Question about impasse

Discussion in 'The Business of Hockey' started by Hawker14, Feb 7, 2005.

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  1. Hawker14

    Hawker14 Registered User

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    It's my understanding that a salary cap is not collusion if agreed to in a CBA.

    my question is, if the owners declare an impasse and unilaterally implement a salary cap system, how/why is this not collusion ?

    do replacement players who play under such system waive their rights regarding anti-trust law ?
     
  2. Kestrel

    Kestrel Registered User

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    I don't have the legal knowledge, but I suspect that if a cap was made a formal rule in the league, perhaps players would forfeit their right to take legal action against a cap by agreeing to play in a league that had such an established rule. Any legal gurus know if there's a way of the league pulling off something like that?
     
  3. The American courts have zero interest in hearing anti-trust cases involving professional sports leagues.
     
  4. hockeytown9321

    hockeytown9321 Registered User

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    Oh, really? Do some research pal. Start with Curt Flood.
     
  5. You really should look at a calendar, pal. My statement stems from the NBA players association executive director, where do you get your stuff? Might also want to look into some research on Justice Stephen Breyer and the NFL Supreme Court decision. If Goodenow plans on going the anti-trust route, he's in for a long haul and a big gamble.
     
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  6. robcav

    robcav Registered User

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    As is Bettman, there is always the chance that the NLRB could rule in favor of the players, reinstate the last CBA and force the owners to pay damages to the union.

    Even if the players lose before the NLRB they still have the option of decertification, which would invalidate the imposed CBA, the draft and every other facet of the NHL, NHLPA relationship.

    IMO, owners have much more to lose by bringing the case to the NLRB, logically you would think that they know that, but the way Bettman is running the league logic plays no part.
     
  7. Motown Beatdown

    Motown Beatdown Need a slump buster

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    Plus you have the problem with replacement players. Something Wetcoaster has touched on with great research regarding work visas and such. If the NHL doesn't plan on replacement workers there is no need to call an impasse.
     
  8. HarryStrand

    HarryStrand Registered User

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    Why would that be? Wouldn't a court in a democratic nation have to hear any case that was properly filed and had legal reasoning behind it?

    It would seem to me imposing a salary cap could be just one more way that an impasse could be challenged in the courts.

    From this article, it looks like "imposing" a CBA through the impasse process could subject the NHL to severe sactions and legal damages if their imposed CBA were found by the courts to be illegal restraints on competition. A negotiated CBA gives an anti-trust exemption that simply does not exist under a CBA decleared through impasse.

    http://www.newsobserver.com/sports/hurricanes/story/2091614p-8470290c.html


    Quote:

    "Q: You hear the term "antitrust exemption" with baseball. Does hockey have one, too?

    A: There is the baseball exemption. This is different. The nonstatutory labor exemption protects agreements made by management within the context of collective bargaining. When you reach a CBA, you can't sue somebody for imposing that agreement on all the teams in the league as a conspiracy in restraint of trade.

    Q: What are the consequences if the league loses that exemption?

    A: The consequence of losing that exemption would be that certain types of agreements entered into or enforced by the league and its member teams would be illegal restraints on competition. Potentially, a court could enjoin the enforcement of those agreements and could award treble damages to persons who could prove that they were harmed by the agreements. Other types of agreements might still be acceptable under a legal test known as the Rule of Reason (the critical part of the legal inquiry or test is whether the effect of the agreement is more pro-competitive than it is anti-competitive). Potentially, any league rule that prevented competition among the teams for players, for example, could be challenged as violating the antitrust laws."
     
  9. Jocus

    Jocus Registered User

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    This has been discussed heavily in Quebec where unions are quite strong.

    It is illegal to declare an impasse and start over in Quebec and would be a fight in the other provinces(could go either way).

    So, if they do declare an impasse, there is no way the Canadiens would compete the next year.

    I am not sure if this would fly in court, but could the NHL argue that they are not competition, but one company? They could argue that every team is connected and competing against other professional teams and entertainment sources. Basically saying that they are like McDonald franchises and the NBA is Wendy's and NFL is BK. Nothing stops McDonald from making up a salary policy that is to be followed by every franchisee. Also, every McDonald is owned and operated by independant individuals, just like a professional league. Any lawyers out there that could point out the shortcoming of my thinking?
     
  10. Wetcoaster

    Wetcoaster Guest

    Under the impasse declaration process in the US there is a CBA.

    How it works is as follows. If the NHL believes it is at an impasse it puts together a comprehensive proposal as its last best final offer. If it is refused by the NHLPA the NHL can then declare an impasse, implement the offer as the CBA and open for business if they can get replacements. that may be a significant problem for the NHL given the international nature of the player pool since US and Canadian immigration law would severely constrict the pool of available players.

    This does not end the labour dispute since it is only a temporary solution and the NHL is required to continue to seek a negotiated solution with the NHLPA.

    The players now have certain options. They can strike and file complaints with the NLRB. If the NLRB determines that there was not an impasse in fact, that the NHL failed to bargain in good faith or committed unfair labour practises, then they can void the declaration. This occurred during the 1994 MLB labour dispute and the owners were ordered to play for two more years under the previous CBA.

    In that case the NHL has opened itself up for some severe financial penalties because the players with existing contracts can seek payment under those contracts, players without contracts can file suit and even players who played as replacement players may have an antitrust claim.

    The NHLPA can decertify as the the NFLPA did during the 1987 labour dispute when they were seeking to remove the Rozelle Rule and gain free agency. Once decertified the NFLPA hired the former NFLPA executives and legal counsel as advisors and filed a series of anti-trust suits personally and on behalf of all the players. Ultimately the NFL paid out $195 million to settle the lawsuits and granted free agency whereupon the NFLPA reconsituted as a union and negotiated a new CBA. One of the replacement players, Tony Brown, brought an antitrust suit.

    Hope that helps you understand.
     
  11. Wetcoaster

    Wetcoaster Guest

    That will come as great surprise to the American courts given the numerous cases over the years.
     
  12. mudcrutch79

    mudcrutch79 Registered User

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    Does anyone think that if the NHL were to go the impasse route (which is very, very unlikely), they'll do it sooner than later? Burn this season, but implement your proposal prior to the draft? That removes the problem surrounding QO's, the draft and signing drafted players from 2003. I can't see much point in waiting until Sept. to implement.

    Conversely, if they haven't done it by, say, June 15, would I be correct in concluding that they've decided not to?
     
  13. This has been discussed on another hockey board

    and simply stated, the NHL can not implement a salary cap even in an impasse. A salary cap must be negotiated between the parties, period. The US has Anti-Trust laws that would slam the NHL if they did that. The NHL will make a offer that does not include a salary cap in an attempt to split the players union and get people to cross the line.
    Bettman is trying to bust the players union. He has sold the owners on being able to get costs down. His head is squarely on the block. Everyone says how happy the NFLPA is with a cap. They get the bulk of their contract money up front with huge signing bonuses. They sign these multi million dollar contracts and 2 years later they are cut. They get a fraction of the total value of the contract.
    How many small market teams could afford to ante up large bonus payments?It Bettman and his horde are not careful the NHL could resemble the EPL in England where only the richest of teams have quality teams and a real chance at winning. That's what the NHL gets for hiring a basketball guy, the NBA on skates!
     
  14. Wetcoaster

    Wetcoaster Guest

    I concur with the previous poster - do some research before posting such blather.

    You can start with Radovich v. NFL from the 1950's in football, baseball started its run of antitrust cases in the late 1800's with the seminal case being the Curt Flood case in the 1970's and Dale MCourt of the Red Wings used the courts to block his rights being transferred by an arbitrator in the 1970's.

    The NBA has used antitrust for years. Oscar Robertson as President of the NBAPA filed antitrust suits to challenge the proposed merger of the NBA and ABA in order to wring salary concessions out of the owners. Michael Jordan and Patrick Ewing led players who threatened to decertify the union and file antitrust suits when the NBA moved to limit the Larry Bird exception to the salary cap and replace the soft cap with a substantially hardened cap.
     
    Last edited by a moderator: Feb 8, 2005
  15. Wetcoaster

    Wetcoaster Guest

    Of course the NHL can impose a salary cap if they declare an impasse. The imposed CBA insulates the owners from antitrust law as long as it is not voided by the NLRB. Whether or not it holds up before the NLRB is a whole other issue.
     
  16. jcab2000

    jcab2000 Registered User

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    Oh cool. So the owners should just agree to whatever the players want and institute their own secret salary cap.
     
  17. Wetcoaster

    Wetcoaster Guest

    No it would not work.

    In the US the law is clear, the teams are individual businesses and subject to antitrust law if they conspire as a league to restrain trade without the shield of a CBA.

    In Canada it is equally clear but it is spelled out in our counterpart of US antitrust law, the Competiton Act and there is even a specific section applying to professional sports.

     
  18. Wetcoaster

    Wetcoaster Guest

    You are correct that the gamble is from the owners but it is the players and the NHLPA that will bring the antitrust actions in the US as has occurred in the past in other professional sports, including hockey. See the Dale McCourt case where he blocked his transfer from Detroit to LA.
     
  19. Buffaloed

    Buffaloed webmaster

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    Is depends on the franchise agreement and how the profits are distributed. Are franchises independent businesses, economically competing with one another, or part of a larger entity that shares profits and distributes them according to a determined formula to its employees? The former is collusion, the latter is not. The NHL's proposals involving revenue linkage to salaries, and profit sharing are deliberately designed to permit a cap without collusion.
     
  20. David A. Rainer

    David A. Rainer Registered User

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    The Supreme Court already ruled that the NHL is not a single legal entity and is subject to anti-trust litigation. I forget the name of the case right now, but I think it was something like San Francisco Seals v. NHL (and a list of the various owners of the league). But absent that decision, you're right on.
     
  21. David A. Rainer

    David A. Rainer Registered User

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    Labor law allows it. If you recall, Labor Law supersedes anti-trust law wherever there is an inconsistency between the two. Under labor law, when an impasse is declared, a whole new set of rules comes into effect. One such allowed rule is the right for employers to implement their "last/best" - that is, the last and best offer made to the union - unilaterally. The rationale is that employers, in a time of labor unrest, also have the right to do what is necessary in order to keep their businesses in business. They are not required to stop all production for the entire duration of labor stoppage. At some point, a court will declare that no progress is being made (impasse) and employers are free to implement their own agreement for employment and start all over again with fresh new employees. It is tantamount to the employer drafting the entire CBA and the employees agreeing to everything in the CBA as they sign on to be replacements. This was already discussed in someone's earlier post.
     
    Last edited: Feb 7, 2005
  22. David A. Rainer

    David A. Rainer Registered User

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    Far be it for me to speak on someone else's behalf, but I think he was referring to the Supreme Court not having any interest in taking up the topic (presuming anything reached that far). And no, the Supreme Court does not have to hear any case filed before it except for thos issues where the SC is the court of original jurisdiction (flash back to first year Con Law, I think it is where an international treaty is at stake or whenever something is filed against the President or international emissaries). Otherwise, they're free to pick and choose as they wish.
     
  23. hockeytown9321

    hockeytown9321 Registered User

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    In all seriousness, you should do some research. Or at least pay attention to wetcoaster since he's one of the few here that actually backs up his statements with facts.
     
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  24. mudcrutch79

    mudcrutch79 Registered User

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    Deathfromabove,

    Do you see impasse as a viable ending to this? Particularly in light of the immigration issues?
     
  25. Wetcoaster

    Wetcoaster Guest

    The NLRB only does that to enforce their own orders per Silverman v. MLB. I am unaware of the NLRB pursuing antitrust cases - IIRC that is not within their statutory jurisdiction.

    The actual antitrust suits I have reviewed are filed and conducted by the players (can be representative actions as with the Reggie White case filed on ehalf of all the NFLPA members).
     
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