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Eric Macramalla

TSN Legal Analyst

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TSN Senior Correspondent Rick Westhead has reported that former Los Angeles Kings forward Mike Richards has been charged with the unlawful possession of a controlled substance.

Richards was arrested when Canadian border guards found "some pills in a single bottle" during a random search of his car. According to Westhead's breaking report, it was small quantity intended for the hockey player's personal use.

That means Richards is looking at a simple possession charge rather than a charge for possession for the purpose of trafficking, which is a lot more serious. A trafficking charge means that a person was in possession of drugs for the purpose of selling or distributing. Richards is facing up to six months in prison and/or a $1,000 fine. Given the small amount, Richards is not going to jail assuming he's guilty of the offence (he may not be). Worst case scenario for Richards may include a fine and community service. 

The issue being raised now is whether being charged will hurt Richards' likelihood of success in connection with his grievance against the Kings for unlawfully terminating his contract. 

The short answer is no. Before criminal charges were filed against Richards, he stood a good chance of having an arbitrator overturn the termination of his contract. While Richards has now been criminally charged, nothing has changed as far as his chances of success. 

The Kings Terminated Richards' Contract

Earlier this summer, the Kings terminated the contract of the forward after the team learned he had been arrested  for the unlawful possession of a controlled substance. Richards had five years and $22 million remaining on his deal, which translated to a $5.75 million cap hit over each of the next five years. 

Initially, the Kings had decided to buy out Richards. That would have resulted in a fluctuating cap hit until 2024-25, peaking in 2018 and 2019 at $4.2 million. 

However, by terminating his deal, the Kings would enjoy substantial cap relief as the team would only be on the hook for a cap recapture penalty of $1.32 million over each of the next five years. And of course, the team won't have to pay Richards two-thirds of his salary, which amounts to $14.5 million.

Kings facing A Challenging Case

Why the uphill battle for the Kings? 

The reason is the NHL/NHLPA Substance Abuse and Behavioral Health Program Policy.

This Drug Policy sets out specific drug treatment protocols that must be followed in the case of an arrest or conviction related to drugs. Since it was collectively bargained between the Union and the NHL, adhering to the Drug Policy is not optional for teams; rather, it's mandatory. A team cannot simply elect to ignore the collectively bargained terms for the sake of convenience. The whole idea behind the Drug Policy is to get players the help they need. The focus of the Drug Policy is ultimately rehabilitative and not punitive.

The Drug Policy provides that any player arrested on drug charges is required to submit to a substance abuse evaluation and other treatment deemed appropriate by doctors. If the doctors determine that treatment is required, the player will be placed into Stage 1 of the alcohol or drug program. Stage 1 calls for "inpatient treatment," although the player continues to get paid.

If a player is convicted of a controlled substance offense (including under a plea arrangement), he is placed into Stage 2 of the drug program. As part of Stage 2, the player is suspended without pay during his treatment and can be reinstated by the league should doctors recommend it.

The most severe discipline called for under the Drug Policy for repeated rehab failures is a one-year suspension without pay with reinstatement at the discretion of the league. 

So the Drug Policy does not call for the termination of a player's contract in the event of an arrest or conviction related to drugs. It calls for a lot less.

This all means that if a player is picked up on a drug charge, the collectively bargained Drug Policy is triggered together with its treatment protocols.

Richards Never Told Us He Was Arrested

The Kings may not argue it terminated the deal because Richards was arrested on possession since the Drug Policy clearly governs these types of cases. The Kings, however, may take the position that the team terminated Richards' deal because he failed to advise the team he had been arrested. 

So it is possible that the Kings may seek to distinguish between (i) termination for being arrested for possession, and (ii) termination for failing to advise of the arrest.

Will that argument fly? It will be a tough one since it would mean concluding the Drug Policy does not apply. That being said, if you're the Kings, it's worth a shot. 

NHLPA Argument

The NHLPA will likely frame Richards' termination as a transparent attempt to create cap room for a team desperately in need of it. Richards is no longer seen as a useful player by the Kings and terminating his deal helps the team get that much needed cap relief.

From the NHLPA's standpoint, it could not allow this precedent to go unchallenged. If the termination were allowed to stand, it could undermine the strength of guaranteed contracts, which in turn could adversely impact the rights of players. So this is a very important case for all NHL hockey players and not just Richards. 

Gary Bettman Will Not Be The Arbitrator

Paragraph 17.5 calls for an impartial arbitrator, which means Commissioner Gary Bettman will not hear this case.

Timing

A grievance can take over two months to get resolved. That would take Richards into the regular season without a resolution. For that reason, the NHLPA has invoked Article 17.17 of the CBA and requested an expedited hearing to trim the timeline.

So we should know soon enough if the termination of Richards' contract will stand.