NHL's incentive to avoid negotiation

Discussion in 'The Business of Hockey' started by wint, Nov 30, 2004.

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  1. wint

    wint Registered User

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    In the 1994 baseball stoppage, the owners hurt their case for declaring a legal impasse (which would have allowed them to set their own rules and bring in replacement players) by continuing to negotiate with the union. I'm not clear on the specifics, but I believe the reasoning was that leaving the table once you are already engaged in negotiations can be seen as "bad faith," while never even approaching the negotiation table until the union agrees to acknowledge the league's version of the problem can be seen as a sign that an impasse is necessary.

    If this is the case, it would explain quite a bit about the league's current refusal to negotiate with the NHLPA. But it would also raise the question of why the union isn't doing more to engage in talks. Surely the NHLPA wants to avoid an impasse (the speculation I've heard is that the union's upcoming proposal will be first and foremost an attempt to make the league look like it is negotiating in bad faith, and therefore, make it impossible for them to declare an impasse).

    Is anyone familiar enough about labor/sports law to know if it is actually advantageous for the NHL to avoid negotiating with the union if they are planning to declare a legal impasse?
     
  2. shakes

    shakes Pep City

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    Aside from what many think here, the owners probably know that replacement players are really not a financially viable option.
     
  3. Iceman23

    Iceman23 Registered User

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    Replacement players will work if an adequate number of players cross the lines. If you get a good number of the young stars and draft picks playing, I doubt the league would have trouble filling seats. If the union sticks together, then it is a whole different story. They'd have to slice ticket prices waaaaay down to get people in the building to being with.
     
  4. Tom_Benjamin

    Tom_Benjamin Registered User

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    I don't think this is true. I can't believe any court or tribunal adjudicating labour law that would reward one side or the other for not negotiating.

    I think the problem with baseball was that they were making public claims they were not prepared to back up. If baseball (or hockey) is making the case that their position is dictated by economic need, they have to open up the books to prove that case. They can't get away with tabling a URO whether it is certified by Arthur Levitt or not.

    So baseball had to begin their argument in favour of impasse by saying "We are not claiming we can't afford to pay and that we need this new economic system to survive". That makes winning very difficult.

    They actually ended up arguing that the issues of free agency and salary caps were not a mandatory subject for bargaining. They tried to claim they didn't need to show impasse to implement the cap. They could do it without union approval. The NLRB and subsequent appeal courts laughed baseball back to the bargaining table.

    I don't think the objective here will ever be impasse because I don't think the NHL could ever get a favourable ruling from the NLRB. They are going to have to show that there is only one solution to the problem, however they define that problem. They can't use replacements unless they can convert the lockout to a strike.

    Aside from the possibility of playing without a new contract, I think we will be waiting until one side or the other moves on the fundamental issue. The owners say salaries must be tied to an artificially designated revenue number and the players refuse. Until that changes, we sit.

    Tom
     
  5. jeffbear

    jeffbear Registered User

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    Actually, under US Labor Law, actual negotiations (the kinds with progress and compromise on both sdes) ARE a hinderance to the courts upholding a claim of impasse. One of the defining legal characteristics of impasse under US law is a clear lack of progress in negotiations. Now, that doesn't preclude either side from making proposals, but it does preclude the kinds of proposals that were flying back and forth during the Baseball negotiations. In a very real sense the NHL owners would be best served to simply stand on their six proposals and reject discussions on any union proposals that don't fit within the framework of anything that the owners haven't already put on the table. That is probably why you saw the six proposals at once strategy from the league in th first place ... to open the door to negotiations without closing the door on impasse.
     
  6. hockeytown9321

    hockeytown9321 Registered User

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    For those more knowledgeable about impasse than I, how long of a process is it? I can't imagine the NHL shows up to court, lays out their problems and then gets the ruling they want by lunch.

    Wouldn't the first step be to determine what the league really lost, and wouldn't the NHL fight them on subpoena'ing their books?

    Wouldn't it also be very easy for the players to move one step closer to what the owners want for the court to decide they're making progress?

    I guess I'm just unclear on why so many think the court issues will be resolved by next September.
     
  7. Tom_Benjamin

    Tom_Benjamin Registered User

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    But they can't get to impasse with the six proposals. They have to end up failing to negotiate a specific agreement with specific articles.

    In other words, there is no open door on impasse to close.

    Tom
     
  8. fan mao rong

    fan mao rong Registered User

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    Baseball-early on the owners wanted a salary cap-players countered with luxury tax. Owners started negotiation on amount of luxury tax then came back with a try to implement a salary cap. Judge Sotomayor ruled that implementation could not be done because sides were not at impasse because negotiations were still ongoing on luxury tax issue. Baseball owners also tried to implement an end to the old baseball CBA clause disallowing collusion and to end unrestricted free agency after not negotiating them with the union at all . Owners claimed these were permissive matters of bargaining and not mandatory (dealing generally with wages, terms , and conditions). Judge Sotomayor ruled that collusion and Unrestricted Free Agency were central to salary compensation issues and therefore a Mandatory item for negotiation.
     
    Last edited: Nov 30, 2004
  9. GabbyDugan

    GabbyDugan Registered User

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    I mostly agree with that statement, although I'm a bit mystified why the NHL didn't put forth a formal offer from one of those proposals to at least bolster their case for an impasse down the line.

    It seems to me that there is a huge amount of leeway in getting to that impasse scenario. The official US Government definition of "impasse" is incredibly flexible...

    http://www.business.gov/phases/managing/manage_employees/nlrb_glossary.html

    Impasse--A deadlock in negotiating between management and officials over terms and conditions of employment. Whether an impasse in bargaining exists "is a matter of judgment," the Board said in its 1967 decision in Taft Broadcasting Co. v. AFTRA, and depends on such factors as "bargaining history, the good faith of the parties in negotiations, the length of the negotiations, the importance of the issue or issues as to which there is disagreement, and*the contemporaneous understanding of the parties as to the state of negotiations."



    Furthermore, in practical terms, an employer can be pretty regressive with a formal offer even if it does declare an impasse.

    http://www.lawmemo.com/emp/nlrb/irra51.htm


    ...."Finally, another interesting case -- which was issued by a panel rather than the full Board -- was Telescope Casual Furniture, 326 NLRB No. 60. In that case, which issued August 27, a panel majority (Chairman Gould and Member Hurtgen) affirmed an ALJ's finding that the employer did not violate Sec. 8(a)(5) of the Act by implementing an alternative bargaining proposal that was discussed by the parties during negotiations but was different and more regressive than its final proposal which was rejected by the Union. The ALJ found that the alternative proposal was "reasonably comprehended within" its pre-impasse proposals, and that the Employer's implementation of the alternative proposal was therefore lawful under the standards set forth in Taft Broadcasting, 163 NLRB 474, enfd. 395 F.2d 622 (D.C. Cir. 1968). The majority affirmed, noting that although the alternative proposal had been used to pressure the Union to agree to the final proposal, such pressure or hard bargaining is not unlawful. Member Liebman dissented.".....


    I'm not a Bettman apologist nor am I a Goodenow lackie....just a fan who is more than happy to spend the time and money I can spare watching the NHL do what it is supposed to do.

    However, it is pretty clear that Gary Bettman has convinced all the owners from Nashville, Ottawa, St. Louis , Toronto, and every other point on the NHL map that all they have to do to "win" this lockout and "fix" their supposedly sick industry is sit back until a new labour agreement can be negotiated or imposed. If not the "impasse" scaenario, what is Bettman's hidden agenda that the owners, despite each team having unique financial and business issues, are silently standing behind, solidly united as one voice?
     
  10. fan mao rong

    fan mao rong Registered User

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    Lecture #4 redux Okay, since the baseball thing was mentioned and to back up what I put up 2 or so squares up, thought I'd repost this screed. It is a long treatise from Duke Law but if you go on to near the end it explains the whole baseball episode including commentary on the judge's decision and the NLRB affirmation thereof.
     
  11. Buffaloed

    Buffaloed webmaster

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    They need to negotiate all mandatory issues for collective bargaining before they can declare an impasse. Maybe there's more going on behind the scenes, but it doesn't look they've even scratched the surface on any issue other than salary/payroll. Issues such as free agency, waivers, the entry draft, insurance, merchandise rights, and the standard player contract (structure, guaranteed or not, bonuses) need to be included in negotiations. The NHL simply can't remove these as bargaining issues by claiming it all depends on a salary cap. Although the salary cap is the central issue, a court would rule that they might find common ground if they negotiated the other issues. Not negotiating doesn't help the NHL unless they've either resolved or reached an impasse on the other issues.
     
  12. thinkwild

    thinkwild Veni Vidi Toga

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    Bettmans strategy makes sens if you assume he has no intention of using replacement players or getting to impasse, but rather just intends to hold his breath and wait out.

    Impasse is said to be strictly a procedural determination of the results of collective bargaining. Not whether one has a better PR case of why they need it. I remember reading one opinion that suggested sticking to their demand that this must be negotiated helps their case procedurally.
     
  13. fan mao rong

    fan mao rong Registered User

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    Okay, you say up top they need to negotiate mandatory issues. That's all they have to negotiate. If the league plan is impasse and implementation and they acheive it, then they can implement all mandatory issues they have negotiated over PLUS they can implement all (permissive) non-mandatory issues they so desire. I think there is something of that on the link I provided above, where the judge ruled that the cancelling of Baseball's Anti-Collusion provision in their old CBA and eliminating Unrestricted Free Agency were mandatory subjects of bargaining. If they would have been ruled non-mandatory (permissive) the Baseball owners could have implemented them as they saw fit.
     
  14. Buffaloed

    Buffaloed webmaster

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    There was no chance of that happening. Issues that have been collectively bargained in the prior CBA are considered mandatory by the courts almost without exception. That's the major reason the owners have been so resistant to luxury tax proposals and haven't countered with any like proposals of their own. It opens the door for revenue sharing to become a mandatory issue and they don't want the players to have any say in how revenues are shared.
     
  15. thinkwild

    thinkwild Veni Vidi Toga

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    Resistance to talk about luxury taxes or revenue sharing for fear of making them mandatory items of bargaining. Now thats an interesting angle to look at it from. Never thought of that one before. This battles seems destined to be settled by lots of waiting while awaiting a win on a technicality allowing them an advantage.

    In the last CBA, the players it was reported, refused the luxury tax the owners wanted. This time the owners dont even want to mention it. The Blue Fin project seemed to sour them or scare them. I guess as long as they avoid talking about it this time. Sounds like a pretty flighty way to negotiate.
     
    Last edited: Dec 1, 2004
  16. Buffaloed

    Buffaloed webmaster

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    Actually in the last CBA, the owners proposed a cap, and the players said they would accept one contingent on revenue sharing. The owners rejected that. We're still at square one. The recent quotes from Bill Daly indicating that a luxury tax could be a part of the solution indicates some movement on the part of the owners. I suspect there's quite a battle going on behind the scenes between the large, small, and middle market sized teams that'll intensify as the lockout continues. All the owners could agree on a $31 million hard cap, but I doubt if Daly's statement on a luxury tax was unanimously approved.
     
  17. Tom_Benjamin

    Tom_Benjamin Registered User

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    I think that was the amazing thing about the baseball case. How on earth did baseball think they could win? How could they possibly think they could make the case free agency or a salary cap would not impact on wages?

    I understand the point, but I don't understand the resistance to the idea. Well, I do understand why the owners don't want to share revenues, but I don't understand why they care whether it is part of the CBA or not. The NHLPA can't insist on it, and they certainly don't oppose it.

    There is no real revenue sharing in the NHL. About 9% of revenues are pooled. The NFL pools 70% of their revenues.

    Tom
     
  18. thinkwild

    thinkwild Veni Vidi Toga

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    THe PA would seem to recognizing the battle between the owners with its suggestion it could send the proposal directly to the owners and not Bettman. There has to be 10 owners, the ones who made money, who ar egetting pretty antsy about now.

    Daly has suggested he'll use whatever word they want, as long as it ties revenues to salaries. Same old same old it sounds to me.
     
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