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If You’re Reading This, It’s Too Late: Jesper Bratt & New Jersey Devils are Now in an Arbitration Hearing

If you are reading this post, then it means the New Jersey Devils and Jesper Bratt did not come to terms with a contract and their scheduled arbitration hearing is happening. This post goes over what is involved in the hearing and what could happen next.

New Jersey Devils v Washington Capitals
I have the same facial expression, Jesper.
Photo by Scott Taetsch/Getty Images

10:35 AM ET UPDATE: If you are reading this update, then a new development has happened that makes the following post no longer relevant. The New Jersey Devils announced at 9:54 AM ET, 52 minutes after this post went up, that the team and Jesper Bratt agreed to a one season contract worth $5.45 million and there will be no arbitration hearing. My reaction to that news is in this post, discussing what it means and what is now next for the Devils. I am very happy that this post aged like milk in the Summer Sun; avoiding an arbitration hearing is very good news. For the sake of posterity, the post will be kept as-is in the archives, but with locked comments and moved off the front page.

If you are reading this post, then it means the New Jersey Devils and restricted free agent Jesper Bratt are currently in an arbitration hearing. To remind you, that would be Jesper Bratt, arguably the team’s best player last season. Per the NHL Contract Bargaining Agreement, all arbitration hearings are at 9 AM ET unless otherwise agreed to by the league and union. And it was confirmed that this hearing is indeed at 9 AM ET. Bratt’s hearing was scheduled for August 3. That is today. It is past 9 AM ET. Short of some crazy, unheard of surprise, it is happening if you are reading this.

This arbitration hearing was filed by Bratt and his representation. This is a common action by RFAs who are eligible for arbitration. While the team can keep a player’s rights with a qualifying offer (which the Devils did issue), an arbitration hearing can force negotiations to go more quickly. Or at least before a scheduled hearing actually happens. This is now moot as, if you are reading this, the arbitration hearing is happening.

Section 12 of the NHL CBA - available here by the NHLPA - covers all of the requirements that go into an arbitration hearing from filing to scheduling to what is and is not allowed in the hearing to the actual results. Here are the highlights from Section 12 to get a sense of what is happening:

  • Both the player and team have to file claims ahead of the arbitration hearing. Elliotte Friedman broke this news on Monday. The Devils’ claim is $4.15 million. Bratt’s claim is $6.5 million.
  • The claims from each side are filed as briefs, with evidence and comparables to justify each argument. The general process (you can read Section 12.9 for all of the procedural details) is going to be that each side will argue their case, the other side will get a chance to provide a rebuttal, and then when all is completed, the arbitrator will then make a determination on what the next contract will be. Per 12.9(k), unless the arbitrator wants a different format, Bratt and his side will go first; then the Devils; then Bratt and his side will provide a rebuttal and closing argument; then the Devils will do the same; and then it is up to the arbitrator.
  • As Bratt filed for arbitration, the Devils will elect whether the arbitration award will be for a one season or two season contract. If the Devils did not elect anything, then it is a one season contract.
  • Evidence must be provided to the brief and there are limitations to what can be used. I will try to spell it out from 12.9(g) as it is important to know.
  • Can Use: Overall performance as defined by NHL official statistics; games played, games out injured or ill; length of service with the team and/or NHL; overall contribution of the player; “any special qualities of leadership or public appeal not inconsistent with the fulfillment” of their responsibilities to the team; any comparable players and their performances; and the compensation of any comparable players.
  • Cannot Use: Any contracts from a non Group 2 player, UFA, or a player not being offered as a comparable; qualifying offers; any past negotiations or offers; any “testimonials, videotapes, newspaper columns, press game reports, or similar materials;” the financial situation of the NHL or teams; any reference to walk-away rights; and any arbitration awards from 2005-06 or earlier.
  • The arbitration decision must be issued to both parties within 48 hours of the close of the hearing. At the latest, we will know the results by August 5.
  • The decision will determine the length of the contract, the NHL and minor league salaries, and a brief statement for the reasons for the decision. Unless I’m misreading 12.9(n), there are no signing bonuses or other clauses issued in the contract decided by the arbitrator.
  • Neither the Devils or Bratt can publicize the arbitration process until the decision is issued.
  • Since Bratt elected for arbitration and the filings are over $3.5 million, then the Devils could decide to walk away from the award within 48 hours after the decision is issued by the arbitration. If the Devils walk away, then Bratt immediately becomes a UFA and can sign with whomever he wants for however much he wants.
  • And here is an important wrinkle from the Memorandum of Understanding that was signed in 2020 that extended the NHL CBA (also at the NHLPA’s website): Once the arbitration hearing begins, then no further negotiations can be made. Prior to 2020, a team and player could still negotiate a contract as the hearing is ongoing. That cannot happen now. Those filings go from being numbers for a game of chicken to cases each side will argue for.

There is more to it than that regarding the proceedings and other clauses, but those are the main points to know. Due to that last one, this means that there are two possible outcomes from the hearing itself:

  1. Arbitrator issues a decision, the Devils accept it, and Bratt is a Devil for a salary between $4.15 million and $6.5 million.
  2. Arbitrator issues a decision, the Devils walk away from it, and Bratt is now a UFA.

However, the reality is that arbitration hearings are often damaging to the relationship between the player and the team. It is common for one or both sides to come out of the hearing more unhappy than before and that leads to the player being traded away. It is easy for you and I to be objective about it.

But you and I are not in the room (or on a remote call) hearing directly what your team really thinks of you and why you really do not deserve to get paid that much. The Devils are not going to argue anything about a long term deal or how much they love Bratt. They are going to argue why he’s worth a $4.15 million contract. Bratt and his representation are going to argue why he’s worth a $6.5 million contract. Both sides are going to get a chance to counter why the other side is wrong in their assessment. There’s not going to be a sudden turnaround in the hearing from either side. Per the CBA, they have to make an “affirmative case,” which I interpret as that they have to argue for what they filed.

This is often contentious as both sides are arguing at odds with one another. The goal is not to come to terms; the goal is to convince the arbitrator to rule more in their favor. The arguments are often cold and callous as a result. The mental preparation is often not enough to hear the cold, callous arguments from either side. Even if the award is favorable for the player, the damage is done from the arguments by the team about a lesser deal. Often, the player and/or management is more unhappy after the hearing than before. Who wants an unhappy player in the locker room before training camp and the regular season? Who believes an unhappy management will put up with a player, especially if they lost the arbitration? Who thinks an unhappy player is going to have a great season and then sort out a longer deal later with management that no longer likes the player?

As a result, it is very common that the arbitration hearing ends with some kind of move. Either the player bolts as a UFA as soon as possible or a trade is made because of that. This has happened with the Devils in the past. This has happened with other players. Just ask Tomas Tatar. This third possibility is quite real. Therefore, there is legitimate reason to be concerned about Bratt’s future in New Jersey now that this arbitration hearing is happening.

(I will point out that the damage done may not be permanent. For exmaple: Bobby Holik, Scott Gomez, and Claude Lemieux were all unhappy after their arbitration hearings and either moved on when they could or got traded away. They all returned to the organization in the future. Time and experience can heal wounds. But not immediately.)

Short of a miracle of Bratt being so objective about his career that he’s willing to let whatever is said in the hearing go by, Bratt’s future in New Jersey is highly questionable. Given that the Devils do not have another player of Jesper Bratt’s quality yet ready to emerge at wing, that this hearing is taking place is bad news. (No, Ondrej Palat is not it.) The team will likely be worse for it even if Bratt does not repeat his 2021-22 campaign immediately in 2022-23. Which he likely will not if he takes the award and has a legitimate beef with management from the hearing.

Who can you blame? It depends on how you view it. Sure, you can blame Bratt and his agent, Joakim Persson. Maybe they have been difficult. Maybe not. A quick glance at PuckPedia does not reveal a long client list for Persson or anyone that went to an arbitration hearing recently unless I am forgetting someone. Plus, I am not sure why I should be displeased with Bratt wanting to get paid real well for the awesome season he had in spite of how bad the Devils were last season. This is a sport where one bad accident can alter or end a career. I cannot fault Bratt or Persson, whose job is literally to get the best deal for his clients, to demand value for their services. That stated, there is a fine line between working for the best deal and demanding too much. I cannot discount the possibility that the latter was happening with respect to a long term deal.

However, it takes two to tango and so some blame can also go to Fitzgerald and management. That their filings are over $2 million apart implies they have been far apart. Even if it was theater on Monday, it is now reality today. I’m sure the Devils offered a more lucrative long-term deal. Given that this hearing is taking place, that deal was clearly not good enough. And the team did not add another scoring winger similar to Bratt’s talents so they put themselves in a position of signing him or risk losing him. Essentially playing “chicken” with a guy who just put up 73 points in 76 games last season despite a team with a terrible power play and terrible results is not a constructive choice (or look to the rest of the NHL). Bratt and Persson filed this hearing to make something happen and Fitzgerald and his staff did not happen. Whether they could not or would not or should not is beside the point. The team is not completely innocent for this hearing happening at all.

Absent of being in the negotiations between the two sides myself, I have to presume the truth is somewhere in the middle and so everyone has to share some blame. After all, that this hearing is taking place at all is the worst case scenario for both sides. Bratt is not going to get paid as much as he could have obtained; the Devils are not able to lock him up to what they want; and the hearing will end up with a short contract and a high likelihood that Bratt will not be a Devil for long. And so the blame game is just lame. It does not matter. If you are reading this, it is already too late.

All we can do now is wait until the hearing over, the decision from the arbitrator is announced, and we see what happens next for Jesper Bratt and the New Jersey Devils organization.