Thanks again to the panel at the Make it Seven roundtable rant page for digging deep. Patrick Romanoski, Gregory Galante, Jay Martin, Joe Smith, Bryan Kirkham,Ken Connolly, Corey Schlueter, Aaron Mernick, Wade Tiefenbach, Jennifer Zarull, and if I have missed anybody, don’t worry , it won’t be because I wanted to, but I will find you! Insight abounds, and is making this summary very easy indeed.
Have you ever had a chance to play the ‘Lemmings’ computer game? I remember one Christmas, they had a version on the internet with little Santa Lemmings, all decked out. You had to build certain paths that kept them safe, and if you didn’t, they didn’t have enough sense to save themselves. Set them on the wrong path, and they’d fall off the edge of a cliff, one after the other, with no ability or concern for trying to find a solution on their own.
To me, the National Hockey League, it’s executive, and employees responsible for trying to stop Jim Balsillie, are acting like those Lemmings. No matter what happens, they continue on the path over the virtual cliff, with no apparent consideration for the ridiculouslness of their own actions. With no apparent concern for the ramifications or long term consequences of what lies ahead.
And, with the changing of the guard in the NHLPA, the writing is becoming even more quickly apparent. There is a mutiny on the bounty in the works.
Can we figure the Lemmings will figure that out? Or, are they headed for the cliff with the same speed as ever?
Part of the problem with the NHL head office, is the arrogant attitude that self policing has earned them. They like to not be told what to do, and they intend on keeping it that way.
Well again, the people ‘they’ serve, the players and the fans are starting to voice an undying opinion that ‘we aren’t going to take it anymore’.
There is a mutiny in the works. Can anybody see it?
Let’s begin with material readily available for fan and player consumption. The depositions of Bill Daly, Gary Bettman, and Craig Leipold.
To start, Mr. Daly…
In deposition, Bill Daly had made a very confident statement regarding his comments made on May 7th, 2009:
Reiterated comment from Daly of May 7th :
“Mr. Balsillie is acting again in total disregard of any rules or any structure, I’d be very surprised if the Board would look favorably on the way that Mr. Balsillie has conducted himself in this instance.”
Question from counsel: “Did you make that statement?”
Daly: “Yes, I did.”
And, another quote that Bill Daly had made:
“He makes his own decisions. And he’s making a decision that this is the way he wants to get into the National Hockey League. We don’t usually like to pick fights, but we end them.”
Now, the obvious question to Mr. Daly is, ‘how would you propose to end this fight?’
Let us guess.
You would, as league officials do ANYTHING necessary to end this fight?
After all, Jim Balsillie has decided how he is going to enter the National Hockey League, and Mr. Daly is of obvious opinion that Mr. Balsillie does not have the right to exercise his rights to use legal processes to do just that.
Would that be accurate?
It might even give league officials enough willpower to decide to structure ‘an attack’ to counter this man who does not listen to the league and it’s rules.
Would there be motive to alter and withhold information to suit the needs of a league desperate to stop a man with strong will?
The deposition of Bill Daly continued…..
Q from counsel: “Mr. Daly, are you familiar or did you see the various Kroll Reports that were prepared on Mr. Balsillie?”
Daly: “I’m familiar with them.”
Q: “Have you seen them?”
Daly: “I’ve seen them physically, but I can’t tell you – other than potentially skimming them, I didn’t read them in any great detail.”
Q: “Do you know why there are different versions of the report prepared, one on June 15th, which was of James Balsillie and Heidi Balsillie, and then one on July 23rd, which is just of James Balsillie, and yet another on of July 21st, which was a separate memorandum to Mr. Zimmerman? Do you have understanding of why there are different versions floating around?”
Q: “Were you involved in any discussions about taking materials in the Kroll Report out or including some materials in the Kroll Report?”
Q: “Do you know why the Kroll Reports were not given to the executive committee or to the Board of Governors before making their decision?”
The document cuts off before we get Mr. Daly’s answer. How appropriate that mishap is. What do you suppose his answer was? Tough one?
Anyhow, May 7th and already directing a bias toward the Board of Governors. Perhaps enough of a bias to ensure the Board members are not given a clear, unbiased amount of information to make a good decision on Mr. Balsillie?
I think Mr. Daly had better take a very important fact into consideration. It isn’t his hide on the line should the Board members be held accountable as directors and league authorities. It is the directors. Nice to be making decisions for them, if that is the case.
On to Mr. Bettman……
In his deposition, Gary Bettman starts to wash his hands. This should be a huge red flag to the Board of Governors, and I will explain more as we go along.
As an employee of the National Hockey League, Gary Bettman reports to the Board of Governors. The problem with any leader reporting to the Board, is the fact that Board Members tend to take the direction of the leader (commissioner in this case), and don’t necessarily ensure they understand all the liability and problems that they, not the commissioner is going to be held accountable for.
So, for Gary Bettman to advise the court what comes next is a key warning to those Board members that you had better obtain good counsel of your own, or it’s their (Board members) collective and individual hides on the line.
On to the point.
In the deposition, Gary Bettman discussed article 4:
Q: “Is it correct that any ammendment of article 4 has to be evidenced by an instrument in writing signed by all members of the league?”
Bettman: “Not necessarily”
Q: “Not necessarily. And why would that be?”
Bettman: “Well, there are a couple of reasons. One, when you’re referring to article 4 of the constitution, it needs to be reconciled with bylaw 36; and secondly, I have on repeated occasions advised the Board that there’s an aspect of article 4 of the consitution which is unenforceable and will not be applied.“
Is Gary Bettman saying his only obligation is to advise the perhaps stubborn Board members that there are aspects of the constitution that are unenforceable? Is this a ‘washing of his hands’ and responsibility? Would Gary Bettman be better advised to inform the Board that in the current form the constitution is flawed and creates a great potential liability to the members of the Board?
Gary Bettman was under oath. He likely knew there were questions and a line of questioning that would implicate him responsible. What does he choose to do? He washes his hands and defers responsibility to the Board he serves. Board of Directors, this is your wake up call.
When asked if he as commissioner had the right to interpret the league rules and establish policies regarding the constitution and bylaws, and that he (Commissioner) had the right to change provisions of the constitution by his (Bettman’s) interpretation, Bettman said:
“If they need to be reconciled either with other documents, resolutions and applicable law, yes.”
I wonder if that law would include the Competition Act of Canada?
So, is Gary Bettman saying he as commissioner has the right to change aspects of the constitution as required by applicable law, in this case the Competition Act of Canada? I would think so.
Regarding article 4.3, the counsel asked a specific question:
“I’m asking you a very narrow question. Has there ever been a written ammendment to that provision of the constitution signed by all members of the league?”
Bettman: “I don’t believe so, but that shouldn’t matter because I’ve advised the board-”
Bettman: “- on repeated occasions that we are not enforcing that provision, and there hasn’t been any objection to that, and in fact, the competition bureau in Canada has affirmed our policy and practice in that regard.”
“There hasn’t been an objection to that”? What about the letter from the Toronto Maple Leafs hand delivered to the office of the National Hockey league in 2006? Was this part of the information given to the Competition Bureau in Canada? Somehow, I think not.
So, Mr. Bettman in 2009 states that there was no objection, but clearly the Toronto Maple Leafs did object.
As pointed out by Patrick Romanoski, methinks we have a problem here. Would this be lying under oath?
Would this include withholding material evidence from the Competition Board of Canada?
I think we leave it for now on those valid issues. We will continue next time with more Gary Bettman deposition analysis, and for Craig Leipold.
The NHLPA got a fresh leader, eh?
Well, I must make a final comment to Mr. Bill Daly. Bill, you as a league know how to end a fight?
I don’t think you will be able to ‘end’ this one.