Impasse hasn't legally been attempted by NHL (yet)

http://www.lawmemo.com/articles/hardball.htm

This link is a good read to help anyone wondering about the declaration of an impasse and implementation

"Before an employer actually implements its pre-impasse proposals, it must be sure that an impasse does indeed exist. An impasse is defined in the law as the point at which further discussions would be futile. Designating a situation as futile is by no means an empty philosophical exercise; it is a fact-laden legal determination that has spawned countless NLRB and court decisions. Here are some of the factors that are likely to be an important part of the debate:"



1. "bargaining history of the parties"

--- The NHL has a long and extremely bad history of bad faith negotiating with the NHLPA but you can bet the NHL will argue the league has corrected itself since hiring Gary Bettman, having an audit by Arthur Levitt, and offering the union since 1998 to audit their books.

2. "good faith of the parties"
--- "Delay Tactics", NHL has tried to open up the CBA for years, so NHLPA has no shot with one
--- "unreasonable demands", NHLPA won't be able to use the cap since other hockey leagues have it
--- "efforts to bypass the union", NHL has tried to constantly say it is up to the union to decide for a vote, etc
--- "failure to designate an agnet", I assume this means a bargaining group, NHL has Bettman, Daly, and other lawyers
--- "arbitrary scheduling of meetings", both publicly stated they are open to talks since lockout, both sides were stubborn
--- "employer has withdrawn already agreed-upon provisions", NHL has never to my knowledge agreed to anything in writing

3. "length of negotiations, although no set number of meetings are required"
--- NHL has tried to negotiate and begin discussions for years and since lockout, so again, this won't stop impasse

4. "importance of issues on which the parties are deadlocked"
--- NHL and NHLPA are not even close with cap or tax issue, absolutely deadlocked. Once the NHLPA agrees to negotiate a cap, the deadlock issue won't exist. The NHL tried to work on their system but the talks were back at a deadlock.

5. "belief of the parties as to whether impasse exists"
--- Daly & Saskin made it clear, they won't move on their offers

6. "rejection of a final offer by the rank-and-file union membership"
--- This is where things get interesting. NHLPA claims league made a final and best offer but yet did not hold a vote but NHL says they never gave a final offer so until the NHL does so, there won't be an impasse declared. You have to give a final offer before you can claim an impasse. If the league does so and the NHLPA refuses to send a vote, it will help the NHL.

7. "union’s rejection of proposals without presentation of counterproposal or requesting more time to negotiate"
--- NHL has made three straight proposals without any counter offer by the players or request to negotiate on the last offer

8. "union’s refusal to recommend a final offer to the rank-and-file for ratification"
--- NHLPA has repeatedly said they will not send any NHL offer iwth a cap to a vote, this would be foolish by PA

9. "union’s withdrawal from negotiations without attempting to schedule more meetings"
--- It could be argued but unlikely, the NHLPA has all but withdrawn from negotiating in good faith since their December 9th offer due to the league making 3 offers to none countered. Daly wondered aloud why the NHLPA asked for them to stay overnight, you have your answer right here. They needed to show an attempt to schedule more meetings. It will be crystal clear to a labor judge of the NHLPA's tactic this week.

10. "whether reasonable time existed for the union to review information supplied to it by the employer and analyze its impact on counteroffers."
--- The NHL made the offer on Wednesday night, union rejected it that night wtihout even having enough time to review it so the NHL will say, they made a decision. They've also had how many days since the offer was made on Wednesday and since the bulk of the offer was their own from December 9, a judge won't be too interested in hearing the NHL's complaints of no time.


"Employers who wish to keep open the “impasse and implementation†strategy must establish a track record of choosing their words carefully. If a party indicates that its position on one issue is flexible and can be traded off for other concessions, there may be no impasse. Moreover, if the last meeting resulted in settlement of some issues or significant movement by either party, it is unlikely that an impasse can be proved."

NHL made it clear, this was an attempt to save the season and went against what they have tried to negotiate in good faith and since the offer included their cap system if the trigger points were hit, means, the league truly never left their main bargaining position just was trying to save a season. Once the season is gone, NHL will likely withdraw any offer on the table that includes a luxury tax and go back to their original offers prior to this week. Since nothing was agreed upon, they can move back to their position.

 

could Daly's words today be used against the NHL

he has said that they could have a cap system with no linkage

is that not moving off a position and being flexible

 

If reports are true that the NHL has lifted its gag order, I think this is a pretty strong sign that the NHL has decided not to go the bargaining impasse/replacement player route. One of the major reasons was to keep NHL owners from saying anything that could be used later against the NHL. Look how quickly Bettman hammered Steve Belkin with a fine when he spoke out about a bargaining impasse

Given the difficulties in getting the NLRB to agree with an impasse, the ban on replacement workers in BC and Quebec and the immigration constraints on work permits and visas in Canada and the USA have likely convinced the NHL that the process is a no go.

 

Do you think they were seriously considering this in the first place?

Given your knowledge of the situation, and the fact that both sides probably have a plethora of sports law lawyers employed and retained, I'm not sure why you would think it was ever a serious option.

I think the gag order was about not having some owner undermine the owners bargaining position. Sure, it helped prevent some owner from saying something that might sabotage implementation.

If the gag order was really lifted, I think this is an act of desperation by the owners. I think they are hoping some last minute comments by the owners might galvanize the PA into further negotiation. I think at this point, all they want is the PA to make a close to last and best offer.

 

My position on impasse declaration from the get go has been that it would be very difficult to achieve based on precedent, case law, immigration constraints on foreign players and prohibition on replacement players in BC and Quebec.

However as all lawyers do you keep all your options open as long as possible - it is all about negotiating strategy and keeping the other side off balance so I believe the gag order had several purposes. If the situation had broken differently the NHL might have tried the impasse declaration if they thought they might get significant movement across the line from some of the players. It seems pretty clear that the NHLPA is not going to splinter despite the fond wishes of some posters here.

My position has always been that the later in the season the lockout goes, the more pressure is on the owners as the play-offs are the gravy for the teams because they have no player salaries. To me a 28 game season as I predicted awhile back makes sense. It means the owners will only have to pay about one-third of the normal team payroll and by restricting conference play they will cut down on travel expenses while still playing a full slate of play-off games. It would also allow them to still access their US TV deal. I suspect if the season gets off at 28 games the CBC will broadcast games in addition to Saturday HNIC.

Looking back, in terms of keeping the other side off-balance it seems to me that the pressure shifted onto the owners' side after the December 9, 2004 proposal by the NHLPA. That proposal came out of left field, seemed to catch the owners off-balance and since then it seems the owners are scrambling. The NHLPA initiated the small group meetings and put the owners in the position making proposals and even had Bettman and Daly travelling to Toronto to deliver the proposal.

It is the owners now making proposals and apparently moving off linkage after the gambit by Bettman to make it appear that they were accepting the players' December 9, 2004 offer that no one seemed to buy other than some rabidly pro-owner posters. The media and commentators saw through the tactic and dismissed it for the phantom offer that it was.

It now seems to me to be a brilliant strategic move on the NHLPA's part to completely ignore the triggers put forward by the owners and focus on revenue sharing at the next day meetings which was the major portion of the players' proposal not part of the owners' gambit. It certainly seemed to have Bettman and Daly confused and since the players had already seeemingly abandoned any pretence of working their PR, it had virtually no effect on them. Similarly both Bettman and Daly seemed confused by the NHLPA reaction (really lack of reaction) to the threat of a cancelled season. Basically the NHLPA said well you started this so you do what you think you have to do.

The response by the NHL was to lift the gag order, try to use some owners to put pressure on players as reported by SportsNet's Mike Brophy (a clear violaltion of labour law) and indicate that they would no longer insist on linkage. Meanwhile the NHLPA sits back and waits.

Jim Hughson has just done an editorial saying that the play-offs could easily be played into August or September if need be and that it would mean that there would be no real competition from football and basketball. A little radical maybe but who knows for as Hughson points out we have already awarded a Cup on June 24 so why not July, August or September and we have had Canada Cups and other tournaments in the summer.

 

A cap without linkage was proposed by the NHL last July and has been discussed since. It isn't news. Just someone in the media who has not followed the negotiations trying to make it news.

Lifting the gag order so that the owners can talk with the media is not a labour relations law violation. I can find no media stating that Bettman instructed the owners to talk with the players.

I have read some claims that some players have been calling the teams to try to find out what can be done and if the owners fall for that, they would be in violation of the law.

 

I know your question was not addressed to me, but I will throw in my two cents worth anyway. My answer is...NO.

I do not think the NHL is/was considering declaring impasse this year. Obviously, it remains as a last ditch alternative but I don't see them falling back to that alternative until this time next year. It has been interesting to read the discussion about the nuts and bolts of declaring impasse in an abstract way, but I do not think either side wants their fate decided by the courts.