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Legal Action Is An Option For The NHLPA

from Rick Westhead of TSN,

The NHL Players’ Association’s lawyers are investigating whether to file an unfair labour practice complaint with the U.S. National Labor Relations Board (NLRB) or pursue a grievance with an arbitrator if the NHL decides to cancel the upcoming season, two people familiar with the matter told TSN.

If the league decides against playing the 2020-21 season, a complaint to either the NLRB or an arbitrator would be the process the NHLPA would follow to try to get players paid.

continued

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It’s hard to believe that the players are as dense as they come across in this situation.  The CBA insures that all hockey related revenue is split 50/50 between the owners and players.  The only thing that is up in the air is the timeframe in which that is achieved.  If the players refuse to make concessions now, it’s just increasing the amount of money they will have to give back when the total hockey revenue is determined.  The idea that by standing up and fighting now that somehow they will be giving up less money is pure ignorance.  It’s like tax withholdings from your paycheck.  You can have more withheld on a weekly/monthly basis, and you will get a bigger refund at the end of the year, or you can have less withheld and end up with a smaller refund, or possibly owing money at the end of the year.  Your tax liability is the same in either scenario.  Likewise, the players are going to end up with 50% of the hockey related revenue.  How much is put into escrow during the season has NO EFFECT on the total amount of revenue that will be allocated to player salaries.  I wonder if the players are getting bad info from their agents about how this all works, or if they are just plain stupid.  it’s simple math.

Posted by MikeO on 12/03/20 at 04:51 PM ET

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So the NHLPA lawyers are going to sue in a Court that is closed due to the Pandemic.

The Courts have been closed for months in the USA.

The NHLPA’s argument is going to be that essential services like the US Courts can shut down due to Coovid, but entertainment like Hockey MUST be played, regardless of the pandemic

Anyone else see the logic here?

Posted by nevinsrip on 12/03/20 at 06:33 PM ET

Nate A's avatar

The CBA insures that all hockey related revenue is split 50/50 between the owners and players.

Is it really that simple? I’m certainly not up on the details of the CBA but seems to me if the players automatically got a percentage cut, there would’ve been no need for the voluntary salary reduction negotiated earlier this year. And as ownership basically had free hand to write the last CBA(s), it would not surprise me one bit if that 50/50 split is only guaranteed in one direction. Please correct me if I’m wrong.

You’re right, the players will simply not get paid if this year is scrapped, so they’re losing out on that money. But I’m not sure the percentage has anything to do with how many games are played or what revenue the league generates.

And all that said, from what I have read of the bylaws over the last couple days of this discussion, i think the players will loose the lawsuit. The COVID situation is certainly out of the league’s control and akin to a natural disaster.

Posted by Nate A from Detroit-ish on 12/03/20 at 06:37 PM ET

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Good questions, Nate.

I find it hard to believe a PA head as experienced as Fehr
would pursue this tack if there was nothing financially at stake.
Sure, standing up against the owners and their future desire and
attempts to extract additional concessions after the fact could be a reason.
But I’m not sure it’s a sufficient reason to explain what the NHLPA is apparently considering.

From a public health perspective, I agree that the current and likely
even much greater near term spikes in infections and hospitalizations and worse
in relation to when vaccines are likely to be available and taken by a large enough proportion of the public is, in the context of the ever-shorter runway the league has left to play a season, means that canceling entirely may be the right move.
I know back in early summer most of us were saying things along the lines of:
hey, if the league can somehow pulls of playoffs and do it safely, it will be fun…but
it’s not the priority in the scheme of things at all. We love hockey but let’s make sure we’re all safe and healthy enough to enjoy it next year and the year after that.

But is that realistically why the league would cancel - the spike and untenable nature of scheduling a rump season safety? Or, is it that a lot of owners don’t like the deal their commissioner negotiated and want to get a bigger cut? Would a court - whether the parties argued remotely or in person - accept the rationale by the league that something totally unforeseen and out of their control is really why they want to cancel the season? There have been some pretty clear suggestions in the reporting so far that it’s about owners not liking the idea of how a shortened season with few if any fans would affect their bottom line. That’s a legit gripe but it’s not an emergency.

Posted by lefty.30 on 12/03/20 at 09:30 PM ET

d ca's avatar

So the NHLPA lawyers are going to sue in a Court that is closed due to the Pandemic.

The Courts have been closed for months in the USA.

The NHLPA’s argument is going to be that essential services like the US Courts can shut down due to Coovid, but entertainment like Hockey MUST be played, regardless of the pandemic

Anyone else see the logic here?

Posted by nevinsrip on 12/03/20 at 06:33 PM ET

1) NLRB is a quasi-judicial body that is not shut down. You can review it’s latest rulings here.

The NHLPA’s argument is unfair labor practices by management against a union. Concept is pretty simple you agree to a CBA and they keep moving the goalposts violating that CBA.

The logic is that 1) Senate seats in Georgia are up for grabs and their outcome could change laws regarding unions and CBA’s.

One of the mentioned outcomes is passing the PRO act which among others would allow workers to bring private lawsuits for violation of the NLRA and give the NLRB the authority to impose civil fines of $50,000 for labor violations, which could be doubled for a repeat violation.


2) Pres. Donald Trump stacked the 5 member board with 3 anti-union members who have ruled against workers and unions.

  (Rep) William Emanuel: term on his seat expires Aug. 27, 2021.
  (Rep) Marvin Kaplan: term on his seat expires Aug. 27, 2025.
  (Dem) Lauren McFerran: term on her seat expires Dec. 16, 2024.
  (Rep) John Ring: term on his seat expires Dec. 16, 2022.
  Vacant seat: term on this seat expires Aug. 27, 2023.

Pres. Biden will get to replace those republican appointees with democrats. Therefore, the cases that go before the board will eventually move power from companies towards unions.

3) The cases for the NLRB are emergency judicial rulings. They take time—sometimes years. The latest ruling (Nov 25th) was on a case that began on 10/17/2018. Filing now just means the case gets resolved a few months sooner in the future rather than one that impacts the 2021 season.

So the season might be lost. But the board may rule against the company change the terms of the CBA mid-stream and force the company to pay the workers a year after they didn’t allow them to work.

It’s a negotiating tactic and often used by both sides to bring the other side to the table or face the consequences of a unilateral ruling.

Posted by d ca on 12/04/20 at 02:35 AM ET

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Filing a complaint with the NLRB is not the same as filing a lawsuit.

Every Labor contract has a clause that evokes emergency contingencies. Like war and pandemics

So, you expect the NHLPA to win the argument that we are not in an emergency situation?

The lawyers are posturing. They know that no Judge in the world is going to rule that the decision not to play a season is breaking the contract.


By your logic, what about ticket takers, ushers and the like.
Do they have a case? They belong to a Union that has a contract with the stadium.
Or the Zamboni driver, stationary engineer, equipment manager or Ice Girls?.
Can they all sue if the owners don’t play?


The contract calls for a 50-50 split of revenue.
What happens when the final totals are in and there is no revenue to split?
Will the players have to play for free?

All of this is nonsense written by borde writers who have nothing to write about.


And the was an excellent cut and paste job you did there. Forbes, was it?

Posted by nevinsrip on 12/04/20 at 04:20 AM ET

MurrayChadwick's avatar

It’s hard to believe that the players are as dense as they come across in this situation.  The CBA insures that all hockey related revenue is split 50/50 between the owners and players.
Posted by MikeO on 12/03/20 at 04:51 PM ET

Mike, as I read up more on this, I think the agreement they made to have the Covid tournament, was to untie the 20/21 season to revenues. That’s a moderate “think” there I could be wrong for sure.

Despite the amount of hockey media laying around with no games being played, the details are too few and far between on this, but there’s a couple of good articles in Forbes of all places on it.

Posted by MurrayChadwick from YzerHolland2.0's pixie dust fueled bandwagon on 12/04/20 at 09:36 AM ET

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And as ownership basically had free hand to write the last CBA(s), it would not surprise me one bit if that 50/50 split is only guaranteed in one direction. Please correct me if I’m wrong.

Posted by Nate A from Detroit-ish on 12/03/20 at 06:37 PM ET

You seem thoroughly confused about how percentages work.  With a 50/50 split, there is no “direction”, each party receives the same amount, half of the total.  There is only a “direction” when the split is something other than 50/50.  For example a 60/40 split could go one direction with ownership getting 60% and the players gettting 40%, or the other direction with the players getting 60% and ownership getting 40%.

Posted by MikeO on 12/04/20 at 02:45 PM ET

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Escrow is used to get 50/50 split at the end of the season. Since the newest CBA defined maximum escrow percentage, it follows that 50/50 split is not automatic.
Also, it’s hard to claim that today’s situation is worse than last season concerning playing NHL games. Also, it’s hard to claim that NHL can’t play when all other leagues are playing. Force of God could have been claimed last season, but how can you claim that between the CBA signing and now new, totally unforeseen circumstances happened?

Posted by Davor on 12/04/20 at 02:59 PM ET

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I don’t have the agreement in front of me, but based on the reporting that was done, there were two major changes: 1) the percentage of player salaries going to escrow was increased AND 2) the salary cap was frozen at the current $81.5 million for the next three seasons, at which point they will settle up the 50/50 split for those three seasons and come up with a projection for the coming season. 

The idea that increasing the percentage of player salaries going to escrow means that the 50/50 split no longer applies reflects a complete lack of understanding of what escrow is and how it works.  The amount being paid into escrow by the players was increased because it was obvious that the pre-Covid revenue projections wouldn’t be met.  If escrow had been left at the same percentage, at the end of the “three year cap freeze” the players would owe ownership hundreds of millions of dollars. 

I pay money into escrow each month for my property taxes, if I increase the amount of money I am putting into escrow, it has NO EFFECT on the amount I will end up paying in property taxes.  If the amount I put into escrow is less than my tax bill, then I still owe money.  If the amount I put into escrow ends up being more than the tax bill, I get money back.  The idea that paying more (or less) into escrow somehow negates the underlying contract terms is misguided, to be polite.

Posted by MikeO on 12/04/20 at 04:44 PM ET

d ca's avatar

It’s a negotiating tactic and often used by both sides to bring the other side to the table or face the consequences of a unilateral ruling.
Posted by d ca on 12/04/20 at 02:35 AM ET

The lawyers are posturing. They know that no Judge in the world is going to rule that the decision not to play a season is breaking the contract.

And the was an excellent cut and paste job you did there. Forbes, was it?

Posted by nevinsrip on 12/04/20 at 04:20 AM ET

“The was” an excellent job of agreeing with exactly what I said while trying to change what I said to discredit it.

The NLRB and what they do: the NLRB is an administrative agency. If a complaint is filed with them (and not withdrawn), a lawyer investigates and has 3 options:1) they try to settle the claim through bargaining, 2) dismisses it, or 3) form a case that is heard before an Administrative Law Judge. That Judge passes the NLRB his findings. If there are issues, the board made of 5 administrators vote and make rulings. These rulings are not law—but are given much credence in a court of law.  If either the union or employer is unwilling to follow the guidelines set down in the decision, the NLRB files a petition in the Court of Appeals.However, the board’s policy since the 1950’s is nonacquiescence—the board makes it’s own rulings regardless of how any circuit court has ruled in the past until the Supreme Court says otherwise.

The NLRB is not ruling on the contract’s validity. THEY ARE RULING ON THE BARGAINING BY THE EMPLOYER OR THE EMPLOYER’S UNFAIR LABOR PRACTICES
or vice-versa on behalf of the employer. They are not the judicial branch determining if contract language is legal.

So, it’s nice that you think the NLRB is a lower level court with an individual judge ruling on contract law regarding an out clause due to pandemics and think the NHL wants any part of changing the CBA…but that is 100% a mistake.

The NHL using the out clause of the contract meanwhile means the 50/50 split goes out the window. The union can enter into bargaining for another CBA to get rid of the salary cap, to get rid of the proportion of split, to get rid of rookie pay scale, etc, etc.  It’s why Buttman was so quick to say they weren’t negotiating a material change to the CBA via declaration of emergency.

..ps even the contract law is not as clear cut as you think anyways….do the Wings have more than 500 people on their direct payroll still or are they laid off: then they have different set of rules to follow than if not given the Families First Coronavirus Response Act—which would give the players 2 weeks of paid (at 100% their normal salaries not proportionally) leave. For 72M in player payroll that means about 2.75M in payments if everyone on the team was simply around someone with a positive test…and that’s before the ushers, security, and others with CBA’s all do the same. In fact the NHL players could take up to 12 weeks of unpaid leave and be guaranteed their jobs back with the law. How do you think that would affect the salary cap system?

So in summary it is a posturing move. But it is definitely not an empty threat you are trying to make it out to be that can be dismissed via emergency state declaration voiding a CBA.

Posted by d ca on 12/05/20 at 02:16 AM ET

d ca's avatar

... Force of God could have been claimed last season, but how can you claim that between the CBA signing and now new, totally unforeseen circumstances happened?
Posted by Davor on 12/04/20 at 02:59 PM ET

If the NHL exercises the CBA’s declaration of emergency clause it either suspends or nullifies the CBA (based on language) and thereby gives the union the right to negotiate a new CBA.

The NHL wants no part in that (they could lose the salary cap, the 50/50 revenue split, the rookie pay scale, free agency control, etc)—which is why Buttman is adamant about not negotiating a new CBA or backing out of their previous agreement.

 

Posted by d ca on 12/05/20 at 02:24 AM ET

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Paul Kukla founded Kukla’s Korner in 2005 and the site has since become the must-read site on the ‘net for all the latest happenings around the NHL.

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