By: Alex Dourian
On March 7, 2021, Buffalo Sabres star forward Jack Eichel suffered a herniated disc in his neck as a result of a collision during a game. Since then, Eichel and the team have been unable to agree on a medical treatment to repair the disc. Initially, team doctors wanted Eichel to rehab without surgery. Once surgery became a necessity, however, the parties could not agree on a procedure—the team wanted Eichel to receive a disc fusion, whereas Eichel believes an artificial disc replacement would heal quicker and prevent health issues later on in life. The team is wary of the disc replacement because it has never been performed on a National Hockey League (the “NHL” or “League”) player, thus posing some risk for an organization that has invested millions of dollars in the player. The situation has become untenable; Eichel’s agent even stated that “the process is not working” and that the Sabres had effectively agreed to Eichel’s preferred procedure, only to renege on that consent. Recently, Eichel failed his team physical and the team stripped him of his captaincy. So, why can’t Eichel receive the procedure he wants? It is his body, right?
Eichel’s main obstacle is the Collective Bargaining Agreement (“CBA”), negotiated between the NHL and the NHL Players’ Association (“NHLPA”). Article 34 of the CBA governs medical opinions. It permits a player to receive a second medical opinion as long as the second medical opinion physician (“outside physician”) is pre-approved by the League or approved on an ad hoc basis. Once approved, the team must provide the player’s relevant medical information to the outside physician. If the team physician and outside physician cannot agree on a course of treatment, the parties can solicit a “third physician expert” to help resolve the conflict. The heart of Eichel’s trouble lies in section 34.4(e), which gives teams the final say in which treatment the player may receive. To summarize, if Eichel wants to receive the disc replacement procedure and have the Sabres pay for it, he will need their consent.
Because of section 34.4(e), Eichel is essentially stuck between a rock and a hard place; however, he may have some options under the CBA:
- Get the surgery anyway
Eichel could receive the surgery without the team’s consent but could be suspended without pay. Furthermore, in the NHL Standard Player Contract, a form contract used by all teams in negotiating with and signing players, there is a provision permitting teams to completely terminate the player’s contract for failing to comply with the team’s rules “governing training and conduct of Players” or failing to “render his services.” Buffalo could argue that by refusing to receive their proposed treatment and not playing as a result, Eichel has failed to render services to the team that he is contractually bound to provide. Moreover, if he gets the surgery, the team could argue that he failed to obey team rules governing training and/or conduct (by receiving a medical procedure the club expressly denied). In any instance, this is a financially risky move because Eichel still has $50 million payable to him over the next five years. Alternatively, the parties could mutually agree to terminate his contract, freeing him from encumbrances related to medical procedures or conduct. This would make Eichel a free agent, not under any obligation to perform for any team. As such he could proceed with any procedure he pleases. However, as previously noted, he would be forfeiting $50 million.
- File a grievance
Article 17 of the CBA permits Eichel to file a grievance with the NHLPA. If the parties privy to the grievance cannot come to an agreeance, they may arbitrate the matter. Eichel could use a grievance to argue why his stance is the most equitable given the circumstances. When a grievance is filed, the CBA states that the arbitrator’s responsibility is to merely interpret the provisions of both the CBA and the player’s contract to determine compliance thereof—the arbitrator cannot alter any provisions of either document. Nonetheless, the arbitrator’s written decision is binding and “[constitutes] full, final, and complete disposition of the [grievance].” Based on the CBA’s language in the Player Medical Health provisions, it seems unlikely that Eichel would win, as it expressly gives teams the final word in approving medical procedures for players under contract. Because the CBA is a bilateral agreement consummated by the NHL and NHLPA, the arbitrator would likely hold that the players agreed to give teams this level of power.
- The Sabres consent to the surgery, or trade Eichel to a team that would
If Buffalo consents to the disc replacement, Eichel could get the surgery, rehabilitate for some time, then begin skating again. This option would mitigate any possibility of legal action taken under the CBA, as it would resolve the central issue between the parties. This is the most likely option, as the Sabres have been actively shopping Eichel around to various teams in hopes of obtaining valuable players or draft picks in return. The team, however, had been unwilling to disclose Eichel’s medical records during trade discussions, which is a major obstacle because any team acquiring him would likely need to consent to his preferred disc replacement procedure. As the NHL and NHLPA have intervened to expedite the process, the team has allegedly begun to disclose more information regarding Eichel’s medical records, and Eichel is now providing more information to prospective teams as well.
While people disagree over Eichel’s steadfast stance regarding his preferred disc procedure, there is one thing most mutually agree on: when the CBA was signed, neither side anticipated disputes like this arising, and when the time comes to renegotiate an extension, the player health and medical procedure provisions will likely be at the forefront of those discussions. Could players have the opportunity to negotiate into their contracts unique medical provisions based on prior medical history? Would the CBA provide players more standing through the grievance process? Whatever the case, the parties will need to undergo a delicate balancing of the player’s need to have a say in medical treatments and the team’s interest in protecting the substantial investments it makes in its players.
 Jackie Spiegel, Jack Eichel’s Agents Blast Sabres for Handling of Neck Injury: ‘Process is Not Working,’ SportingNews (July 30, 2021), https://www.sportingnews.com/us/nhl/news/jack-eichel-agents-sabres-neck-injury/vp8pc730ockl1hn0k48e8k36n.
 Ted Goldberg, Sabres GM Explains Why Jack Eichel Was Denied Neck Surgery, Spectrum News 1 (May 12, 2021), https://spectrumlocalnews.com/nys/buffalo/sports/2021/05/12/sabres-explain-why-jack-eichel-was-denied-neck-surgery.
 See Mike Harrington, Jack Eichel Should Assume Some Risk and Go Have His Surgery, The Buffalo news (Oct. 9, 2021), https://buffalonews.com/sports/sabres/mike-harrington-jack-eichel-should-assume-some-risk-and-go-have-his-surgery/article_df7661c6-22b2-11ec-a926-57b5674b80a5.html. See generally Disc Replacement vs Spinal Fusion Surgery, Lanman Spinal Neurosurgery (last visited Oct. 16, 2021), https://www.spine.md/artificial-disc-replacement/disc-replacement-vs-spinal-fusion/ (explaining the difference between a spinal fusion and an artificial disc replacement and describing a main benefit disc replacement has over a fusion, which is that a replacement can “[preserve] motion and mobility in the spine while fusion does not,” which is an important consideration for people who lead active lifestyles).
 See Harrington, supra note 4.
 See Spiegel, supra note 1.
 See Greg Wyshynski, Buffalo Sabres Center Jack Eichel Fails Physical, Stripped of Captaincy, ESPN (Sep. 23, 2021), https://www.espn.com/nhl/story/_/id/32262693/buffalo-sabres-center-jack-eichel-fails-physical-stripped-captaincy.
 See Harrington, supra note 4.
 See Collective Bargaining Agreement Between the National Hockey League and National Hockey League Players Association Art. 34.4 (Feb. 15, 2013), https://www.nhlpa.com/the-pa/cb [hereinafter CBA] (describing the process for when a player wishes to receive a second medical opinion).
 See id. at Art. 34.4(a)–(c) (outlining different procedures for selecting the second medical opinion physician depending on whether the physician is pre-approved by the League or must be approved by the team in the specific instance).
 Id. at Art. 34.4(c)(i)–(iii).
 Id. at Art. 34.4(d)(i).
 Id. at Art. 34.4(e) (stipulating that after reviewing the second medical opinion or recommendation from the third physician expert, the team physician “shall determine the diagnosis and/or course of treatment . . . giving due consideration to [the outside physician and third physician expert’s] recommendation(s).”).
 See id. at Art. 34.4(c)(ii) (providing that expenses for “other physicians” shall be payable by the team only If the team has given approval); see also Harrington, supra note 6 (implying that Eichel will have to pay for the surgery himself if he chooses to receive it without the team’s consent).
 See Harrington, supra note 4; see also CBA Ex. 1 at ¶ 4 (noting that the Club can establish rules “governing the conduct and conditioning of the Player,” and that for any violations of those rules or “conduct impairing the thorough and faithful discharge of the duties incumbent upon the Player,” the Club can impose fines and/or suspensions upon the player).
 Id. at ¶ 14(a)–(b).
 See Eichel Agrees to 8-year, $80M Contract Extension with Sabres, NHL (Oct. 3, 2017), https://www.nhl.com/news/sabres-eichel-agrees-to-eight-year-80-million-contract-extension/c-291553136.
 See CBA Ex. 1 at ¶ 13 (outlining the procedures for terminating a player’s contract and noting that once the contract is terminated, the player immediately becomes a free agent and is no longer obligated to perform under the agreement).
 See id. at Art. 17.2.
 Id. at Art. 17.5.
 Id. at Art. 17.13.
 Id. at Art. 34.4(e); see also Harrington, supra note 4 (proclaiming that Eichel would likely lose if he filed a grievance because the CBA “is pretty clear in this area” and that “the team took the second opinion Eichel received under advisement and then made its determination he should have fusion surgery”).
 See Wyshynski, supra note 7 (noting the shorter rehab time associated with a disc replacement surgery as opposed to a disc fusion).
 See Harrington, supra note 4 (claiming that the Sabres had been “refusing to let teams examine Eichel’s [medical records] on the grounds that they were not getting serious offers from other teams”).
 @Sabremetrix, Twitter (Oct. 14, 2021, 3:48 PM), https://twitter.com/Sabremetrix/status/1448737538773037063?s=20.
 See Harrington, supra note 4 (claiming that many teams want the Sabres to show that Eichel is not “above the rules” by refusing to cave into his demands); see also Mike Carter, Sabres’ Situation with Eichel Could Be a Game Changer for NHL, The Hockey Writers (Aug. 18, 2021), https://thehockeywriters.com/sabres-eichel-situation-game-changer-for-nhl/. But see MattTFS, Opinion: Jack Eichel is Not Selfish, Die by the Blade (May 11, 2021), https://www.diebytheblade.com/2021/5/11/22430698/opinion-eichel-is-not-selfis (arguing that Eichel should be entitled to receive whatever medical procedure he believes is best for his health).