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NHLPA Plan Could Fail

from Rob Becker, Sportsnet's legal analyst,

The NHL's decision to file a pre-emptive lawsuit against the NHL Players' Association appears to be based on a desire to show the union that its plan to file a "disclaimer of interest" in order to allow the players to file antitrust suits against the league will fail.

And I believe the union's plan will indeed fail because Judge Paul Engelmayer, the young but brilliant federal judge in New York City who has been assigned the case, will see right through the formality of the disclaimer of interest to the underlying substance of what it really is: just another negotiating tactic by a union whose death will have been greatly exaggerated.

And that will mean that the players' antitrust suits will continue to be barred, just as they have been while the union has been representing the players. It also means a settlement -- or at least a settlement that the union will be happy with -- is not just around the corner.

The governing law here lies on the borderline between U.S. labour and antitrust law. If the league and the union had not been negotiating with each other one-on-one over these past years -- if there had never been a union, or if it had been terminated some time ago -- then the players would be free to claim that the league's decision to lock them out was an illegal collusion of teams to avoid paying the players what they would get if there were free competition for their services.

continued

Filed in: NHL Talk, NHLPA, | KK Hockey | Permalink
 

Comments

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This article reminded me of a general blog suggestion, Paul.  Do you see any value in having a ‘views’ counter that sits on the main page heading piece of each article?

My memory of that suggestion was kindled by the notion that people really need to read this article, and I’d be interested to see how many people do relative to the more salacious (and fallacious) screeds written by the Brooks’ of the world.

Posted by HockeyinHD on 12/18/12 at 05:22 AM ET

Paul's avatar

HHD, it is something I may add in the future, but I feel another way to measure is the amount of comments made in a particular post.

Posted by Paul from Motown Area on 12/18/12 at 07:16 AM ET

Joe Z.'s avatar

NHL Plan could fail, the world could really go down on 21st,  there also could be a shorter season in 2013. legal analysts, we have some of them here in austria too, usually they are expecting the complete opposite of what’s happening in the real world.

“...will see right through the formality of the disclaimer of interest to the underlying substance of what it really is: just another negotiating tactic by a union whose death will have been greatly exaggerated.”

Leave those sentences for Clancy’s books. A judge must not “see through” the formality, his job is formality and he has to be able to argue his decision on hard facts, not some see-through 007 vodoo. Also a brilliant judge would never make accusations like “...what it really is: just another negotiating tactic….”. Poor logic in that article. He also uses the NBA to make a point but then he doesn’t because he can’t.

Posted by Joe Z. from Austria on 12/18/12 at 07:41 AM ET

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HHD, it is something I may add in the future, but I feel another way to measure is the amount of comments made in a particular post.

I see where you are coming from, but most of the time the comment section ends up just being about the comment section.  I’m more curious about how many people actually click through to read the full articles.  No biggie though, just a random thought.

Leave those sentences for Clancy’s books. A judge must not “see through” the formality, his job is formality

Not even remotely close.  Judges are required to interpret intent all of the time, and especially in cases like this for the reasons the author laid out in fairly clear detail.

Posted by HockeyinHD on 12/18/12 at 08:27 AM ET

Guilherme's avatar

HiHD, honest question: why do you always sound like we’re blind sheep and it’s your mission on Earth to save us all from the ignorance?

Can you actually give your thoughts on the article and not on what you assume we all think about it?

Posted by Guilherme from Brazsil on 12/18/12 at 09:00 AM ET

J.J. from Kansas's avatar

So if the judge preemptively sees it as a negotiating ploy and gives the NHL everything it wants as far as summary judgments, what happens when the NHLPA goes through decertification and simply doesn’t bargain?

Hardly fair to call it ‘bad faith’ when what they’re doing is proving that they’re actually serious about ending collective bargaining.

Do they have to wait until the NHL tries going with replacement players (who, by the logic of everything which would have happened by then could be argued automatically should be locked out as well) before they can start having individual suits taken seriously?

Posted by J.J. from Kansas on 12/18/12 at 09:11 AM ET

Guilherme's avatar

Posted by J.J. from Kansas on 12/18/12 at 08:11 AM ET

Also JJ, the judge will probably be a little confused. “Wait, so you want the union to continue existing, but when its members want the union leader to be in the room it’s a deal-breaker?”

Posted by Guilherme from Brazsil on 12/18/12 at 09:18 AM ET

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HiHD, honest question: why do you always sound like we’re blind sheep and it’s your mission on Earth to save us all from the ignorance?

I hope I don’t sound like that because I know beyond all doubt that if there’s one thing it’s impossible to save anybody from it’s their own ignorance.

All I’m doing is discussing these issues from my perspective and attempting to explain both that perspective and the areas in which I think alternate perpsectives come up short.

To the degree that kind of pushback enrages people, you see the result.

Can you actually give your thoughts on the article and not on what you assume we all think about it?

Give me a specific example where you feel that’s happened.  I ask for one because I really don’t see where I ‘assume’ what people think about whatever.  In fact, the reason I liberally quote the comments I respond to is an aid to prevent just such a thing from happening.

So if the judge preemptively sees it as a negotiating ploy and gives the NHL everything it wants as far as summary judgments, what happens when the NHLPA goes through decertification and simply doesn’t bargain?

Well, since there’s no Union I would imagine the NHL would simply institute work rules and then start looking for whichever players would want to show up and work under those rules.  In a situation where the Union voluntarily self-immolates, there’s no contra group which the league would need to concern itself with.

They could set the cap, the schedule, realign the teams, and set all the work rules.

And then depending on the terms of the rules and structure they set up, whenever players with ‘old’ SPCs came back those SPCs would be modified by the new work rules.  Term, amount, clauses, bonuses… all of that stuff would be completely open to unilateral change.

Hardly fair to call it ‘bad faith’ when what they’re doing is proving that they’re actually serious about ending collective bargaining.

But that’s the essence of the issue.  What the PA is doing is, fairly obviously, an attempt not to end collective bargaining but to engage in a little legal chicanery in an attempt to jump start it, or at least strengthen their position in it.  We know this because, as the article points out:

“But when the players actually vote to have the union disclaim interest, which is like asking someone to fire you, it’s pretty obvious that they aren’t disenchanted with their union at all. And just to make the sham clear, it was the NHLPA’s executive board that voted to authorize the players to vote to authorize the union to disclaim interest in further representing the players.”

I’m not sure it could be any more clearly explained than that.

Posted by HockeyinHD on 12/18/12 at 10:41 AM ET

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I hope I don’t sound like that

AAAAAAAAAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHA

Hehehehehe….

Heh

Ahhhhhhhhh, that’s funny.  Seriously,

seriously

funny.

Thank you for that.

Posted by Garth on 12/18/12 at 11:24 AM ET

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In fact, the reason I liberally quote the comments I respond to is an aid to prevent just such a thing from happening.

Really?  Because you usually quote the comments out of context and/or make assumptions that have nothing to do with what people actually say.

Seriously though, this?

I hope I don’t sound like that

This absolutely made my day.

Posted by Garth on 12/18/12 at 11:26 AM ET

J.J. from Kansas's avatar

Well, since there’s no Union I would imagine the NHL would simply institute work rules and then start looking for whichever players would want to show up and work under those rules.

If the NHL gets their way, there will still be a union. The legal request is to have the lockout deemed legal. You can’t have a legal lockout if you don’t have a union, so the judge would essentially be forcing the NHLPA to stay together and, by extension, would prevent the NHL from being able to unilaterally impose work rules without a CBA. The players would still have contracts that they would have to agree would be modified by that agreement.

The league request to void all contracts is an either-or consideration when placed next to their request to have the lockout deemed legal: Either the lockout is still legal and the union is still a union OR the union is allowed to disband and their contracts aren’t enforceable.

If case 2 is correct and the union is allowed to stop acting as a union AND the long-shot chance that it eliminates all contracts, then the league could impose work rules… they could also be sued under antitrust laws.

But that’s the essence of the issue.  What the PA is doing is, fairly obviously, an attempt not to end collective bargaining but to engage in a little legal chicanery in an attempt to jump start it, or at least strengthen their position in it.

Right, the question was “how long would it be before a court would rule that it’s no longer chicanery and is actually a serious decision by the members of the NHLPA to end collective bargaining and switch over to the realm of antitrust?” 

The court could essentially force the union to still act like a union, but for how long? And how exactly do you enforce that decision?  The follow-up charge to the idea that the NHLPA isn’t negotiating for a CBA becomes what, exactly, after they’ve already tried to tell you they’re collectively not interested in that?

Posted by J.J. from Kansas on 12/18/12 at 11:28 AM ET

J.J. from Kansas's avatar

Also JJ, the judge will probably be a little confused. “Wait, so you want the union to continue existing, but when its members want the union leader to be in the room it’s a deal-breaker?”

Posted by Guilherme from Brazsil on 12/18/12 at 08:18 AM ET

This piece, and the piece where Bettman admitted that the league’s first offer wasn’t actually a serious offer, but rather a bargaining ploy to “send a message” about where they wanted to end up will work in favor of the NHLPA. I don’t know to what extent, but if the idea is that you’re supposed to be negotiating in “good faith” is a central discussion point, then letting all of the ploys come to bear has a very good chance of leaving some judges absolutely disgusted with the idea that the NHL is tattling on the PA without a clean nose of their own.

Posted by J.J. from Kansas on 12/18/12 at 11:33 AM ET

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Thank you for that.

You’re welcome! smile

Really?  Because you usually quote the comments out of context and/or make assumptions that have nothing to do with what people actually say.

Eyeroll.

If the NHL gets their way, there will still be a union.

“So if the judge preemptively sees it as a negotiating ploy and gives the NHL everything it wants as far as summary judgments, what happens when the NHLPA goes through decertification and simply doesn’t bargain?”

If the NHLPA decertifies, what is it?

The problem is there are a number of competing issues here.  If the NHL wins it’s court case the NHLPA can’t disclaim and the lockout is valid, which appears to cut the knees off of the rational for subsequently decertifying since the point of a decert is to declare the lockout illegal via anti-trust legislation.  If the lockout is already considered legal with a union involved… well, that would seem to be that.

If the NHLPA ‘wins’ and they are allowed the disclaim/decert, then the NHL, now that it runs a sport without a union, can implement work rules like any other business could.  Oh, they may have to re-organize as a franchiser with 30 distinct brands, but they can get it done.  There’s the subsequent anti-trust suit to navigate, but time is on the owners financial side here, not the players.

The league request to void all contracts is an either-or consideration when placed next to their request to have the lockout deemed legal: Either the lockout is still legal and the union is still a union OR the union is allowed to disband and their contracts aren’t enforceable.

Pretty much.  It’s similar to the argument I’ve presented before vis a vis selective enforcement of terms in an SPC because of the way an SPC relies on the CBA to function.  IMO the NHL is saying, ‘hey great.  You want a clean slate, here you go.’  It’s a baby and bathwater situation.

I can’t possibly imagine the PA would actually want that to happen, while in the vast majority of situations the owners and GMs don’t particularly care.  Hell, they’d probably be tickled to be able to get 2-3 dog contracts off their roster.  Likely to replace them with +1 more dog contracts than they had before, but in the moment they’ll love it.

Right, the question was “how long would it be before a court would rule that it’s no longer chicanery and is actually a serious decision by the members of the NHLPA to end collective bargaining and switch over to the realm of antitrust?”

Long enough for it to be a moot point, probably.  If we’re talking about Jan. 11ish being The Last Day (tm), then even a delay of 30-60 days blows everything up as far as this season goes… and once this season is gone the owners are going to go for the players jugular.

This piece, and the piece where Bettman admitted that the league’s first offer wasn’t actually a serious offer, but rather a bargaining ploy to “send a message” about where they wanted to end up will work in favor of the NHLPA.

Nah.  Look, I called that that was precisely what Bettman was doing a couple weeks before he even brought it up.  It was pretty obvious.  The thing is, even silly opening offers aren’t illegal or even bad faith negotiation.  If they would have opened on 43% for the players and just sat there and never made a concession… that’s bad faith bargaining and they’d get smacked.

The reality is the NHL has moved towards the PA 5 or 6 times just on player share alone, in addition to reaching tentative agreements (allegedly) on a dozen or so peripheral issues.  And moving towards them on make whole, and contract terms.

That’s why trying to prove ‘bad faith’ is a fool’s errand from the PA side.

letting all of the ploys come to bear has a very good chance of leaving some judges absolutely disgusted with the idea that the NHL is tattling on the PA without a clean nose of their own.

There’s always the chance of that, sure… but that’s also why there is an appeals process.  If a single judge overreacts (in the opinion of either side) then they’ll just walk it up the chain to the District or Circuit level.

That’s why it looks pretty obvious that decert/disclaim was a ploy and not a real motion, JJ.  If the players really truly wanted to disclaim/decert and then sue on anti-trust what they would be implying is that they are giving up completely on the season because only an idiot would think that kind of litigation would resolve in anything less than a matter of months.

But that’s not what players are saying.  Players are saying they still think there will be a season.  Because they know the disclam/decert thing is just a tactic to pressure the NHL via fear of the subsequent litigation, not an actual motion they feel is justified on its own merits.

Posted by HockeyinHD on 12/18/12 at 12:33 PM ET

Guilherme's avatar

HiHD, I could look for an example, but I see no use for that. Garth and JJ and basically everyone knows that you assume too much about people.

But if you really wanna see something, look no further than your first comment:

“the notion that people really need to read this article, “

Now try and tell me that doesn’t have an arrogant tone. I’m not trying to be a dick, but I will say that those stupid arguments are driving me away from the comment section.

Take your “eyerolls”, for instance. It seems like you don’t have anything to say, but wants to have the last word everytime. You start a lot of your phrasing with “IMO” and stuff like that, but you have little to no respect for what other people think.

Posted by Guilherme from Brazsil on 12/18/12 at 01:08 PM ET

SnLO's avatar

Posted by HockeyinHD

Not to pile-on, but to join the lynch mob: you do argue just to argue. Your tirades go on for so long, I can’t even tell where you stand on the topic you’re discussing anymore. You get so intent on nit-picking everyone else’s comments, you lose site of the actual topic of discussion. You come across as a holier-than-thou know-it-all only person that really knows what is going on with everything and the only one with all the right answers. Maybe it’s because there’s no actual NHL hockey to discuss that has everyone on each other’s nerves, or it’s the nature of comments sections: who knows. Tone it down a little and try to be more brief.

Posted by Guilherme from Brazsil

Congrats to the Corinthians for a well-earned championship.

Posted by SnLO from the sub great-white north on 12/18/12 at 02:03 PM ET

J.J. from Kansas's avatar

The Globe and Mail has a piece today in which James Mirtle asks Nathaniel Grow (their own legal expert) to weigh in on this.  It’s a pretty good read.

http://www.theglobeandmail.com/sports/hockey/globe-on-hockey/does-the-nhl-have-a-winning-case-in-court/article6512470/?page=1

Page 2 of the discussion asks Grow to weigh in specifically on this article from Sportsnet’s legal expert. here’s what he had to say:

No. 3: There was an article on Sportsnet on Monday which stated pretty definitively the players had a losing case here. Does he have a point with regards to where the NHLPA stands?

Grow: “He’s incorrect about the NFLPA. It did pursue a disclaimer of interest, not a formal decertification as he said in the piece. The NFL appellate court decision in Brady also didn’t reach the merits of whether the players’ disclaimer of interest was valid in general. It merely held that they couldn’t get an injunction because the case had ‘grown out of a labour dispute.’ So the players were still free to pursue their antitrust case.

“Other than that, though, what he’s arguing is a plausible outcome for the most part, but I don’t think it’s nearly as certain as he does. For instance, one could distinguish the NHLPA disclaimer from the NFLPA’s insofar as the NFL players disbanded their union before the CBA had even expired. In contrast, the NHL players have appeared much more hesitant to do it, arguably indicating that their intention to dissolve the union is more sincere. I do agree with him that the players voting for disclaimer is an unusual scenario, and an argument in the NHL’s favour.

“At the end of the day, no court has ever decided whether a disclaimer of interest is sufficient for players to file an antitrust suit. No court has definitively stated that a formal decertification is sufficient for that matter. Personally, I think there is a reasonable argument to be made that disclaimer should not be sufficient for just the reason the piece argues. But at the end of the day, no one knows for sure how a court would rule. Reasonable minds could go either way on it.”

Grow agrees with Becker in the end, but he does a much better job of laying everything out evenly across the issue.

 

 

Posted by J.J. from Kansas on 12/18/12 at 02:50 PM ET

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o you see any value in having a ‘views’ counter that sits on the main page heading piece of each article?

I would like to propose a counter that is displayed in all HD comments, that keeps track of how many times he refers to an article, a fellow poster or their ideas as stupid.

Posted by jwad on 12/18/12 at 02:54 PM ET

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Reading Grows counter-argument to Becker, even though reaching similar conclusions, tells me that in a court of law there are no such thing as a slam dunk and why the NHL and NHLPA would choose to avoid the courts if they want to reach a deal quickly.

I’m curious how any ruling in NY court or any US court for that matter would affect possible future filings in Canadian courts.  There are so many jursidictions for these guys to sue each other in, going to court seems like a nuclear option.

Posted by hockey1919 from mid-atlantic on 12/18/12 at 03:07 PM ET

J.J. from Kansas's avatar

I’m curious how any ruling in NY court or any US court for that matter would affect possible future filings in Canadian courts.  There are so many jursidictions for these guys to sue each other in, going to court seems like a nuclear option.

Admittedly, this consideration might actually fascinate me more than a 48-game season. Tyler Dellow wrote that there’s significant reason for the NHLPA to consider Canadian lawsuits as well, but they may have to be careful.  Canadian law doesn’t care about any of the legal acts listed in the NHL’s lawsuit, but they also don’t have a treble damages clause to their antitrust laws.  Part of the Alberta Labor Relations Board’s findings when they tried that avenue was that they weren’t exactly happy with the amount of venue shopping going on.

While you can try to get things moved around in jurisdictions you expect to be favorable, I don’t know how happy US and Canadian courts are going to be when the union or the league try to ask them both to claim they have the right to adjudicate on the dispute.

Then again, I don’t particularly know how much Alberta courts are going to care what a US District says about the all-Canadian Oilers locking out some all-Canadian players.

Posted by J.J. from Kansas on 12/18/12 at 03:19 PM ET

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HiHD, I could look for an example, but I see no use for that. Garth and JJ and basically everyone knows that you assume too much about people.

Well, absent you showing me something that illustrates what you’re talking about, I’m not going to worry overmuch because you actually listen to Garth and JJ.  I mean, that’s fine obviously, but if those dudes are your lodestones…

Now try and tell me that doesn’t have an arrogant tone.

What’s arrogant about thinking people should read an article?  I think it had an interesting perspective and it was explained well.

Take your “eyerolls”, for instance. It seems like you don’t have anything to say, but wants to have the last word everytime.

Two things:

1) Read the comment that tend to precede an eyeroll.
2) Take a look at the number of threads where I’m the last guy who said something.

You start a lot of your phrasing with “IMO” and stuff like that, but you have little to no respect for what other people think.

I have all kinds of respect for what people think when they are right. wink

Your tirades go on for so long, I can’t even tell where you stand on the topic you’re discussing anymore.

If you care, ask me and I’ll tell you.  For the rest of it, c’est la vie.  If people want to get peeved with pushback, so be it.

I would like to propose a counter that is displayed in all HD comments, that keeps track of how many times he refers to an article, a fellow poster or their ideas as stupid.

I like it!  It would tend to just ding whenever specific posters or writers did something, though.  Which likely limits its usefulness.

Posted by HockeyinHD on 12/18/12 at 03:21 PM ET

Guilherme's avatar

but they also don’t have a treble damages clause to their antitrust laws

That’s what I was thinking about, JJ. Players probably realize they lost a lot of money already, and will be looking for the treble to compensate those losses. Even if a Canadian court rules in their favor, I don’t know what they’d gain from it.

Posted by Guilherme from Brazsil on 12/18/12 at 03:23 PM ET

Guilherme's avatar

Well, absent you showing me something that illustrates what you’re talking about, I’m not going to worry overmuch because you actually listen to Garth and JJ.  I mean, that’s fine obviously, but if those dudes are your lodestones…

First of all, nice of you to attack JJ and Garth out of the blue. Since you asked…

Where your point of confusion lies is in the degree to which you seem to imply that all profits for all events held within the building should be thrown into the finances of the NHL team, while the expenses for operating the building should be borne by external units outside the hockey team. .(JavaScript must be enabled to view this email address)

You imply what JJ “said” and goes on to point his mistakes, even if he never actually said it.

What strawman, exactly?  Your position is that a team should be in a non-traditional hockey market for well longer than 15-20 years before financial success should be expected. .(JavaScript must be enabled to view this email address)

Which means your entire position is meaningless. .(JavaScript must be enabled to view this email address)

Excellent.  So then your position is to wait until something happens, and then either whine about or extol its virtues. .(JavaScript must be enabled to view this email address)

So yeah, you’re always “interpretating” everyone’s position, seems to absolutely never get it right, and generally acts as you’re the only one who knows the facts.

I have all kinds of respect for what people think when they are right. wink

Dick.

Posted by Guilherme from Brazsil on 12/18/12 at 03:37 PM ET

SnLO's avatar

I post this with the intention of it being my last thoughts on the subject. We’ll see.

Your tirades go on for so long, I can’t even tell where you stand on the topic you’re discussing anymore.
If you care, ask me…

That’s my point, I shouldn’t have to ask what the was the point in everything you just wrote.

For the rest of it, c’est la vie.

Your call, but don’t write:

I hope I don’t sound like that

and

All I’m doing is discussing these issues from my perspective and attempting to explain both that perspective and the areas in which I think alternate perspectives come up short.

when, in-fact, it seems you don’t care how you come across and are the one peeved with pushback from other people that don’t agree with your perspective. If you can’t accept a little constructive feedback, c’est la vie.

Posted by SnLO from the sub great-white north on 12/18/12 at 04:25 PM ET

RedMenace's avatar

The troll is well-fed wherever it goes…

Posted by RedMenace from the Church of Jesus Lashoff on 12/18/12 at 04:45 PM ET

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I’m curious how any ruling in NY court or any US court for that matter would affect possible future filings in Canadian courts

What I should have said was actually fillings and not rulings which are more definitive. If you file claim x in court x, I make another claim y in court y and be dueling over the same issue as both plaintiff and defendant in two seperate countries that do not have to respect each other’s jurisdiction. What a mess.

Posted by hockey1919 from mid-atlantic on 12/18/12 at 04:58 PM ET

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Right, the question was “how long would it be before a court would rule that it’s no longer chicanery and is actually a serious decision by the members of the NHLPA to end collective bargaining and switch over to the realm of antitrust?”

The court could essentially force the union to still act like a union, but for how long? And how exactly do you enforce that decision?  The follow-up charge to the idea that the NHLPA isn’t negotiating for a CBA becomes what, exactly, after they’ve already tried to tell you they’re collectively not interested in that?

Posted by J.J. from Kansas on 12/18/12 at 10:28 AM ET

I assume all they would need to do to prove that disclaimer legit (right now it’s most definitely a farce) is to wait X months before appealing the decision. Or refile the paperwork later. Or wait X months and decertify instead of disclaim. Or provide proof that the “union” has had no contact with its players for X days since disclaiming.

I doubt any of this would happen, though. As recently as yesterday, Francis Boullion was talking about this as a negotiating tactic and Joffrey Lupul was talking about how they should continue to trust Fehr’s judgment going forward.

Clearly this has been sold to the players as some magic bullet that makes an ownership give a concession that gets a CBA done. I hope, for their sake as much as anything, that they’re right, though I seriously doubt it. The NHL has NEVER backed down (or lost) when someone tries to use the law against them.

Posted by larry on 12/18/12 at 05:00 PM ET

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If case 2 is correct and the union is allowed to stop acting as a union AND the long-shot chance that it eliminates all contracts, then the league could impose work rules… they could also be sued under antitrust laws.

By whom, though? In your scenario, if contracts are void, there’s no grounds for an anti-trust lawsuit. I mean, even if I knew, I don’t know, Hershey was an illegal monopoly, I don’t see what I could do about it; I have no business relationship with them and am not an employee.

Posted by larry on 12/18/12 at 05:04 PM ET

J.J. from Kansas's avatar

I assume all they would need to do to prove that disclaimer legit (right now it’s most definitely a farce) is to wait X months before appealing the decision. Or refile the paperwork later. Or wait X months and decertify instead of disclaim. Or provide proof that the “union” has had no contact with its players for X days since disclaiming.

Right. There’s definitely a timeframe at play here where a lockout would no longer be legal because the end of the Union would be “old enough” to be taken seriously as a collective statement on the failure of collective bargaining, but I’m wondering how long that is.

Even more, how long does either group want it to be? What happens if the court rules that the Union hasn’t waited long enough to disband without actually saying how long is long enough? Does this force the NHLPA to take a deal or do they just file lawsuit after lawsuit until such a time is reached that a court finally says “Ok, you haven’t collectively bargained for long enough. You’re free to sue now.”?

If the plan is to use the threat of judicial force to create a more-favorable CBA, then what protection is there against the idea that the entirety of the NHL lawsuit is aimed directly at doing that?

By whom, though? In your scenario, if contracts are void, there’s no grounds for an anti-trust lawsuit.

Until they sign one single player… and then the other 1,400 or so.

Not to mention every single 18-year old kid with any claim that he’s skilled enough to compete on the open market for an NHL job who the league is trying to tell has to allow himself to go through a process where his professional team will be selected for him and that there are limits to how much money he can be paid that were unilaterally set by a league of 30 businesses who have never been given single entity status (and likely won’t be getting that protection since the American Needle vs. NFL decision).

We’re well outside of the realm of likelihood now; in reality, the voided contracts gambit is a serious longshot, considering the league is arguing on a very vague portion of the SPC; the idea that the NHLPA responds to a judgment that the lockout cannot be enjoined by simply not negotiating and just waiting until they actually ARE allowed to decertify is also not likely (since they’re still not playing and making money at that point).  But, the timing of this lawsuit does carry the danger that the NHLPA could very well go with the wait it out route until at least next season starts getting canceled, since if it gets that far in the first place, they’re already not going to make any money for playing NHL hockey until next September anyway.

I believe the NHL wants the end of collective bargaining MUCH less than the NHLPA would and if they push too far, they might end up having these legal questions definitively answered in a way that hurts them much more than simply backing off on CBA term, contract term, and transition rules would have.

Posted by J.J. from Kansas on 12/18/12 at 05:34 PM ET

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Until they sign one single player… and then the other 1,400 or so.

In the unlikely event that it gets this far—I don’t see them allowing signings without either reorganizing into a single entity or creating a collective bargaining agreement with a union. Not necessarily THIS union, but a union*, nonetheless. If they’ve got no contracts on the books, they can just suspend business operations until such time as one of these things happens. Sure they still need to pay the rent in the meantime, but that’s why their are whispers that, taking this legal process to the ludicrous extreme would cost the NHL about 6 teams.

But just opening doors without a CBA…it just won’t happen, imo.

*By this, what I mean is, suppose Pat Brisson and Don Meehan don’t like what Fehr’s doing (in Brisson’s case, this is known to be true and Meehan is one of the architects of the previous CBA, so probably doesn’t appreciate hearing Fehr give a history lesson about how his CBA from 5 years ago bent the players over). They create a NHPA and negotiate a deal with the NHL. If something like that were to happen, I think they’d reopen the doors. Now, I don’t see either of these guys taking the paycut that would come with doing this, so it’s just a thought experiment not something I’m wishing would happen.

Right. There’s definitely a timeframe at play here where a lockout would no longer be legal because the end of the Union would be “old enough” to be taken seriously as a collective statement on the failure of collective bargaining, but I’m wondering how long that is.

Yeah, dunno. You’d have to scour lexisnexis to try and figure out if any entity has ever even been in such a situation. Might be that a full decert’s all you would need. Which is a 20 month round-trip thing (union->4 month process->not union->one year waiting period->4 month process->union).

Posted by larry on 12/18/12 at 06:28 PM ET

J.J. from Kansas's avatar

By this, what I mean is, suppose Pat Brisson and Don Meehan don’t like what Fehr’s doing (in Brisson’s case, this is known to be true and Meehan is one of the architects of the previous CBA, so probably doesn’t appreciate hearing Fehr give a history lesson about how his CBA from 5 years ago bent the players over). They create a NHPA and negotiate a deal with the NHL.

A rebel NHLPA would be a funny follow-up to a disclaimer of interest, to be sure. In the event of a decertification, it would really just be a recertification with different union leadership.

I’m sure that the NHL probably would never allow a true open-market system, but I can’t see them reorganizing as a single entity, considering exactly how much sharing that entails would be required between 29 owners/ownership groups who all bought in and would want to protect what equity they have in individual teams.

I wonder how many sponsorship contracts would be voided by the NHL suspending business operations instead of locking out? There would be some interesting fallout from that.

 

Posted by J.J. from Kansas on 12/18/12 at 06:53 PM ET

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I’m sure that the NHL probably would never allow a true open-market system, but I can’t see them reorganizing as a single entity, considering exactly how much sharing that entails would be required between 29 owners/ownership groups who all bought in and would want to protect what equity they have in individual teams.

To be sure, it would be a “last resort” option. But it’s still better than leaving themselves liable to between 1.8 billion and $5.2 billion in damages.

I wonder how many sponsorship contracts would be voided by the NHL suspending business operations instead of locking out? There would be some interesting fallout from that.

Posted by J.J. from Kansas on 12/18/12 at 05:53 PM ET

I doubt they could be. Best case scenario, the NHL just gives the money back. Worst case, they’d have damages, but, again, not $1.8 billion to $5.2 billion in damages. The biggest creditor would be NBC, but I expect they could be plied with some sort of freebies or just this year’s money back + a buyout fee + a mutual parting of the ways.

Now, that’s not painless and the NHL would have casualties. Just not as many casualties as they risk taking in no-CBA no-union world.

Posted by larry on 12/18/12 at 07:10 PM ET

Hippy Dave's avatar

Man we need to get some hockey going quickly, we’re turning against each other!

Posted by Hippy Dave from Portland by way of Detroit on 12/18/12 at 08:41 PM ET

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