Lindros arbitrator 'making it up as I went along' Phil Weinberg, Philadelphia Flyers lawyer "Jay [Snider, Flyers president] or Russ [Farwell, Flyers GM], I don't recall which one it was, actually had left a message on my voice mail at home on the Saturday of the draft that something was going on up there [in Montreal] and I needed to get in touch with them. I picked up the voice mail and I called and spoke with I think it was Jay and he told me what had unfolded up there and an arbitration was going to be held. I think that they already knew that Larry Bertuzzi was going to be the arbitrator. "The arbitration was supposed to happen the next morning and I had to get up there ASAP. So I did. I flew up that evening around dinner time, around 6 or 7 p.m. Got up there 8 or 9. Had just sort of gotten to the hotel, went up to the suite of rooms where all our folks were and was getting myself up to speed and acclimated when my wife called me to tell me that her water broke and a friend of ours was going to run her over to the hospital. I said, 'I don't really know what's going on here. Let me see what I can find out and I will get back to you.' So I did; I learned I couldn't get out that night. In Montreal there's a noise regulation at the airport that shuts it down around 11 p.m. and our [team] plane was back in Philadelphia at that point. The first commercial flight out the next morning was 6:30 or 7 a.m. and I was on it. I went right to the hospital." Larry Bertuzzi, arbitrator "I show up in Montreal on Sunday morning, I'm introduced to all the parties. I make a few inquiries -- tell me everything that's on the books on how to deal with this matter. Tell me everything that's on the books about what makes a trade, how this dispute is to be resolved. Give me all the guidelines that are already in place. They handed me a two-line piece of paper. And it said -- I'll paraphrase it -- when there's a dispute involving whether or not a trade took place, the dispute shall be handled by the president of the League or at the consent of the parties by an arbitrator. Period. Full stop. That was it." Jay Snider, Philadelphia Flyers president "It was very hostile up there, because in essence Lindros was snubbing French Canada -- I couldn't find a law firm in Quebec to work for me. Not one. I went to probably five top firms and they all refused to take it." Neil Smith, New York Rangers general manager "It was like being in a real courtroom and Larry Bertuzzi was the judge. Quebec had their lawyers, Philadelphia had their lawyers and we had our one lawyer for us." Bertuzzi "There are three parties, there's about 12 lawyers and I look around and we have people representing legal jurisdictions of Ontario and Quebec in Canada, New York, Philadelphia and Illinois in the States. And I realize that there is absolutely no legal procedure which governs the proceedings. So I effectively put the challenge to the counsel and, 'I need you to tell me what the question is you want me to answer and how you're framing it and I want to see if the three parties can come up with a process by which we might get to the bottom of this.' They said, 'We're happy to do that.' I said, 'Great, we're going to step down for a couple of hours,' and the New York and Quebec people said, 'We're prepared to work on it and we'll send a draft to Philly.' This was Sunday afternoon." Snider "[Nordiques owner Marcel] Aubut brought in a major firm, and the head of the firm had been the ambassador to the United Nations, a member of the Royal Order of Canada. "[Chicago Blackhawks owner] Bill Wirtz lent us his attorney [Gene Gozdecki], who was there as an alternate governor for the Board of Governors meeting. He started the first day representing us in the first hearing." Weinberg "I was on a conference call [Sunday] morning in the delivery room. At one point I was talking with Jay, and this is my wife's vivid memory of this: I said, 'Jay, I can't really talk right now, the kid's about to come out of here, I'll call you back in 20 minutes.' She cursed at me and said, 'I only have 20 minutes to get this done?' But the birth went well. My daughter is now a junior at Colgate. "She gave birth at 1 in the afternoon and I was on a flight back to Montreal by 3 and was back there that night when the arbitration started." Bertuzzi "I get a call about 5 o'clock [Sunday] from Snider and Weinberg and I go down there and they said, 'We're going home.' I said, 'What? You're going home?' They said, 'Look at this piece of garbage that they gave us.' Sure enough Quebec and New York had written a very one-sided-looking document and Philly said, 'We're not taking this.' "I had breakfast with the NHL [Monday morning] and I said if they don't agree to me as arbitrator consensually, what are you going to do? Ziegler said, 'I'm going to appoint you so it's out of their hands.' I said, 'Fine, that's all the jurisdictional backing I need.' I went in at 9 o'clock and I said, 'Gentlemen I've given you six, seven, eight, nine hours to come up with a process. You failed miserably. Here's what we're going to do. We're going to adjourn for two hours and I'm going to write out the process myself. And I'm going to then hand it out to you and you have two choices: You can like it and we'll proceed or you can hate it and we'll proceed nonetheless.'" Smith "We wanted to find out what the truth was. If Philadelphia had made their deal before we did, then they should get Lindros. But if there was no deal with Philadelphia, then Quebec should be free to trade him where they want to, whether that was Philadelphia or us, but we knew that would be us." Snider "Bertuzzi said this is going to be kind of based on common sense and law and the NHL rules. It's based on an amalgam of law. Because in Quebec the law is a little different than the rest of Canada. It's like Louisiana in the U.S. -- it's more based on a French system. There's nuance. He just said it's not going to be based on one jurisdiction of law; it's going to be based on common sense in a way." Bertuzzi "The hearing went for five or six days: Monday, Tuesday, Wednesday, Thursday, Friday. It finished at about 6 a.m. Saturday morning. "I was making it up as I went along. And I had no one to consult. And it was highly secretive and it was both the most challenging thing I ever did and one of the loneliest legal things I ever did. I had an attaché from the League who became a good friend, Benny Eroclani. I had a security guy from the League who I spent all my off hours with. I wasn't lonely in that sense -- I had people to eat with. But from a pure running-the-case perspective, there was a room full of lawyers and a room full of executives and there was little old me at the front. I was in charge of making all the rules, but I was on my own." Russ Farwell, Philadelphia Flyers general manager "It was a real roller coaster. It was an up and down. Some days you felt like you really made headway and it had gone well, and some days you didn't." Snider "It was horrendous. It was one of the most stressful periods in my life." Bertuzzi "During those six days we had nothing but bumps and bruises along the way. We had objections and I'd say, 'What's your objection?' and they'd say, 'That's not the way we do it in Pennsylvania.' Someone else would say, 'That's not the way we do it in New York,' and someone else would say, 'That's the way we do it in Quebec, that's the way we do it in Illinois.' Back and forth, stuff like that. "We had a request to subpoena the Lindroses, except I had no subpoena power. I had to get on the phone with the Lindros' lawyer and negotiate their attendance. So when they showed up they had their own lawyer. We had to navigate the press every day. We had a press blackout, but since the NHL's annual meeting was on, maybe 20 of the press stayed all week and hung outside the room. "One time Russ Farwell tried jumping over the table to attack Marcel. He wasn't trying to attack him, but when I was looking one way, Marcel started speaking French to one of his lawyers from the stand, which is highly improper. And Russ noticed it and Russ got up and pretty well jumped over the table yelling at the guy." Farwell "They kind of talked things over in French sometimes and we had said in those hearings, once they started that wasn't ... we felt he was being coached there and so we objected. And we all objected because it happened a few times. I remember that was an issue at one point. Leaning over the table would be a better way to put it. We were on our feet. We got excited a few times." Bertuzzi "One of the key things was [the Flyers] related the conversations they had with Marcel. But they also portrayed that Marcel had said 'Nobody gets to talk to Eric until I get a deal.' And Marcel gave them Eric's phone number at a certain point to talk to the kid at his family's cottage and find out about his preparedness to come to Philly. On its face, that was a pretty good piece of evidence. If they were right that Marcel had set the threshold that you don't get his number until we've got a deal and he gave them the number, at one blush they must have made a deal. But Marcel's version of that was slightly different; he was giving them the number so they could sound out whether or not the kid was interested before they went any further. That was a big thrust of their case." Farwell "There was one key time, and Jay was on the stand, there was one stressful moment. Bertuzzi asked a question: 'Was it [the trade] contingent upon him agreeing to sign with the Flyers?' Our lawyer jumped up and asked for a recess right at that moment. Jay said, 'No, I can answer that,' and we sat back down and he answered the question, and I think that was the key moment in the process." Snider "We hadn't really prepared for it. It would have really thrown this into a gray area, because the worst thing for the NHL would be if this is contingent on us signing him, then it wasn't going to be a good thing. I didn't have to answer it and we hadn't really considered it, and then I do remember jumping in. I made an instantaneous decision and I said, 'No, it's not contingent on that.' ... "When you think about it, I just calculated everything within seconds, sitting there. How could we back off? After all this had happened, it's all in the paper that there's this arbitration. If all of a sudden we have this contingency, it's a mess. It's a mess because all the players' names [in the trade], if they hadn't leaked out, were going to leak out. To reverse all this, and to have to deal with it at the League level, at the team level, at the public level in Philly. All these calculations enter my mind sitting there like a calculator and I realize that there's no backing out. We're either doing this or we're not, and I made an instantaneous decision. I remember everybody's jaw just dropped -- my side, their side. The arbitrator's eyes were wide. It had sort of been a contingency along the way knowing they were difficult to deal with. And I just dropped the contingency on the spot." Weinberg "We were taking a bold step at that moment. If we won and weren't able to sign Lindros, if he did another maneuver like he had done with Quebec, then we were out players and draft picks. We took the risk of signing him at that moment on ourselves. Jay was committing at that point to what was clearly going to be an expensive proposition. Leaving aside whatever it was the deal was costing ... there was no way that we wouldn't have signed him given what we were giving up and the deal not being contingent on it." Snider "I remember on the last day, before final arguments, Phil said, 'I need to be alone.' Phil had to figure out basic law and he came up with the basic principle that the existence of a contract is from offer to counteroffer to acceptance. If you look at the decision, it came down to the fact that Aubut's call to me and giving me permission to talk to Lindros was the indication that a contract had been reached. At the very basis of it all, that's an accepted principle in law in all jurisdictions. It indicated that a valid agreement had been reached." Weinberg "What I was trying to argue was that’s what makes a contract. In the simplest terms a contract is formed when there's an offer and it's accepted. Acceptance can occur in a number of ways. It can occur in writing, it can occur through action -- in any way that the parties manifest that they have accepted the offer. That's sort of hornbook law about what makes a contract. There's a little bit of discrepancy in the law of the United States and the law of Canada as to how can that acceptance be manifested. In the United States, it has to be ... there's an objective theory of contract formation and a subjective theory of contract formation. The objective theory is, what would the outside person looking at things determine as to whether there had been an acceptance of an offer. And a subjective theory isn't so much what an outside observer would think, it's more what you think in your own mind, the accepting party, as to whether you've accepted the terms of the offer or not. The European common law that runs through Canadian jurisprudence a little bit more is this subjective theory. And the American theory is the objective theory. "What I was able to argue is that by all outward manifestations, Marcel Aubut, who was the person accepting our offer, indicated his consent, indicated his acceptance, because there was this term ... one of the things that happened in the arbitration was that we had wanted to talk to Lindros to see if he'd sign with us. And Aubut had said somewhere along the way that if he gave us the number then we had a deal. He did in fact give Jay the number at some point for Lindros so that we could talk to him and see if he would play in Philly. We used that fact. "What I was able to do was argue that Aubut in the Canadian way of thinking about contract formation, probably in his own mind, didn't even really know he had made a contract because it was more subjective to his own way of thinking. He, in his own head, was playing out this auction but holding back in his mind the ultimate assent to the offer, the ultimate agreement or acceptance. But that doesn't matter because the rule of law that should be applied is the objective theory. Any outsider, any third party, anybody looking at his conduct, would believe a contract would be formed because we can't go into the mind of somebody to really understand what they're thinking. Which is why we ascribe to this objective theory. Once he met the last term of our offer, which was, give us Lindros' number to see if he wants to play in Philly, then he had accepted all of the terms by an objective theory. It didn't really matter what he was thinking about anything. I think that's what I was really trying to stress." THE DECISION Bertuzzi "I phoned the NHL on Monday and told them I had my decision ready to go because I worked all day Sunday on it. They said, 'We don't want you to release it now; we want you to release it on national TV.' So we had this major extravaganza where at 9 o'clock I had a conference call involving all the clubs and read my decision. And then at 10 o'clock, on a conference call with more than 100 participants, I read the decision on national TV, on TSN and on the radio. And then we had this monster press conference." Smith "I know that there were some conspiracy theorists back then -- I'm not saying who but there were conspiracy theorists -- who theorized that because Gil Stein had once worked for Ed Snider that he convinced Larry Bertuzzi to find in his favor." Howard Eskin, WIP 610 AM radio host "It's the natural thought that the NHL is going to take care of the Rangers because they're in New York. You always have that defeatist attitude that thinks New York gets everything." Weinberg "I thought we were right. I thought we were a winner. But you never know. We started out as the stranger to the party. Everybody else there said they had a deal, not us. We come in as the outsider." Bertuzzi "The case turned on the following: If New York and Quebec agree they made a deal on the basis of the conduct they engaged in, then applying that same test to the Quebec-Philly discussions, they must have made a deal an hour earlier." Snider "I knew right before he said, 'I find Philadelphia and Quebec made a valid and enforceable trade.' There were a few paragraphs before that that I started to realize we were going to win. I'd have to reread it, but all of a sudden it dawned on me where he was leading. I thought, 'We got this thing.' I knew the arguments Phil had made about a valid deal, and as he started to go through all his thinking and it got closer, within a few paragraphs of him announcing, I knew we got it because he was going through Phil's arguments and he was following Phil's line of thought at that point in his reading. So I knew we had it. Then we erupted when he said it. "I had no idea that the entire staff was outside my office door listening. When they heard us cheer, then I heard the whole office cheer." Smith "When I was on the phone for the arbitration decision I was totally stunned when he declared the player was Philadelphia's player, based upon common practices in the NHL. I was totally stunned. He said his decision was based on his own findings and I had no way of knowing what his findings were, but his findings were that Quebec had made a legitimate trade with Philadelphia based upon the fact-finding he had done. I didn't see that or hadn't heard that in the hearing, but I'm not a legal guy writing down all the facts in the case." Jim Gregory, NHL vice president of hockey operations "I can't remember any negative feelings -- probably was just happy it was done and got finished." Farwell "I remember our staff a week or two after saying we announced that signing, we sold more season tickets than they did after they won the Stanley Cup."