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It all started with good intentions and then the lawyers got involved

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Almost every fan complaint about teams exploiting loopholes are really about waiver rules. Are they a good idea that went wrong?

Winnipeg Jets v Toronto Maple Leafs
Do you remember Petter Granberg?
Photo by Graig Abel/NHLI via Getty Images

A loophole lets you evade the purpose of a rule or law. It’s a sign of a poorly crafted rule which lets you get away with exactly what the rule was meant to prohibit. A lot of what we think of as loopholes in the rules of NHL roster making, particularly around injury reserve, are not that at all; rather, they’re unintended consequences of a system that is designed to achieve specific goals.

The Soshnikov Incident

This is only the most recent injured reserve roster shenanigan around these parts, and no, it’s not unique to the Maple Leafs. Toronto is just being much more blatant than other teams have been.

What the Leafs did was the following: With a few days of waiver exemption left this season, they sent Nikita Soshnikov to the AHL out of training camp. He stayed there until a clause was triggered in his contract that allowed him to go to the KHL if he wasn’t on the NHL roster. The Leafs called him up, played him in three games which exhausted his waiver exemption, and then sat him in the press box.

In December, they retroactively placed him on IR. This is a normal procedure done all the time. Until you need a spot on the 23-man roster, there is no requirement to put an injured player on IR. IR status does not affect the salary cap.

Soshnikov stayed on IR until he was sent to the AHL on a Long-Term Injury Conditioning Loan. He played in the AHL the maximum number of games allowed, including a three-in-three where he played every game, and he scored at his usual AHL pace.

He returned to the NHL, and the Maple Leafs elected to keep him on IR. They avoided having to remove someone else from the roster that way. They are also stretching credulity by claiming he’s not medically cleared to play after we all say him play at a high level for a week.

The Reasonable Explanation

The Maple Leafs didn’t really need to offer an explanation for their behaviour, although they said it was within the rules, because CapFriendly got there first:

This is all absolutely true, accurate and really beside the point. But it’s the explanation that everyone got, and the news cycle moved to the next outrage, and that’s that.

But Actually, It’s About IR Rules

The real issue here, the thing about the Soshnikov incident that sets it apart from the most recent precedents, is that even if you believe Soshnikov was injured badly enough to miss weeks of playing time, most reasonable people don’t believe he’s injured now. I don’t. I think claiming he’s not medically cleared is nonsense and, beyond any question of technical rule violations around what constitutes injured enough for IR, it makes the medical department of the Maple Leafs look untrustworthy.

(e) Any determination that a Player is eligible to be placed on the Injured Reserve List, or designated as Injured Non-Roster, shall be made by the Club’s physician in accordance with the Club’s medical standards and documented by a verification signed by the Club physician and countersigned by a Club executive in the forms attached to this Agreement as Exhibit 28 (which shall also be signed by the Player) and 28-A, respectively. Such forms must be received by Central Registry and sent to the NHLPA and the Player, all in accordance with Exhibit 3, prior to the Player being added to the Injured Reserve List or designated as Injured Non-Roster, as applicable.

(f) The Commissioner may take whatever steps he deems necessary to investigate the circumstances under which a Player is: (i) placed, or remains, on the Injured Reserve List, or (ii) designated Injured Non-Roster. If the Commissioner has reason to believe that the Injured Reserve List or Injured Non-Roster status has not been utilized properly by the involved Club or otherwise Circumvents any provision of this Agreement, or if he determines that the Club has used the Injured Reserve and/or Injured Non-Roster designations to evade the Active Roster limit, he may take such disciplinary action against the Club as he deems appropriate.

Article 16.11 CBA

It’s very obvious to even the casual observer that the use of IR to get around the 23-man limit is a loophole that is endemic in the NHL, and many reporters have stopped pretending a player needs to be hurt for real to end up on IR. There was speculation right out of training camp that the Leafs would deal with their roster crunch by putting someone on IR. Last year, Josh Leivo was on IR out of training camp for so long he needed a conditioning stint to get in game shape.

The problem with the league trying to toughen up the rules on IR is that it would be a lot of administrative work to question every assignment from 31 teams, and anyone who thinks it would be easy to define what injured enough for IR really means is fooling themselves. The league can’t even decide what injured enough for permanent LTIR really means, and that does affect the salary cap.

So it’s up to the league to decide if the Soshnikov incident is evading the Active Roster limit, and if this is a can of worms they want to open. But again, since this isn’t evading the salary cap, it seems unlikely they want to get a can opener.

The NHLPA could file a grievance if the player wants to, and Soshnikov has been reported via his agent to be totally on board with this business. The PA’s interest is in keeping players in the NHL where they get paid NHL salaries. They aren’t really in the business of complaining about whether a player is in the press box or not, and that leads me to the real underlying issue. It’s the waiver rules at fault here.

The Road To IR Hell Was Paved With Good Intentions

In the most recent CBA, the NHL and the NHLPA negotiated new waiver rules. They turfed entry waivers and refined the system of waiver exemption that allowed players to be moved freely between the NHL and the AHL in certain circumstances.

For most young players who come into the league out of junior hockey at 20, the typical case the CBA is designed to serve, they are waiver exempt for three seasons or almost two seasons’ worth of NHL games. The younger a player is when they turn pro, the longer that exemption lasts.

The purpose is to make the AHL a development league by making it safe for NHL teams to move young players up and down with no restrictions. This concept changes for players who come into the NHL as free agents after some pro years in Europe.

But even for someone like Miro Aaltonen, who has years of pro experience and is 24, he still has two seasons of waiver exemption or 60 NHL games played. He can be called up as part of his development and go back to the AHL if necessary. Nikita Soshnikov, also 24, ran out of exemption with 70 games played.

The second thing waivers are designed to do is keep players in the NHL. This is a win for the NHLPA, but it’s also something that serves league interests as well by increasing parity in the NHL. You can’t stockpile NHL-calibre players in the AHL as insurance against injuries just because you’ve got the cash to pay for them.

If you try that, some other team can claim your player when you have to put them through waivers to send them down. Waiver claims are not there for teams to get players for free, however; they are there to keep players on NHL rosters. The claiming team cannot send the player down without trying again at waivers, and the originating team can get the player back (and in some cases, then send them to the AHL). All of this is intended to prevent players from being stuck in the AHL unless they are either young and in development like Kasperi Kapanen or can pass through waivers easily like Garret Sparks out of training camp.

Intentions are great right up until the lawyers craft the rules, and then the savvy teams start stretching their limits.

Unintended Consequences

The unintended consequence of the waiver rules is an incentive to teams to keep their NHL-capable tweeners, their 13th forward and 7th defender, sitting on their butts in the press box and never playing hockey. They’re in the NHL, sure, but they never see NHL ice outside of practice.

Look up at Petter Granberg, and you’ll recall that he was injured out of training camp in 2015, and the Leafs had to hang onto him for a few weeks until they were permitted to put him through waivers. The Predators grabbed him, and he sat in their press box and played 37 games over two seasons with one conditioning stint in the AHL during that time. Sound familiar? Did you think only the Leafs did this? Did you think Frank Corrado was unique?

Eventually the Predators felt the risk of losing him had waned, and they waived him themselves. He looks like a career AHL defender now.

The system does work, eventually, usually. Players like Corrado, Seth Griffith, Jean-Francois Berube (40 starts over 3 seasons as a press boxed goalie who eventually went to the AHL), Peter Holland, etc. etc. usually end up in the AHL close to full time.

The risk to the team in waiving them is not the potential trade value of a depth tweener or number three goalie, rather it’s their value as a proven, experienced NHL fill-in. They are cheap insurance policies. And teams don’t have to care if they ever play or if their careers stagnate.

All of this leads a team like the Leafs, with a surplus of these players and the laser focus of the media on them to keep them from being anonymous (hashtags don’t actually help here), into pushing the IR rules to keep a roster in excess of 23 men in the NHL just in case they need them.

It’s Not Cap Circumvention, So Who Cares?

Leaving aside LTIR cases, which are a different beast, putting a player on IR, sending them on conditioning stints and giving them a permanent press box seat does not help a team’s salary cap situation any. In that sense, it’s not cheating in any way the league really cares about. But it seems like some uses of the legitimate and useful conditioning stint rules are okay with other GMs and some aren’t.

From 31 Thoughts yesterday:

14. As the website Cap Friendly pointed out, both Minnesota (Zach Parise) and New Jersey (Mirco Mueller) benefitted from players being allowed on injured reserve after appearing in AHL games. But there is something that makes people crazy about Lou Lamoriello doing it. With Parise/Mueller, not a peep. But Nikita Soshnikov? Wow, were teams upset.

“[Soshnikov] was running over people in the AHL yesterday!” one exec texted.

“Something”.

Yeah, I wonder what that is? Could it be the audacity of doing this two weeks before the roster limit is lifted? Could it be doing it over and over again? Or could it be that the unwritten rule in the NHL is that if you’re claiming a guy is hurt, you need to at least make an effort at plausible delivery of the story to the media? Even if many of the Leafs beat reporters very dutifully printed the helpful explanation that the Leafs weren’t violating the conditioning stint rules, you at least need the appearance of propriety.

But What Difference Does It Make, Really?

To the players sitting around for years growing the reputation as compliant — a thing that is both good and bad in professional sports — it’s a really bad deal, and yet they all believe they can hold down an NHL job. They don’t actually want to go to the AHL.

To the teams, it’s fantastic. They can have three (or more) guys on league minimum salaries fully ready to slot into their lineups and they don’t have to risk any injury in the AHL. Remember the Predators having to play the parking lot attendant at centre in the playoffs last year? If they’d kept a few more guys around on nacho patrol, they would have won the Cup. Or so you can tell yourself.

But as long as teams don’t push too far, the scrutiny of IR won’t ever be increased by the league and it’ll be business as usual. I’m guessing that’s a message teams might just be sending the the Leafs directly. Like I said, a reputation as compliant is both good and bad.