Even Homeland Security in the USA effects Replacement players ..

Discussion in 'The Business of Hockey' started by Mess, Feb 24, 2005.

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  1. Mess

    Mess Global Moderator

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    Replacement players would pose immigration challenges

    Below a few interesting points .. Full Story Follow link.


    Truth is, getting replacement workers into the United States would be a rather daunting task. According to one of the nation's top immigration lawyers, who is counsel to the Washington Capitals, the league would be in uncharted waters at a time when restrictions imposed by the Department of Homeland Security are being applied to severely curtail foreigners in the American workplace.

    "The Department of Labor and Immigration under Homeland Security have always said that if there is a labor dispute, they would freeze the process," Avirom said. "In other words, new people who want to play in a sport where they don't have visas, they won't get a visa while the dispute is going on."

    The use of replacement players would likely be banned in the provinces of Ontario, British Columbia and Quebec, which have rules preventing it. While it would be possible for the NHL to put replacement players in Alberta - home of the Oilers and the Calgary Flames - the league could expect considerable legal hurdles using those replacement players on the Ottawa Senators, Toronto Maple Leafs, Vancouver Canucks and Montreal Canadiens.

    Hypothetically, the NHL would need two "divisions" - one playing in Canada with Canadians and one playing in the United States with American workers. A split like that would never happen. How could the league compete for a Stanley Cup? It's simply not a workable solution. "The only thing I have been told, not officially, is that in the event of replacement players, the American teams may have to use only American players,"

    In other words, the NHL better get a deal because replacement players aren't going to work.

    http://www.sunherald.com/mld/sunherald/sports/10957160.htm
     
    Last edited: Feb 24, 2005
  2. Kestrel

    Kestrel Registered User

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    Question... based on curiosity only. If replacement workers DID happen - could the teams from Vancouver, Ottawa, and Montreal operate from within provinces that DO allow replacement workers? And what about American teams using Canadian players that hold dual citizenship?
     
  3. Mess

    Mess Global Moderator

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    Here is a good read from TSN that clarifies that Question :

    http://www.tsn.ca/nhl/feature.asp?fid=9941

    Replacement players would be possible for the Edmonton Oilers and Calgary Flames because the provincial laws in Alberta could work in favour of such a move. But other teams - Ottawa, Vancouver, Toronto and Montreal - could run into legal challenges from the NHL Players' Association.

    Quebec and B.C. do not allow for replacement workers, which some experts believe could prevent the Montreal Canadiens and Vancouver Canucks from using replacement players. The teams could not play in, say, Hamilton and Seattle for a year, because they could easily be slapped with an unfair labour charge.
     
  4. Jarqui

    Jarqui Registered User

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    In 1992(?), Ontario amended their Labour Relations Act to prevent replacement workers.

    !n 1995, Ontario amended their Labour Relations Act again to allow replacement workers.

    In 2003, MPP Kormos(?) introduced a private members bill to again prevent replacement workers in Ontario but I do not believe it has passed or gone anywhere (Though it may have had some readings).

    At this moment in time, I believe that you can use replacement workers in Ontario but you can also understand from the above why someone might be confused on the law.

    As for some who feel Bettman intended to go for impasse all along, I'd suggest you re-read some of those articles that scratch the surface on the uncertain legal mess he would heading for. There are no guarantees even if he gets one. It is a big legal mess. That doesn't say however, that he won't at some point because it may be his 'best' alternative.

    'Just because they got closer to the same page last week and were no longer at impasse on some issue doesn't mean that they can't get an impasse two weeks later' paraphrased from the recent head of the US NLRB on the FAN590. As well, he said that both parties can regress in their positions after the cancellation of the season (as Goodenow said last week "everything is off the table and we start over"). So they can effectively reach impasse on something like linkage (for example) again.
     
    Last edited: Feb 24, 2005
  5. misterjaggers

    misterjaggers Registered User

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    The owners with their deep pockets don't need to bother with this impasse stuff. They can simply wait until the average player screams "I give" when he realizes that his career earnings prospects are starting to stink.
     
  6. arnie

    arnie Registered User

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  7. Wetcoaster

    Wetcoaster Guest

    This has been discussed in some detail past threads.
    http://www.hfboards.com/search.php?searchid=384549

    The Ottawa citizen ran a story on this about a month ago.
    The story you quote is not quite accurate. Canadian based teams with Canadian players would be able to enter the US to play games because they do not require a work visa to enter the US. Similarly the US based players would not need work permits to enter and play in Canada so there could be games played without the need for a Canadian and American division.
     
  8. Wetcoaster

    Wetcoaster Guest

    I suppose it depends which former head of the NLRB you listen to:

    The prospect of the impasse strategy drew differing opinions from experts in labor law, including the labor board chairman who ruled in favor of baseball players when they lodged an unfair labor practices charge against the owners after they declared an impasse in the 1994-95 strike.

    "There is no ground for impasse," said William Gould, professor emeritus of law at Stanford, who was the chairman of the NLRB from 1994 through 1998.
    http://www.azcentral.com/sports/coyotes/articles/0218nhl0218.html
     
  9. misterjaggers

    misterjaggers Registered User

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    Obviously the NHLPA would have been better off if the NRLB was still dominated by Clinton appointees like Gould. Instead it's dominated by Bush appointees!
    :lol
     
  10. Wetcoaster

    Wetcoaster Guest

    The law on bargaining impasse has remained unchanged and there are just as few impasse declarations accepted by the NLRB since Bush took over (about 1 in 10 are successful). That has remained constant over the past decade.

    That is hardly surprising since the courts exercise supervision over the NLRB and they cannot simply ignore precedent. Also the NLRB does not favour impasse declarations as they run counter to the desire for a collectively bargained agreement.
     
  11. Jarqui

    Jarqui Registered User

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    Same guy. Looks as if he was taken out of context. It's tough to believe that is all he had to say about it to the paper. He had plenty to say on the FAN590 answering very direct questions.

    First of all, as you know, there would be no law on impasse if the potential option to declare impasse didn't exist. The baseball players made their case but the baseball players case is not the NHL's case. Obviously, the NLRB can rule one way or the other on the merits of each unique case as they have done in the past. Therefore, baseball has little to do with it beyond the fact that they happen to be another pro sport and if the NHL case ever gets submitted, there may be some similarities observed at that time.

    Secondly, at this partcular moment in time, there is no impasse and none has been declared. As you know, that does not preclude them from ever arriving at one.

    As they are back to square one in negotiations, they may well get tangled on the linkage/cap stuff again. It just isn't a scenario that I would look forward to if I were an owner. Waiting a season or shutting it down for maybe five years or dissolving the NHL (maybe starting over) or some other options may well be better paths. There's no point going forward from the owners point of view if they are going to continue to lose money or they're going to get hammered in anti-trust after impasse with giant legal bills and damages.

    For those that enjoy observing legal battles though, it might be an interesting fight where they bash the heck of out each other playing out a legal chess match.
     
  12. rwilson99

    rwilson99 Registered User

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    Great now I know the question to the following trivia question:

    What former head of the NLRB is widely blamed for the explosion in steroid use in baseball and a prolonged lockout in the NHL, due to an unconsionable decision to impose a CBA on baseball owners in 1995?

    It's William Gould. Thanks President Clinton.
     
  13. CGG

    CGG Registered User

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    Whoever wrote the above post has no idea what he is talking about. First, the NHLPA is either a de facto union or can vote themselves in as a union (for all intents and puropses) in the province of Quebec. See: Major Leage Baseball, Montreal Expos, 1994. I assume the same would happen in BC, and Ontario if scabs are legislated as illegal again.

    Replacement workers are not allowed in Quebec. The league can't get off on a technicality. Nice try though.

    As for your visa argument, no dice. Those laws are specifically set up to AVOID replacement workers coming in from foreign countries to take the jobs of US citizens and residents. Free trade doesn't apply here anyway, since you still need visas, which they will not issue to foreigners, Canadian or otherwise. If you think they'll change all of this just to appease the NHL you're crazy.
     
  14. Mess

    Mess Global Moderator

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    I have read your post on the subject of Impasse and am very impressed with your knowledge on the subjuect and your impact it is making on discussion about it here at HF ....:handclap:

    This particular article is based on the ,,

    "According to one of the nation's top immigration lawyers, who is counsel to the Washington Capitals.
    "There are a lot of complicated regulations and there are always visa issues," said Jonathan Avirom, managing partner of Avirom & Associates in New York City.

    Avirom, 66, is the former president of the American Immigration Lawyers Association (AILA). His firm specializes in every facet of immigration and in securing visas, including for entertainers and athletes."

    So I think his words are very credible on the topic .. He may even be attending the Board of Governors meetings on March 1st on behalf of Washington Caps & Ted Leonsis to speak on the topic, when the owners are ** LOOKING AT ALL OPTIONS **
    However being American lawyer may not be so familiar with Canadian labour relations laws by Province. Perhaps ..

    But the Homeland Security comment deep down makes sense in the Article.. Since 911 the world has changed .. I can why these NO NEW WORK VISA's apply rule .. because of future terrorist actions .. If someone could shut down a company in the States and import Individuals from all foreign countries as replacements ..You can see the opportunity it is providing, to get work visa that would otherwise not be given out.

    "The Department of Labor and Immigration under Homeland Security have always said that if there is a labor dispute, they would freeze the process," Avirom said. "In other words, new people who want to play in a sport where they don't have visas, they won't get a visa while the dispute is going on."

    http://www.sunherald.com/mld/sunherald/sports/10957160.htm

     
  15. Epsilon

    Epsilon #basta

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    The Republican "Blame Clinton" approach is so widespread it's now showing up in sports.
     
  16. Wetcoaster

    Wetcoaster Guest

    I am not taking issue with what Jonathan Avirom said - I know him and he is extremely knowledgeable. Note however that it was not he who posited the two division set up, it was the reporter and that was the point that was incorrect.

    I have been working with immigration, athletes and entertainers since 1977 and I have handled hundreds of these types of visas. I have lectured on immigration and NAFTA issues to legal practitioners in both Canada and the US.

    In the ECHL dispute referred to in the Panzeri article, not only were no new visas issued but existing visas were cancelled by US Immigration.

    As I noted the immigration law in Canada against issuing work permits during labour disputes are similar to the US.
     
  17. Mess

    Mess Global Moderator

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    I continue tol read and enjoy your posts on the topic in the future, as I find this all very interersting and educational.. Keep up the Good work:teach:

    This is like the Reality Show Survivor but instead its the NHL as we know it, that is trying to Outwit, Outlast, and survive in the future, and players on both sides sure make things interesting at times ..

    In your opinion is union desertification a realistic outcome in all this mess ??

    There is a fine line between Union Busting on behalf of the NHL and NHLPA desertification .. Once that line is crossed all bets are off .. IMO ..
     
    Last edited: Feb 24, 2005
  18. hockeytown9321

    hockeytown9321 Registered User

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    Not to speak for Wetcoaster because he's forgotten more about this stuff than I'll ever know, but I don't think it will come to the PA decertifying. I think if it comes down to it, they will file with the NLRB to hold a decertification vote, but the owners will wet their pants and give in. I was reading a little about decertification yesterday, and I read a good quote from Marvin Miller, the former head of the MLBPA. He said a union is only useful if its members are more powerful being in it than not. As everybody says, the NHL's offers are only going to get worse and worse. At some point the players will realize they're better off without a CBA, at which point the decertification vote is held. If the league doesn't flinch, the players are really no worse off than if they accepted a horrible CBA. If the owners do back off, there'd definitely be no cap, probably no luxury tax. The players don't really have anything to lose.
     
  19. Wetcoaster

    Wetcoaster Guest

    It is an option because the NFL did it and the MLBPA and NBAPA have threatened it. In fact the NBAPA had the signed notices in hand and slapped them on the table daring Stern to call their bluff - he did not.

    As noted above the quote from Marvin Miller pretty much covers it and I agree with the analysis by hockeytown9321 - that is the equation the union will look at before decertifying.

    A number of posters have said if it was such a good tactic, why did MLBPA not use it in 1994. The answer to that is that they could not since baseball had a judicial exemption from antitrust law not enjoyed by the NHL, NFL and NBA. That changed in 1998 with the passage of the Curt Flood Act and in the last MLB negotiations the MLBPA did threaten decertification and the owners backed off.
     
  20. Egil

    Egil Registered User

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    Wet, if you read the article you linked, his statement was qualified. He says their is no grounds for impasse because of the movement from both sides last weak. By september, if each side re-entrenches, I think that reason would be out the window.
     
  21. Wetcoaster

    Wetcoaster Guest

    The problem with that from the NHL's position is that they have already moved. "Retrenching" is generally considered bad faith bargaining and an unfair labour practise.

    The NHL would face a huge uphill fight and impasse approvals from the NLRB are difficult to get in the best of circumstances.

    I honestly do not think that Bettman expected teh NHLPA to agree to the concept of a salary cap and that has made the road to impasse IMHO almost "impasssible". :lol
     
  22. hockeytown9321

    hockeytown9321 Registered User

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    Isn't that kinda like what happended in baseball? The owners demanded a cap, but did negotiate on a luxury tax at one point. The fact they considerded a tax was enough for the NLRB to determine a cap wasn't necessary. In the NHL's case, the court may not like the idea of the League going back to a linkage system when it has negotiated a non linked cap.
     
  23. justicex

    justicex Registered User

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    But let say the league save 200 millions by using scabs. They sure can put this money aside and backup Canadian teams with lawyers.

    ( Since we know it take ages to get a deal done with lawyers, canadian teams could just "challenge the law" and use scab. If they lose in court, then they use NHL backup'ed money to clear the bill$.

    Everyone happy.

    ( well beside regular nhl players )
     
  24. ladybugblue

    ladybugblue Registered User

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    The thing is the owners went to a non linked cap but nothing is stopping them from going to $25 million per team instead of a linked system. It would serve the same purpose and they wouldn't be changing stance. I don't think anything is out of the question...Both sides have done things I wouldn't have expected and the results were also somewhat unexpected...so we really don't know how the Labor board will treat this case. The NHL could argue that the NHL has lost more than any other group since they have been out the longer (i.e., losing an entire season +) so this may very well influence the outcome. If ESPN is lost and they lose other sponsers this may help the NHL get linkage even at the labor board. It has lost more than any other sports that has had a labor dispute and this cannot be ignored and may have influence.

    Question what the longest a employer has been in a labor dispute and then gone to try for an impasse? I know in sports the NHL will have been the longest but what about other business'? Just a thought we can speculate but this is all new and there is no way to really predict anything...this is all new territory.
     
  25. hockeytown9321

    hockeytown9321 Registered User

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    Right, but as long as the two sides are arguing over numbers and not philosophy, there won't be an impasse. Impasse is very easy to break, so all the players would have to do is move slightly in the owners direction.
     
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