CHICAGO - MAY 28: National Hockey League Commissioner Gary Bettman speaks at a press conference at the United Center on May 28, 2010 in Chicago, Illinois. (Photo by Jonathan Daniel/Getty Images)
The NHL is assuredly going to permit the Atlanta Thrashers to relocate to Winnipeg. But, according to the league's own bylaws, is such a move allowed?
I know it sounds elementary. And I'm sure that people've looked at them before. But really - has anyone actually legitimately read the NHL bylaws? And by read, I don't mean selected the section on relocation that proves your point. I mean sat down and read section 36, which pertains to the sale and relocation of a franchise; have people done it?
Other than our Atlanta Hawks editor Phil Foley (also of the Examiner.com), I'm starting to think that signs point to no. After hearing the absurd rumor that the NHL offered the Atlanta Spirit Group $20 million of their own relocation fee (which negates the previous rumor that the NHL was trying to jack up the fee out of the ASG's profits), I had to sit down and really, really study the section on relocation, like I was back in my Consitiutional Law class in college.
Just like any document, legal or not, things become clearer when you actually read them. Section 36 is about a hundred times easier to understand than any bill passed in Congress. In fact, it reads like those sample legal documents you get in a high school government class. It's also up to interpretation, much like the Constitution. Now, before you go all strict or loose constructionist on me, this interpretation doesn't necessarily involve that much thought.
Let's look at these by-laws, as they apply to the Board of Governors, and see if we can interpret them in favor of the Thrashers. It's surprisingly easy.
(a) Any Member Club seeking consent for a transfer of its franchise and club to a different city or borough in accordance with Section 4.2 of the Constitution, shall file a written application for such consent with the Commissioner of the League.
(b) Such applications shall be filed no later than January 1st of the year prior to the year in which it is proposed the Club will commence its first season in the new location, unless a majority of the Member Clubs consents to a later filing date.
(c) The application shall include a statement as to why the applicant seeks such transfer. It shall also include a statement of reasons why the applicant believes consent to the proposed transfer should be given and shall be accompanied by such documentation as the applicant deems appropriate, in light of the provisions of this By-Law Section 36 and Section 42 of the Constitution.
Ok, maybe an owner will have a problem with the lateness of the filing - the BOG meeting happens right before the draft. This still could be ok'd by the BOG at that very meeting though, and then tabled for discussion and a vote that same session, so it's not really a way for the Thrashers to get out of moving.
Now, skipping ahead to section 36.5 - how to determine the consent of the sale. This is the stuff that matters.
36.5. In determining whether to consent to the transfer of a Member Club's franchise to a different city or borough persuant to Section 4.2 of the Constitution, each Member Club shall be guided by the following considerations:
(a) Whether the Club in question is financially viable in its present location and, if not, whether there is a reasonable prospect, based on any of the considerations set forth in subsections (b) through (j) below, or for any other reason, that it could become financially viable there, either under its present ownership or under new ownership.
Big question here is not if the Thrashers have made money, but whether can they make money? We're in the city in the Southeast with the largest population, the 8th largest TV viewing area in the US, and there are 5.5 million people in the metro area. How could anyone state that the team can't become financially viable under new ownership that correctly runs the franchise? It's fairly obvious that under a decent business plan the team has a very solid chance of being viable.
(b) The extent to which the fans have historically supported the Club in its present location
(c) The extent to which the Club has historically operated profitably or at a loss in its present location.
A significant portion of this being negative could be attributed to ASG. Also, if you look at pre-lockout and playoff season numbers, you see a potential for a successful franchise with strong fan support. This can go either way.
(d) Whether the present owner of the Club has made a good faith effort to find prospective purchases who are prepared to continue operating the Club in its present location and/or has engaged in good faith negotiations with such prospective purchasers.
Seriously? Good faith? If Anson Carter is to be believed, they turned down his bid with no good-faith exploration of the offer. The ASG doesn't know the concept of good faith.
(e) Whether there is any prospective purchaser of the Club and franchise who is prepared to continue operating the Club in its present location and, if so, whether any such prospective purchaser is willing and able, if necessary, to sustain losses during at least the initial years of its operation there.
No one knows, because no news that's believable is leaking out. I wouldn't be hugely shocked if there were, though.
(f) The extent to which the Club might be operated in its present location in a more prudent, effecient, and/or cost-effective manner than it has been in the past.
Is the Pope Catholic? The crux of the problems this franchise has faced originates with the current ownership group. Anyone could run the team more efficiently than the Atlanta Spirit Group.
(g) The extent to which there is a reasonable prospect that significant additional revenues may become available to the Club within a reasonable time in its present location, either from the sale of media rights or from other sources.
Atlanta's got corporate sponsorship. You don't think that the sponsors'll come back when the ASG are gone? Close your eyes and remember pre-lockout hockey. Remember the bobbleheads? Remember the rally towels and the team posters? When did that go away - oh, right. When ASG bought the team. Sponsors want to work only with intelligent, reasonable ownership.
Going to snip (h), (i), (j), and (k), because government reducing operating costs and the adequacy of the arena aren't really pertinent issues to what's going on here.
(l) The extent to which it appears likely, based on population, demographics, and interest in hockey in the area of the proposed new location, or based on any other relevant facts, that support for a franchise there will be sufficient to make the franchise financially viable in the proposed new location on a continuing basis.
Ok, the interest in hockey is there. But is the money there to sell out an arena almost 3,000 seats smaller than Philips Arena nightly at increased ticket prices? Because that's the way this team'll be consistently profitable in Winnipeg. Can that happen? It's a very legit question.
(m) The extent to which the owners of the Club are willing and able, if necessary, to sustain losses during at least the initial uyears of its operation in the proposed new location.
Ok, True North's perfectly a-ok here.
(n) The extent to which consent to the proposed transfer is likely to damage the image of the League as a major sports league, be a disincentive to participation in the League, or otherwise to have an adverse effect on the League's ability to market and promote the League hockey in the United States and/or Canada.
So, moving out of Atlanta isn't going to damage the League's image? A huge metro area with tons of local businesses? Oh, and a regional Comcast HQ? The removal of a huge market from the NHL's sponsorship base is very unappealing. Of course, this is just based on the proposed transfer, not the actions (or lack therof) of the League and the ownership group in this situation, so comments on their conduct are irrelevant.
(o) The extent to which the proposed transfer would adverseley affect traditional rivalries that have been established between the Club in its present location and other Member Clubs.
I'm sure that Tampa'll miss beating us every year,
(p) The extent to which consent to the proposed transfer would result in the absence of a League franchise in a major market.
How much more major could Atlanta possibly be? Huge broadcast area, population of five and a half million in the metro area, home to companies like Coca Cola and Home Depot who sponsor other teams as well? Home to the three other major sports leagues? This isn't the 1940s anymore. Atlanta's kind of large.
(q) has been omitted because let's face it - in Canada, the promise of another Canadian club visiting's more alluring than Atlanta.
(r) The extent to which the proposed transfer would present particular disadvantages for the operation of the League, such as travel or scheduling difficulties or a need for divisional realignment.
This one, forget just divisional realignment. It's conference realignment. You're moving a team from the Eastern Conference to the Western Conference, and the move might happen so quickly that a team from Winnipeg will be playing six games a year with a team from Miami. What? No, no inconvenience at all. As a matter of fact, they travel like that all the time in the NHL. It's called the Western Conference.
(s) The extent to which the Club has, directly or indirectly, recieved public financial support in its present location by virtue of any publicly financed arena, special tax treatment, or any other form of public financial support.
Well, if this one clause's been good enough for Phoenix, what about all the other ones for Atlanta?
(t)The extent to which the proposed transfer, if approved, would affect any contract or agreement in effect between the Club and any public or private party.
Open to interpretation. Could this mean Philips? Could this mean the sponsorships of mite hockey? Who knows.
(u) The extent to which League consent to the proposed transfer might expose the League to liability to any third party for breach of Contract, interference with contractual relations, or for any other cause.
Again, very open to interpretation, but perhaps Comcast might be upset by losing such a large market?
(v) the extent to which the ownership or management of the Club has contributed to any circumstances which might otherwise demonstrate a need to transfer the Club to a new location.
Well, gosh. I could not think of one instance where the Atlanta Spirit Group's mismanagement's contributed to the possible move of the team... could you?
(w) The extent to which the Club has engaged in good faith negotiations with representitives of the community in which it is presently located concerning terms and conditions under which the Club would continue to operate in that location.
Yep. Everyone in Atlanta know all about ASG's terms and conditions regarding negotiating in good faith, right?
(x) Any other consideration relevant to whether it would be in the best interest of the League to consent to the proposed transfer.
Well, i think that more often than not, the by-laws have shown why keeping the NHL in Atlanta isn't just the smart thing to do, it's also the legal thing to do. Now, the trick is that the Board of Governors has to understand these points, and they have to be willing to admit the dirty dealings of an ownership group that they vetted. If they read and understand the by-laws, I don't think it'd be much of an issue.
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