Question about impasse

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Crazy Lunatic

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hockeytown9321 said:
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.

He backs up his statements using 25 year old court decisions that have been contradicted by newer Supreme Court decisions. He acts as if antitrust law is crystal clear as it relates to professional sports and that is just plain wrong. But I'm sure he knows more than the NHLs team of lawyers. My question is what is this dude going to say when impass is declared and replacements are brought in?
 

Egil

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The issue of impasse working is a tricky one. The NLRB is mainly full of Bush (anti-Union) members than in 1995, when it was mainly Clinton (pro-union) members. How the courts will react is extremely complex, and anyone arguing that 1 side or the other is guaranteed to lose is talking out of their arse.
 

hockeytown9321

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Crazy Lunatic said:
He backs up his statements using 25 year old court decisions that have been contradicted by newer Supreme Court decisions. He acts as if antitrust law is crystal clear as it relates to professional sports and that is just plain wrong. But I'm sure he knows more than the NHLs team of lawyers. My question is what is this dude going to say when impass is declared and replacements are brought in?

So the Supreme Court has ruled that Curt Flood's anti-trust case never happened?
 

Epsilon

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Crazy Lunatic said:
Do yourself a favour and look up Justice Stephen Breyer and the NFL Supreme Court decision, dipsh*t. And you are saying billionaire owners with masters degrees are dumb? Probably a lot dumber than hockey players who barely got through high school, huh? What an idiot. :lol Must be easy to talk tough sitting in your trailer park. Have another beer, you moron. All you anti-trust obsessed wannabe lawyers (or just bad actual lawyers) need help.

You do nothing but troll and try to pass off your opinions as facts. Then get mad at people who actually use actual facts to back up what they are saying.
 

Crazy Lunatic

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Epsilon said:
You do nothing but troll and try to pass off your opinions as facts.

I do nothing but troll, eh? Nice use of stating your opinion as fact. Nice try though.
 

David A. Rainer

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mudcrutch79 said:
Deathfromabove,

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

Immigration or otherwise, I think impasse is definitely a viable option. However, it might not be a wise option as I think it might actually create a back-lash affect and turn public opinion towards the players. You have billionaire owners trying to strong-arm millionaire players by putting on bad hockey? I think many fans will begin to think that some sort of compromise should be reached even if it does not fix the long-term issues affecting the league only because they are sick of hearing about labor issues. Right now, impasse is just negotiating leverage but it is definitely viable.

What do you think? Impasse and replacement players good or bad for the long-term health of the league?
 

codswallop

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DeathFromAbove said:
Immigration or otherwise, I think impasse is definitely a viable option. However, it might not be a wise option as I think it might actually create a back-lash affect and turn public opinion towards the players. You have billionaire owners trying to strong-arm millionaire players by putting on bad hockey? I think many fans will begin to think that some sort of compromise should be reached even if it does not fix the long-term issues affecting the league only because they are sick of hearing about labor issues. Right now, impasse is just negotiating leverage but it is definitely viable.

What do you think? Impasse and replacement players good or bad for the long-term health of the league?

My thinking is that the NHL has positioned themselves so that impasse is an option. It's obviously not what they want, more of a last resort in the overall contingency plan.

My legal knowledge on the subject is limited, but I believe that the route to impasse is sketchy at best. The owners could win the decision, but the chances are equal or more likely that they may lose. Or the process could be dragged out for quite a while, helping absolutely no one in terms of getting what they ultimately desire. Not exactly the most efficient road towards your goals.

For the time being, the option of impasse and subsequentally bringing on replacements is a part of the negotiations. Regardless of how small the likelihood of the owners coming out on top of this issue is, it still exists.

Unfortunately for us, it kinda seems as though the core issues of this debate aren't the only items we have to watch for. That's a damn shame, but not all that surprising. Nobody ever said big business was fair and equitable.
 
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Tom_Benjamin

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mudcrutch79 said:
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?

I think this is a really interesting question. I have no idea how the NHL will manage these post non-season issues like the draft and qualifying offers. Impasse is a tempting solution.

Still, I think I make the call in September if I am going to do it (and I don't think they will.) Why? Because this whole replacement player thing doesn't work unless they break the strike. If they call it in September, they get their chance before the NLRB rules which may take months. If they have broken the strike, they cut a somewhat improved deal with the broken NHLPA and the NLRB hearing is rendered moot.

If they haven't broken the strike, they will be looking for a way out, and the NLRB may give them one. About 15% of the players will have a contract next season, so the costs may not be that bad if they lose an NLRB hearing in December. I've even imagined them tanking a hearing if they can't break the players with replacements.

The most attractive thing about the impasse strategy is the ability to control the timing. Even if they are not really at impasse, the NHL can have a shot at replacements if they want. It's still ridiculous in my view.

I honestly have no idea where the NHL is going from here. They have to know they are going to have to start to fight lawsuits. What on earth are they going to do about qualifying offers? Do they make them? If they don't, isn't 85% of the league a free agent? If they make them, won't at least one player turn it down and sue to become a free agent?

It boggles the mind what the league is doing here. I don't think they have a clue about any of the consequences. Oh, they have expensive advice, but there are so many issues and so few precedent it is all a fog. I've tried to trace through some possibilities and nothing seems to be a sure thing to me.

You would think they would have mapped out each possibility and developed contingencies for every possible move and countermove, but I can't find an end game for them. Did they expect the players to cave, they'd have a season and now there is no Plan B? Are they nuts? What's the next move?

They can't do nothing. They cancel the season. Then what? What are they going to do with the unsigned Juniors? What are they going to do in the absence of a draft? What are they going to do about qualifiers?

Tom
 

Wetcoaster

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Crazy Lunatic said:
You really should look at a calendar, pal. My statement stems from the NBA players association executive director, where do you get your bullsh*t? 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.
Having actually read the ruling by Mr. Justice Breyer in the Brown case, I fail to see how it can possible stand for the proposition you claim. It is a labour exemption case. I trust you have actually read the case and understand what a labour exemption from antitrust is.

The Brown case is in the same line of cases as the Dale McCourt case against the NHL and the NBPA case filed on behalf of Junior Bridgeman which also focused upon the issue of a labour exemption from antitrust.

The ratio of the cases is that as long as you have a CBA with a players' union the owners are exempt from antitrust law. However we are talking about what happens at impasse where the NLRB can set aside the owner imposed CBA (therefor no CBA) or the union decertifies as the NFL did and as the NBA threatened to do led by Michael Jordan and Patrick Ewing.

In the NBA case the NBAPA was seeking to have the right of first refusal terminated and fighting the NBA attempt to harden the cap by removing the various exceptions such as the Larry Bird exception. The NBAPA had all the players sign a decertification notice and Larry Fleisher walked into the negotiations and slapped it down in front of Stern and his general counsel, Gary Bettman. They backed down.

As long as there is a valid CBA Justice Breyer ruled the union could not concurrently use antitrust law and labour law - the union must choose one or the other. If you reach impasse and CBA is imposed then the owners have protection from antitrust law but only so long as the NLRB does not void the impasse declaration or the union does not decertify.

That is all the Brown case stands for - no more and no less.
 

Wetcoaster

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Tom_Benjamin said:
I think this is a really interesting question. I have no idea how the NHL will manage these post non-season issues like the draft and qualifying offers. Impasse is a tempting solution.

Still, I think I make the call in September if I am going to do it (and I don't think they will.) Why? Because this whole replacement player thing doesn't work unless they break the strike. If they call it in September, they get their chance before the NLRB rules which may take months. If they have broken the strike, they cut a somewhat improved deal with the broken NHLPA and the NLRB hearing is rendered moot.

If they haven't broken the strike, they will be looking for a way out, and the NLRB may give them one. About 15% of the players will have a contract next season, so the costs may not be that bad if they lose an NLRB hearing in December. I've even imagined them tanking a hearing if they can't break the players with replacements.
Tom

Hi Tom

There may be a bit of a fly in the ointment for the owners in respect of potential financial liability as I understand it.

If the owners lose at impasse (or "Tank" the case), the problem is that there was no valid CBA in place because the imposed CBA is voided. Now that is no problem in terms of damages for players under contract, they clearly are entitled to be paid out per the contract since the owners would have been in an illegal position from the date of the declaration of the impasse.

The interesting thing is what happens to those players not under contract. They have been prevented from playing due to the illegal action of the owners and they could sue for lost income under various tort theories such as economic interference, etc. I suspect the damages to be calculated woud be something along the line of current salary arbitration with comparables etc. based on the previous salary regime. You would have t look at what the player would have made, factor in qualifying offers and come up with a figure. The NHL could try to argue that the player may not have been qualified or signed as a free agent but that could all be factored in the award - courts do it all the time when calculating loss of future income.

The other interesting situation would be those who elect to use antitrust law to sue. Brown would not apply since the imposed CBA will have been voided. Players could then file antitrust claims and they would be entitled to treble damages in the US. Even players who played as replacements could likely file suits since the imposed CBA with its cap is now voided and would have suppressed their salaries Since it was not lawful and it would have been voided no antitrust protection attaches. The potential financial laibilities could be immense.

Couple this with the overlapping immigration prohibitions on foreign players and factor in possible union decertification as well as the issues on the draft, qualifying offers, unsigned juniors, etc. and foggy does not begin to describe this situation.

Brian Burke on Sportstalk on CKNW radio aboout 10 days ago said something similar to your observation. What is the NHL's Plan B? Do they even have one?

IMHO from what I have seen, the NHL has not planned out the contingencies. It is almost like the owners hyped themselves up for this battle and convinced themselves that the players would cave and they would win. It seems they just never conceived they could lose this battle.
 

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Wetcoaster said:
Hi Tom

There may be a bit of a fly in the ointment for the owners in respect of potential financial liability as I understand it.

If the owners lose at impasse (or "Tank" the case), the problem is that there was no valid CBA in place because the imposed CBA is voided. Now that is no problem in terms of damages for players under contract, they clearly are entitled to be paid out per the contract since the owners would have been in an illegal position from the date of the declaration of the impasse.

The interesting thing is what happens to those players not under contract. They have been prevented from playing due to the illegal action of the owners and they could sue for lost income under various tort theories such as economic interference, etc. I suspect the damages to be calculated woud be something along the line of current salary arbitration with comparables etc. based on the previous salary regime. You would have t look at what the player would have made, factor in qualifying offers and come up with a figure. The NHL could try to argue that the player may not have been qualified or signed as a free agent but that could all be factored in the award - courts do it all the time when calculating loss of future income.

The other interesting situation would be those who elect to use antitrust law to sue. Brown would not apply since the imposed CBA will have been voided. Players could then file antitrust claims and they would be entitled to treble damages in the US. Even players who played as replacements could likely file suits since the imposed CBA with its cap is now voided and would have suppressed their salaries Since it was not lawful and it would have been voided no antitrust protection attaches. The potential financial laibilities could be immense.

Couple this with the overlapping immigration prohibitions on foreign players and factor in possible union decertification as well as the issues on the draft, qualifying offers, unsigned juniors, etc. and foggy does not begin to describe this situation.

Brian Burke on Sportstalk on CKNW radio aboout 10 days ago said something similar to your observation. What is the NHL's Plan B? Do they even have one?

IMHO from what I have seen, the NHL has not planned out the contingencies. It is almost like the owners hyped themselves up for this battle and convinced themselves that the players would cave and they would win. It seems they just never conceived they could lose this battle.


Wetcoaster, are you a student in law school or an agent or lawyer working on behalf of players? I have a job that allows me to sit back and spend a couple hours a day either at work or on the road reading all this stuff but what practising lawyer has the hours that you put into reading and posting all the information you provide?

The reason I post this question is because I sense that you slant your arguements to support the NHLPA and the players position, hence, I think that you leave a lot of information out of the research that you post. Also, how many lawyers spend as much time researching precedence on both sides of the border unless their current job requires them to? Just a hunch on my part. Agent????
 

Crazy Lunatic

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eye said:
Wetcoaster, are you a student in law school or an agent or lawyer working on behalf of players? I have a job that allows me to sit back and spend a couple hours a day either at work or on the road reading all this stuff but what practising lawyer has the hours that you put into reading and posting all the information you provide?

The reason I post this question is because I sense that you slant your arguements to support the NHLPA and the players position, hence, I think that you leave a lot of information out of the research that you post. Also, how many lawyers spend as much time researching precedence on both sides of the border unless their current job requires them to? Just a hunch on my part. Agent????

He obviously knows a lot more about the law than 99% of people on these boards (including myself) but he gives the impression that any league intent on implementing a salary cap will have their offices raided by the FBI and every owner thrown in jail. All of my legal opinions were formed by listening to people that I would have no reason not to trust (NBA players association executive director, former NLRB member under Clinton, many journalists) all of whom say impass and implementation may be tricky but are definitely a very real possibility. These same people say decertification is not a sound option for the PA either as antitrust law is murky right now in the US (despite what wetcoaster says).
 

grego

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Wetcoaster never claimed to have researched ever detail of what would happen, to the extent that he felt he was qualified to go and argue the case. He was just gving highlights from what I could find there, to different arguments that could be made. Many of them are a toss up either way how it could go.

Either way, with almost anything regarding the legal process it is nothing that would be desired that much for either side to use in this situation. The legal process can take much longer to settle things then any fan would like. If you think the past few months have been slow you should see how long it could take to settle anything between all the lawyers the NHL and NHLPA would have.

We shouldn't be looking for courts to settle this issue either, as it could take years for them to finalize the entire issue. It could take less time then that, but you never know with the courts, especially when it covers 2 countries and differences in provincial law.
 

Tom_Benjamin

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Wetcoaster said:
Brian Burke on Sportstalk on CKNW radio aboout 10 days ago said something similar to your observation. What is the NHL's Plan B? Do they even have one?

Apparently not. Once you throw impasse and implementation out the window as too impractical and too risky, there is nothing left except wait. Fast forward a year and we are in the same place. What then?

IMHO from what I have seen, the NHL has not planned out the contingencies. It is almost like the owners hyped themselves up for this battle and convinced themselves that the players would cave and they would win. It seems they just never conceived they could lose this battle.

Maybe. This relies on the belief that the NHL collective is stupid very nearly beyond belief. The best option for the league is clearly to cave.

Tom
 

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eye said:
The reason I post this question is because I sense that you slant your arguements to support the NHLPA and the players position, hence, I think that you leave a lot of information out of the research that you post. Also, how many lawyers spend as much time researching precedence on both sides of the border unless their current job requires them to? Just a hunch on my part. Agent????

This is the weakest ad hominem I've ever seen, in an adult lifetime of surfing the net.

Wetcoaster, your arguments are too well researched and well grounded. Shame on you! ;)
 

Slats432

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Other Dave said:
This is the weakest ad hominem I've ever seen, in an adult lifetime of surfing the net.

Wetcoaster, your arguments are too well researched and well grounded. Shame on you! ;)
I think the point of the post was that the research is only done to support one side of the argument while suggesting one is unbiased.(Not that I have the same opinion...)

Personally, although I side with systemic change....there is tons of evidence to support the stupidity of the owners. :)
 

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eye said:
Wetcoaster, are you a student in law school or an agent or lawyer working on behalf of players? I have a job that allows me to sit back and spend a couple hours a day either at work or on the road reading all this stuff but what practising lawyer has the hours that you put into reading and posting all the information you provide?

Good to see Eye back to his old tricks.
 

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Tom_Benjamin said:
Apparently not. Once you throw impasse and implementation out the window as too impractical and too risky, there is nothing left except wait. Fast forward a year and we are in the same place. What then?
That's my theory. The only tool in the owners bag is economic pressure - i.e. how long are the players willing to go without their salary..

GB is in a horrible position right now.

He's done good with the PR war (see this board) but those gains could fade away if he doesn't make an official announcement on this season. STH's are sick of the delay and want their money back. On the other hand, if he does cancel the season, he gets a crummy legacy and sees the value and future earning potential of his 30 franchises plummet.

Impasse & implementation is a dead end. It gains very little, creates huge financial risks, and is extremely uncertain. Franchise values would fall even farther.

His sole strategy has been sit & wait for the players to run out of money.
 

Wetcoaster

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eye said:
Wetcoaster, are you a student in law school or an agent or lawyer working on behalf of players? I have a job that allows me to sit back and spend a couple hours a day either at work or on the road reading all this stuff but what practising lawyer has the hours that you put into reading and posting all the information you provide?

The reason I post this question is because I sense that you slant your arguements to support the NHLPA and the players position, hence, I think that you leave a lot of information out of the research that you post. Also, how many lawyers spend as much time researching precedence on both sides of the border unless their current job requires them to? Just a hunch on my part. Agent????
As I have noted before I have worked in hockey at the NHL level and the international level. I represented a number of players as an agent and also some hockey teams and organizations as well as numerous people in the entertainment industry (actors, directors, produccers, studios, record companies, etc.). I have been on both the labour and management sides in labour law disputes. I have also been a commentator and expert for the media on sports law issues. I know and have dealt with a number of the current actors in this lockout including owners (past and present), the NHLPA and numerous team executives as well as many media types. I received my law degree in the mid-1980's after my first career so have about 20 years at this.

Considering that posts seem to run about 80-20 in favour of ownership - the owners' position seems well represented.

If I was practising I would not have a lot of time but since I was diagnosed with cancer and am unable to practise, that leaves me a lot of spare time at the moment. I did not have the time in the past. I am also writing a screen play based on an incident which took place on board a Canadian naval vessel in the Korean war. I am reviewing and editing a colleague's draft legal textbook on immigration issues as I have many years dealing in that area and I still consult for lawyers who have complex immigration problems. I have taught in this area at law school and in seminars (CLE's) for legal practitioners in Canada and the US and I am an expert on NAFTA immigration provisions.

Hopefully when I recover I will go back and practise law again. God willing.

I have looked for a study that actually suports a cap as proposed by Bettman but I have not found one. OTOH I have found numerous studies and academic criticisms of a cap. Just repeating "a cap is good" without providing any evidence to back up the position seems to me to be leaving a lot out of the information being posted.

My position is that a cap is not required to get the job done and I back up my position with cogent arguments - not one-liners.

Does that adequately cover your concerns?
 

Wetcoaster

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Crazy Lunatic said:
He obviously knows a lot more about the law than 99% of people on these boards (including myself) but he gives the impression that any league intent on implementing a salary cap will have their offices raided by the FBI and every owner thrown in jail.
I have never said any such thing.
 

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Wetcoaster said:
If I was practising I would not have a lot of time but since I was diagnosed with cancer and am unable to practise, that leaves me a lot of spare time at the moment. I did not have the time in the past.

Speedy recovery to you and all the best.
 

eye

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Wetcoaster said:
As I have noted before I have worked in hockey at the NHL level and the international level. I represented a number of players as an agent and also some hockey teams and organizations as well as numerous people in the entertainment industry (actors, directors, produccers, studios, record companies, etc.). I have been on both the labour and management sides in labour law disputes. I have also been a commentator and expert for the media on sports law issues. I know and have dealt with a number of the current actors in this lockout including owners (past and present), the NHLPA and numerous team executives as well as many media types. I received my law degree in the mid-1980's after my first career so have about 20 years at this.

Considering that posts seem to run about 80-20 in favour of ownership - the owners' position seems well represented.

If I was practising I would not have a lot of time but since I was diagnosed with cancer and am unable to practise, that leaves me a lot of spare time at the moment. I did not have the time in the past. I am also writing a screen play based on an incident which took place on board a Canadian naval vessel in the Korean war. I am reviewing and editing a colleague's draft legal textbook on immigration issues as I have many years dealing in that area and I still consult for lawyers who have complex immigration problems. I have taught in this area at law school and in seminars (CLE's) for legal practitioners in Canada and the US and I am an expert on NAFTA immigration provisions.

Hopefully when I recover I will go back and practise law again. God willing.

I have looked for a study that actually suports a cap as proposed by Bettman but I have not found one. OTOH I have found numerous studies and academic criticisms of a cap. Just repeating "a cap is good" without providing any evidence to back up the position seems to me to be leaving a lot out of the information being posted.

My position is that a cap is not required to get the job done and I back up my position with cogent arguments - not one-liners.

Does that adequately cover your concerns?


Thanks for taking the high road in responding to my post. I wish Goodenow and Bettman would do the same. I am humbled by your response. Thank you and please continue to enlighten all of us with your insight.
 

Greschner4

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Crazy Lunatic said:
He backs up his statements using 25 year old court decisions that have been contradicted by newer Supreme Court decisions. He acts as if antitrust law is crystal clear as it relates to professional sports and that is just plain wrong. But I'm sure he knows more than the NHLs team of lawyers. My question is what is this dude going to say when impass is declared and replacements are brought in?

for what it's worth, nothing is black and white enough in the law to be cited as clear proof of the right answer ... a good lawyer can always distinguish the current situation with the situation involved in the decided cases. This is especially true in the NHL situation where you have the laws of two countries and a bunch of provinces involved.

There's no question that the NHL has had its lawyers tee this up for impasse and replacement players or that those lawyers have been working on doing so for many months. So if the NHL seems to be heading toward impasse, that's a pretty good indication that the lawyers think they can pull it off, thoughtful messages on these boards notwithstanding.
 

Greschner4

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DeathFromAbove said:
Immigration or otherwise, I think impasse is definitely a viable option. However, it might not be a wise option as I think it might actually create a back-lash affect and turn public opinion towards the players. You have billionaire owners trying to strong-arm millionaire players by putting on bad hockey? I think many fans will begin to think that some sort of compromise should be reached even if it does not fix the long-term issues affecting the league only because they are sick of hearing about labor issues. Right now, impasse is just negotiating leverage but it is definitely viable.

What do you think? Impasse and replacement players good or bad for the long-term health of the league?

Good, because there won't be a lot of "replacement players" a month into the season anyway. At least half the league will be union guys.
 

Greschner4

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Crazy Lunatic said:
He obviously knows a lot more about the law than 99% of people on these boards (including myself) but he gives the impression that any league intent on implementing a salary cap will have their offices raided by the FBI and every owner thrown in jail. All of my legal opinions were formed by listening to people that I would have no reason not to trust (NBA players association executive director, former NLRB member under Clinton, many journalists) all of whom say impass and implementation may be tricky but are definitely a very real possibility. These same people say decertification is not a sound option for the PA either as antitrust law is murky right now in the US (despite what wetcoaster says).

And realistically, an antitrust case would take years to make it through the courts, so it's not that great an option.
 
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