy allowed in Canada anymore? Who knows. There's a lot to suggest that that's a real concern but the question apparently doesn't even come to Matheson's mind.

Robin Brownlee came up with this:

While some fans see this conviction as a loophole that might allow the Oilers to duck out of the lousy contract they signed Khabibulin to, that talk is opportunism at its lowest. Likewise, those mounting a convenient moral high horse are talking out their backsides.

Would fans in the weasel-out-of-the-deal camp be looking for the Oilers to dump the contracts of, say, Ales Hemsky or Taylor Hall, based on exactly the same circumstances and convictions?

Not a chance.

As I think I've made clear, I'm not really interested in the morality of Khabby's DUI. It was, as far as we know, a one time mistake that he made. I don't think it does or should render him unemployable. I'm not sure, however, that you can simply handwave away the possibility of taking the opportunity to get rid of him. As speeds pointed out (and Brownlee conceded) in the comments to the post, nobody questions whether it's fair to take advantage of the buyout provisions and get rid of someone like Robert Nilsson for 1/3 of the contract price. That's what his CBA and his deal provide for. If Khabibulin's deal has a similar out (something that remains to possibly be seen) and it's advantageous for the Oilers to get rid of him that way, it's hard to see how that's any different.

Brownlee, like John MacKinnon in a column that came later, draws a comparison between Khabibulin's situation and the recent incident in which the Edmonton Capitals' manager went on a fairly venemous tirade against a gay umpire. Brownlee says:
If Tambellini, who'll address the media Tuesday, and the Oilers want to get out in front of this, they should handle Khabibulin along the same tactful lines as they did in the incident in which Edmonton Capitals manager Brent Bowers spewed venom at gay umpire Bill Vanraaphorst.


If I was the Oilers, the next step would be to approach Khabibulin and see if he'd be willing to make amends beyond his jail sentence and show remorse, perhaps by speaking out against drunk driving.

That could be by making appearances on behalf of MADD or simply by taking on speaking engagements with fans or school-aged youngsters in the community. Like it or not, the actions, be they good or bad, of NHL players like Khabibulin carry a lot of weight with fans.

I can't say I know Khabibulin well and if he'd be comfortable with taking on something like that, but something along those lines would certainly be a way of mending fences -- like the Oilers did by having Vanraaphorst tell his story in Edmonton.

While I sort of see what Brownlee's driving at here, even if I don't agree, I'm also left with the impression that he sees some sort of moral equivalency between "being gay" and "driving with a BAC of 0.164." I assume that was unintentional but the parallel doesn't quite work. You need to compare Khabibulin to Bowers...who got fired.

John MacKinnon of the Edmonton Journal expresses himself a lot more explicitly. First, he correctly identifies Khabibulin as being in the role of Brent Bowers. Then, he proceeds to clearly state that bigoted remarks are more serious than driving with a BAC of 0.164:
Recently, the baseball Capitals dealt thoughtfully and skilfully with the issue of homophobia after then-manager Brent Bowers directed a vicious tirade at openly gay umpire Billy Van Raaphorst during a Golden Baseball League game in Fullerton, Calif., on July 31.

At the Oilers request, Van Raaphorst came to Edmonton, where he spoke about diversity issues with Katz Group employees, both baseball and hockey. Van Raaphorst met with the Capitals players, as well as a variety of diversity-focused community groups.

It was a productive first step in an in-house diversity program that Oilers president Patrick LaForge pledged the organization will undertake, in light of the since-dismissed Bowers's toxic behaviour.

Pending sentencing, of course, Khabibulin's DUI conviction does not seem to be that extreme. Thankfully, no one was hurt as a result of his driving his black Ferrari up to 112 km/h in a 64-km/h zone while having a blood-alcohol content of .164, more than twice the legal limit.

But in a sport that has lost the likes of Tim Horton, Pelle Lindbergh, Steve Chiasson and others to drunken driving, Khabibulin's indiscretion cannot merely be shrugged off.

Again, I don't really see Khabibulin's impaired as a morality issue - first time offender etc - and I wouldn't judge his character because of it. I am mystified though, as to how one can come to the conclusion that his DUI conviction is less extreme than calling someone a faggot and asking whether he enjoys certain sexual positions. Whatever you think of Bowers comments, nobody was put at risk of death because of them. I can't imagine the thought process by which you determine that the comments are the more extreme offence.

It remains a serious matter and unacceptable, obviously, and the Oilers have to be seen to be doing the right thing here.

This is a minor quibble, but I'd suggest that it would be better if they actually did the right thing, whatever that might be, regardless of perception. The rest of MacKinnon's column is a bunch of piffle about the Oilers' role in the community and how Khabibulin is a role model. That debate is nothing but cliches at this point but, reading it, I'm left feeling sort of sorry for MacKinnon that he's a middle aged man who believes that hockey teams have some mandate other than the satisfaction of the ego and financial interests of their owners. If Khabibulin does public service announcements about not drinking and driving (and frankly, if I was him, I'd refuse - I'm sure he feels he's endured more than enough public humiliation without appearing in some amateurish PSA), it will be because the Oilers calculate that it's in their interest that he does so, not because of the faith placed in them by young lads like John MacKinnon.

Finally David Staples of the Journal (does the Edmonton Sun even write about hockey anymore or do they just leave it to their Toronto writers to break Oiler stories?) also seems to have missed the point. He sort of muddles the moral question together with the question of what is best for the Oilers as a hockey team, abandons the second half of the question and then arrives here:
It's time for Khabibulin to change his thinking about drinking and driving. If he fails to do so, harsher penalties will be warranted. But I can't see how him losing his job right now for this drinking-related crime will help anyone: him, his family, his employer, his community or his league.
I pointed out that he's probably being paid about 400% of his value and, therefore, cutting him would certainly help his employer. As for him, his family, his community and the league, while I don't wish them ill, I don't think that his contract being terminated by the Oilers would really hurt any of them and I don't really care about those entities that much. David clarified in his own comments:
More than that, the Oilers already have a rep for bad and weird dealings, what with Comrie in 2003, then the Pronger and Heatley fiascos. They do not need a fight with the NHLPA, when a program is in place to deal with alochol abuse. The Oilers would likely be violating that league program by trying to terminate this deal.

It's certainly not in the spirit of that program, or consistent with humane treatment from an employer with a valued employee.

By failing to distinguish between the moral question ("Should the Oilers do something to help Khabibulin, if he needs help of some sort that he can't get on his own?") and the legal question ("Is there a way for the Oilers to get out of this asinine contract?"), David is able to completely dodge the second question. You can, of course, help Khabibulin get whatever help he might need (if he needs any) without paying him for the next three years.

In any event, David seems to have decided that Khabibulin has an alcohol abuse problem, which is a leap in logic all of its own. He also says that the Oilers would likely be violating the league's substance abuse program if they terminated Khabibulin's contract. Again, because he's merged the legal and moral questions, he's missed the fact that there are various scenarios: Khabibulin unable to play because he's in jail is not necessarily the same thing as Khabibulin unable to play because he has a booze problem.

With the punditry complete, the momentous day came. Unlike the 60-90 days predicted by some (on what basis, I have no idea), Khabibulin got the minimum sentence - thirty days in jail and various fines and counselling. There was a twist though, afterwards - his lawyer announced that he's filed a notice of appeal. This is, I think, the end of the game as far as voiding his contract goes. Appeals generally take some time to make their way through to a hearing - I have a follower on Twitter who does appellate work in California who'd be more familiar with American timelines than I am and he suggested that it wouldn't be unreasonable for this appeal not to be heard before April of next year. You can also abandon an appeal so, in Khabby's case, he could withdraw his appeal as soon as the Oilers' season is finished, in April. He would have to report to jail at that time.

The only realistic shot, as far as I can tell, was having him miss some time while he dealt with the fallout from this. If he can put an appeal into next summer, he can withdraw it then if he wants and serve his jail time in the summer. It's a tactical thing but it's well done. Provided he's available to the Oilers from the day training camp opens to the day that their season is done, they can't make the argument to terminate his deal on the basis of a failure to be available to them and they're left with the much more nebulous argument that he somehow tarnished the team's image. Predictably, Steve Tambellini offered a "No comment" when asked about attempting to void Khabibulin's deal that is a) likely to fuel speculation that the Oilers will attempt to do it, b) seemingly at odds with their contention that Khabibulin is the kind of goalie who is the best player on the team and c) if my California lawyer follower is accurate, probably a sure loser of a grievance if they do pursue it.

What we don't know, and we'll probably never know, is the extent to which the Oilers were serious about taking a run at him if they got the chance to do so. There are some indications at least that Khabibulin perceives that they were interested in doing so. Waiving the right to jury trial despite having previously indicated he wanted one when he couldn't have a jury trial before training camp suggests that. While I haven't seen the reasons of the judge from the trial yet, I've got my doubts that he's got any really solid grounds of appeal - unless the judge botched things, this was a pretty straightforward question of fact trial. One would think as well that, if he had to do 30 days in jail and he could either miss camp or risk not being available, however small that risk might be, during the season, that the Oilers would prefer he not appeal and risk serving his sentence in February or March.

In addition, and perhaps most curiously, it looks like something changed between Friday night and today. After the trial, the Oilers were speaking for Khabibulin. Today, Tambellini was expressing regret that he couldn't speak about the matter because it was on appeal. If the Oilers and Khabibulin were on the same page, one expects that the Oilers would have known he was considering an appeal and that they would have avoided comment. They look sort of foolish having said that Khabibulin recognizes the severity of what has transpired, and not just because of the awkward phrasing, given that he's now appealing.

In the end though, only one thing matters: Dan Tencer looks to have had it right all along. Nikolai Khabibulin will, barring any immigration problems, be at camp on September 17, just as Tencer told us he would.


You wonder if maybe, just maybe, this wasn't a statement that you tag the list of sponsors onto. Particularly when one of those sponsors is Molson.

I laughed my head off at this.

Unlike the 60-90 days predicted by some (on what basis, I have no idea)

I thought I had heard somewhere that the average sentence in Arizona for Extreme DUI was 63 days or some such thing. To be fair, Khabibulin is not an average criminal: I don't mean this because he's a rich athlete, but that this average is likely pushed up by repeat offenders or offenders with other charges against them, which would not apply in this case.

I'm not sure, however, that you can simply handwave away the possibility of taking the opportunity to get rid of him.

Why not? If you're a team that has significant issues when it comes to attracting players to come play for your team, I think going out of your way to nuke a guy you brought to Edmonton is probably the last thing in the world you want to do.

It's vitally important that we allow Khabibulin to be overpaid and injured so possible free agents are aware that if they commit any felonies we've got their back.

In fact, I heard it from a friend that Chris Pronger demanded a trade because he misunderstood one of the team rules and thought he wasn't allowed to continue running his counterfeiting operation. Hossa went to the Wings because he wouldn't be able to utilize child labour.

On a related note, I'm pretty sure I just got stuck on a list because I Googled 'counterfeit' to check my spelling.

Why is it always McLea?

He's like JF-Jacques to Tyler's Hemsky.

How much would Khabibulin make if he was thrown out on the market today?

If the Oiler void Khabibulin's contract, it could cost him millions. You think players just ignore stuff like that?

If you had options, would you work at a firm where the partners just tossed an associate under the bus? Would you work somewhere where the boss had just gone out of his way to blow up a subordinate?

You guys get that these guys are people, right? Like, human beings. Human beings that make huge bank and think a lot of themselves. People with options don't work places where they expect to be treated like shit.

The Oilers aren't winning anything the next two years anyway. I'm certainly not going to lose any sleep because Katz has to pay Khabibulin $10MM more than he's worth. It's not going to make a material difference whether Khabibulin is paid his contract or not. The Oilers will suck no matter what.


I too am glad that the Oilers will not have trouble attracting free agents who plan on missing camp due to doing time.

Now, if they could just attract the free agents who want to win, they might be onto something.

"In any event, David seems to have decided that Khabibulin has an alcohol abuse problem, which is a leap in logic all of its own."

Maybe. But being 37 years old and driving while inebriated at *twice the legal limit* is a pretty reasonable red flag for a drinking problem.

[Khabibulin] could withdraw his appeal as soon as the Oilers' season is finished.

Or, more likely, when his season is finished. Due to explosion of the back or something similarily debilitating.

So it's a leap in logic that Khabibulin has a problem with booze?

Perhaps you are right.

Of course, the NHL and NHLPA don't think so, which is why Khabibulin is mandated to see an addictions doctor.

The Arizona court will also mandate an alcohol program, I do believe, for this 37-year-old man (hardly a pimply kid or 20-something yob making this dangerous mistake here)

So Khabibulin's union and his employer see an addicitons issue here with this man and with alcohol.

But I'm sure they are wrong and you are right, Tyler.

These folks are making a highly improbable leap in logic to suggest he has any problem with booze. Right?

So Khabibulin's union and his employer see an addicitons issue here with this man and with alcohol.

From today's Journal.

"I have no idea if it was an isolated occurrence, though Tambellini said Tuesday he didn't think alcohol was an ongoing issue with Khabibulin."

Seems the GM doesn't think he has a problem. But I'm sure he is wrong and you are right, David.

Shitty arguments kinda suck, don't they?

"So Khabibulin's union and his employer see an addicitons issue here with this man and with alcohol."

What they see is the necessity to participate in rote theatre of ass-covering, the mouthing of the standard post-DUI boilerplate. It comfortably medicalizes the situation, presenting their boy as poor, sick man who "needs to get" (read: needs to go through the motions of getting) whatever can be passed off to the public as "help".

The contract issue, I would argue, rests entirely whether Khabibulin is able to show up to work, and provide the services he agreed to provide. If Khabibulin cannot show up for work, then clearly, the Oilers have grounds for voiding the contract.

And until Khabibulin doesn't show up for work, there is really nothing that the Oilers can say on the issue since it is a question that they shouldn't answer until it is not hypothetical.

does the Edmonton Sun even write about hockey anymore or do they just leave it to their Toronto writers to break Oiler stories?

I'm guessing they haven't figured out where Ctrl-C and Ctrl-V are on their keyboards yet.

"Seems the GM doesn't think he has a problem. But I'm sure he is wrong and you are right, David."

Good point. This raises a whole bunch of other questions in my mind...

After all, is this not the same GM that didn't think he was an injury risk? Not sure really sure Tambo's opinion--whatever it may be--means much when it comes to this goalie, since he probably still believes it was a totally awesome signing.

Still, I agree that it's fair to say we currently really don't know for sure whether Khabibulin is a bonafide alcoholic.

Brownlee's statement is so damned vacuous. Employment contracts for executives generally contain standard language allowing dismissal for a whole host of "crimes" such as refusing a lawful order or failing to pre-approve expenses. If these clauses were enforced every day, nobody would get any work done. They exist only as a reason to fire someone you want to get rid of for being a shitty performer.

When Al Capone needs to go to jail, what's wrong with looking at the tax code to do it?

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