Russ Conway: NHL can't implement a cap without the union

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Egil

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A few questions:

#1 Could the NHL have an "optional" draft? Sidney Crosby and SOME of the top picks may skip out and sign as UFA's, but I think most players would volunatirly enter a draft. This would not be restraint of trade (the player can skip), while still allowing teams to draft players (which is a mutually beneficial arangement)?

#2 Could the NHL restructure itself such that ALL player contracts are signed from the NHL head office, with player rights being "loaned" out to teams based on a set of rules (so you could still have trades and such)? Would this not get around the collusion problem, as well as many other legal hurdles? Is their anything that would stop the NHL from doing this?

#3 To get around the draft even further, if the NHL re-organized and had centralized contract negotiations, could they not then implement a draft based on signed NHL (and minor league players on 2 way contracts) players?

BTW, the centralized contract scheme WAS proposed by the NHL in the summer. While I am not sure on all the legal rammifications of it. Is this not a succesful counter to the PA should they try decertification (where you would essentially have everyone as a UFA)?
 

Weary

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The problem is that the NHL has locked out its players. You can't say: "We're locking out these players -- but these guys over here aren't locked out."

The league has also made it obvious that draft provisions are a collective bargaining subject. I don't think they'd be able to have one during a lockout.
 

tritone

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Question I've forwarded in other threads concerning the whole legal mess.

Do any of you honestly think the NHL has not examined every possibility of Impasse/Cap implementation etc ????

They will do it and they will know every loophole and possible avenue to get there.

We can all sit here and find every single tidbit of legal glitch but in the end the OWNERS HAVE MONEY and LAWYERS . They will get it done when they need/want it done .
 

hockeytown9321

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I find it really amusing that some people are so unwaveringly against the players they try to come up with ways for the NHL to break the law without getting caught.
 

Wetcoaster

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tritone said:
Question I've forwarded in other threads concerning the whole legal mess.

Do any of you honestly think the NHL has not examined every possibility of Impasse/Cap implementation etc ????

They will do it and they will know every loophole and possible avenue to get there.

We can all sit here and find every single tidbit of legal glitch but in the end the OWNERS HAVE MONEY and LAWYERS . They will get it done when they need/want it done .
So did MLB and a lot more money and legal talent than the NHL - look what happened.

Impasse declarations are upheld in less than 10% of cases - the NLRB favours collective bargaining so the test and bar for an impasse declaration are set very high.

You also have to factor in the six Canadian teams and the differing provincial labour jurisdictions - remember there is no impasse decalration procedure in cnada and there are prohibitions on replacement players in BC and Quebec and poossibly in Ontario if the proposed legislation is passed re-imposing the ban that prevented the Blue Jays from using replacement players in 1994.

Finally there are the constraints on foreign nationals due to immigration laws which certainly was not an issue in the baseball strike to any great extent.

Remember the huge financial penalties that face the owners if they get it wrong.
 

tritone

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Wetcoaster said:
So did MLB and a lot more money and legal talent than the NHL - look what happened.

Impasse declarations are upheld in less than 10% of cases - the NLRB favours collective bargaining so the test and bar for an impasse declaration are set very high.

You also have to factor in the six Canadian teams and the differing provincial labour jurisdictions - remember there is no impasse decalration procedure in cnada and there are prohibitions on replacement players in BC and Quebec and poossibly in Ontario if the proposed legislation is passed re-imposing the ban that prevented the Blue Jays from using replacement players in 1994.

Finally there are the constraints on foreign nationals due to immigration laws which certainly was not an issue in the baseball strike to any great extent.

Remember the huge financial penalties that face the owners if they get it wrong.
And like I said , we can all sit here and debate the legal tidbits BUT...NHL certainly remembers what happened with MLB and I'm pretty sure they made the proper moves to ensure it doesn't happen in their case.
All I'm saying is the Owners will get what they want eventually.
 

Wetcoaster

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Egil said:
A few questions:

#1 Could the NHL have an "optional" draft? Sidney Crosby and SOME of the top picks may skip out and sign as UFA's, but I think most players would volunatirly enter a draft. This would not be restraint of trade (the player can skip), while still allowing teams to draft players (which is a mutually beneficial arangement)?

#2 Could the NHL restructure itself such that ALL player contracts are signed from the NHL head office, with player rights being "loaned" out to teams based on a set of rules (so you could still have trades and such)? Would this not get around the collusion problem, as well as many other legal hurdles? Is their anything that would stop the NHL from doing this?

#3 To get around the draft even further, if the NHL re-organized and had centralized contract negotiations, could they not then implement a draft based on signed NHL (and minor league players on 2 way contracts) players?

BTW, the centralized contract scheme WAS proposed by the NHL in the summer. While I am not sure on all the legal rammifications of it. Is this not a succesful counter to the PA should they try decertification (where you would essentially have everyone as a UFA)?

These actions would likely be considered collusive behaviour if it did not have the union on-side.

Centralized contracts would be a violation by definition because you have pretty much eliminated competition which is what antitrust law is designed to promote.

The way to avoid antitrust law is to negotiate a deal with the union.

Breach of antitrust law in the US carries a treble damage award so the financial downside could be very steep.
 

tritone

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hockeytown9321 said:
I find it really amusing that some people are so unwaveringly against the players they try to come up with ways for the NHL to break the law without getting caught.

If this is directed at my post then you've certainly misconstrued what I'm saying.
 

Wetcoaster

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tritone said:
And like I said , we can all sit here and debate the legal tidbits BUT...NHL certainly remembers what happened with MLB and I'm pretty sure they made the proper moves to ensure it doesn't happen in their case.
All I'm saying is the Owners will get what they want eventually.
MLB was a lot more flexible and moved much further than the NHL has to date. Thus far the NHL has not appeared to have bargained in good faith.

I just do not see an impasse declaration as a viable option and IMHO the NHL gave it up when it released the owners and executives from the gag order and let them loose to pressure the players into contacting Goodenow and pushing him to do a deal. You just do not do that.

If you think there were not numerous potential unfair labour practise charges arising out of that action, you also probably think that Bob Pulford and Mike Milbury are geniuses.
 

tritone

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Wetcoaster said:
MLB was a lot more flexible and moved much further than the NHL has to date. Thus far the NHL has not appeared to have bargained in good faith.

I just do not see an impasse declaration as a viable option and IMHO the NHL gave it up when it released the owners and executives from the gag order and let them loose to pressure the players into contacting Goodenow and pushing him to do a deal. You just do not do that.

If you think there were not numerous potential unfair labour practise charges arising out of that action, you also probably think that Bob Pulford and Mike Milbury are geniuses.

Hey beat that dead horse a little more
 

mudcrutch79

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tritone said:
And like I said , we can all sit here and debate the legal tidbits BUT...NHL certainly remembers what happened with MLB and I'm pretty sure they made the proper moves to ensure it doesn't happen in their case.
All I'm saying is the Owners will get what they want eventually.

MLB knew all of this stuff too, and they didn't get their impasse. Their owners specifically didn't get what they wanted. Don't forget that the union has money and lawyers as well, and they have undoubtedly spent a great deal of both in preparing for this.
 

mudcrutch79

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As far as the draft goes Wetcoaster, wouldn't the logical move for the NHL be to simply end the lockout June 1? That lets them proceed with the draft and QO's, sign junior players who need to be signed, and generally get on with their lives. They might win a few arbitration cases for a change-pretty tough to argue you deserve more after a season of 0 games. If there is no CBA negotiated by Sept. 15-lock the doors again.
 

Wetcoaster

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tritone said:
Hey beat that dead horse a little more
No problem.
:deadhorse

You have your (uninformed) opinion and I have my (informed) opinion :joker:
 

me2

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Weary said:
The problem is that the NHL has locked out its players. You can't say: "We're locking out these players -- but these guys over here aren't locked out."

The league has also made it obvious that draft provisions are a collective bargaining subject. I don't think they'd be able to have one during a lockout.

Cancel the lockout after the season.
run the draft.
restart the lockout.
 

Wetcoaster

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mudcrutch79 said:
As far as the draft goes Wetcoaster, wouldn't the logical move for the NHL be to simply end the lockout June 1? That lets them proceed with the draft and QO's, sign junior players who need to be signed, and generally get on with their lives. They might win a few arbitration cases for a change-pretty tough to argue you deserve more after a season of 0 games. If there is no CBA negotiated by Sept. 15-lock the doors again.
The players OTOH could just strike and then it is status quo ante.

The problem with that is that they would then have to deal with the issue of qualifying offers, free agents, player signings etc. I am not sure the NHL would want to do that since they have no revenue. With player signings there are bonuses payable immediately in many cases and what do you bet every player would insist on an "Owen Nolan lockout protection clause" in the contract?

Also by removing the lockout that also re-opens arbitration, greivance procedures, etc. There are various cases that hold that such things if intiated under a valid CBA are live until dealt with. Do you not think the downside is too great????

It is an interesting idea but IMHO not workable.
 

me2

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mudcrutch79 said:
MLB knew all of this stuff too, and they didn't get their impasse. Their owners specifically didn't get what they wanted. Don't forget that the union has money and lawyers as well, and they have undoubtedly spent a great deal of both in preparing for this.


MLB lawyers didn't see things the same way the NRLB members/judges did. Specifically they failed bargain properly on items the NRLB considered mandatory and they thought were not mandatory. Given that there were a not lot of precedents for these type of sports cases it is quite believable sides were guessing the rules as they went along.

It doesn't help the MLB that neither side really bargained much either.

http://roadsidephotos.com/baseball/95-2NEWS.htm

Then there's the little matter of labor negotiations. In the 4-1/2 months since Judge Sotomayor's injunction ended the strike, the owners haven't been able to form enough of a consensus among themselves even to return to the bargaining table...though that hasn't stopped Braves President Stan Kasten, among others, from publicly blaming the players for the delay. In a delicious bit of poetic justice, though, the hard-line owners have only themselves to blame for the injunction. Although labor law would allow the owners to impose the terms of their most recent contract offer in the event of a bargaining impasse, the hard-liners weren't satisfied. Instead they tried to create Jerry Reinsdorf's dream world by force, proclaiming an absolute, unilateral right to abolish salary arbitration, rescind the anticollusion provisions under which they had three times been found liable for violating the players' rights, and require free agents to negotiate with a central management bargaining unit rather than seek the highest bidder from among the individual teams. According to the owners, these moves were legally justified because arbitration, free agency and the like weren't mandatory subjects of collective bargaining.
If their lawyers actually recommended this tactic, MLB may have a nice malpractice action: less than two weeks before the owners acted, the Second Circuit Court of Appeals, which all parties knew would hear the expected NLRB challenge, reaffirmed its 1987 decision which held that the NBA's "College Draft, Right of First Refusal, and Revenue Sharing/Salary Cap System are mandatory subjects of bargaining." NBA v. Williams, 45 F.3d 684, 691 (2d Cir. 1995). Two of the three judges who laughed the owners' emergency appeal out of court poured salt in the wound by suggesting that if the owners had settled for implementing their own proposal, they might well have won the case. Thus the overreaching of hard-line owners may have led directly to an injunction which forced them to operate in 1995 under terms worse than those offered by the players, and which forbids them from declaring another impasse without the court's permission. Meanwhile, for the first time a Senate subcommittee has voted to repeal baseball's antitrust exemption -- a bill which, if enacted, could allow the players permanently to block any salary cap or luxury tax by decertifying their union.




MLB complete f___ed up its case and in grand style. You learn more from your mistakes than from your successes. At least MLB started getting sound ground work done for what they need to discuss, what is mandatory, what isn't. They've walked through the swamp and found the patches of quicksand the hard way. At least some of them are flagged for the next man through.


Now it beggars believe that the NHL would not have learnt from this. They would have discussed mandatory issues with the NHLPA. We know they've bargained about arbitration, free agency and a raft of other things. We know Damphousse was quite determined to fight on these issues at the last meeting. Impasse on these issues, anyone? This is much better for the NHL case if it decides to go ahead with impasse. I think they will want to make sure they have more i's dotted and t's crossed as they revert their offer back to a lower cap or a linkage based over. More negotiations to come before any impasse. May/June at the absolute earliest.
 

me2

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Wetcoaster said:
The players OTOH could just strike and then it is status quo ante.

The problem with that is that they would then have to deal with the issue of qualifying offers, free agents, player signings etc. I am not sure the NHL would want to do that since they have no revenue. With player signings there are bonuses payable immediately in many cases and what do you bet every player would insist on an "Owen Nolan lockout protection clause" in the contract?

Also by removing the lockout that also re-opens arbitration, greivance procedures, etc. There are various cases that hold that such things if intiated under a valid CBA are live until dealt with. Do you not think the downside is too great????

It is an interesting idea but IMHO not workable.


Wonder what happens if the reintroduce the lockout before June 30 and the QOs etc get messy? Any ideas? To me that seems like its flying a bit close to wind, abusing the the lockout principles. Still a judge might think its OK if its just to get the draft in, the draft being good for the overall health and the prospects.
 

mudcrutch79

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Wetcoaster said:
The players OTOH could just strike and then it is status quo ante.

Who cares if the players strike immediately? You don't need them until the season starts.

The problem with that is that they would then have to deal with the issue of qualifying offers, free agents, player signings etc. I am not sure the NHL would want to do that since they have no revenue. With player signings there are bonuses payable immediately in many cases and what do you bet every player would insist on an "Owen Nolan lockout protection clause" in the contract?

QO's don't cost a dime of upfront money, and by making them, the NHL could ensure that the FA status of all the RFA players doesn't become an issue in negotiations. The same goes for having a draft. Teams don't actually have to sign a player to maintain their rights-making the offer would be sufficient for those teams that don't have the money to pay out a signing bonus, or don't want to give a Nolan clause. Obviously, it would cost bonus money to sign draft picks, but it'd be a relatively small amount-I'm sure that teams are mostly concerned about their first and second rounders.

Also by removing the lockout that also re-opens arbitration, greivance procedures, etc. There are various cases that hold that such things if intiated under a valid CBA are live until dealt with. Do you not think the downside is too great????

Hmm. There is a bit of a risk there in relation to the arbitration, but again, there wouldn't be any money going out until games were actually played. The beauty thing is, as many arbitration criteria are tied to the previous season, I can't see anyone getting a raise there. There wouldn't be any players newly eligible for arbitration, or there would be very few-no one got any service time in 04-05, obviously. Are there any grievances that the players could file with the league at the moment that you're aware of?

All in all, I don't see that much downside to this. It seems an excellent way for the NHL to resolve some of the potential problems of the summer, and prevent new issues from being added to the table. I like the odds of them taking this route much more than I do the odds that they'll pursue an impasse.
 

me2

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mudcrutch79 said:
Who cares if the players strike immediately? You don't need them until the season starts.



QO's don't cost a dime of upfront money, and by making them, the NHL could ensure that the FA status of all the RFA players doesn't become an issue in negotiations. The same goes for having a draft. Teams don't actually have to sign a player to maintain their rights-making the offer would be sufficient for those teams that don't have the money to pay out a signing bonus, or don't want to give a Nolan clause. Obviously, it would cost bonus money to sign draft picks, but it'd be a relatively small amount-I'm sure that teams are mostly concerned about their first and second rounders.



Hmm. There is a bit of a risk there in relation to the arbitration, but again, there wouldn't be any money going out until games were actually played. The beauty thing is, as many arbitration criteria are tied to the previous season, I can't see anyone getting a raise there. There wouldn't be any players newly eligible for arbitration, or there would be very few-no one got any service time in 04-05, obviously. Are there any grievances that the players could file with the league at the moment that you're aware of?

All in all, I don't see that much downside to this. It seems an excellent way for the NHL to resolve some of the potential problems of the summer, and prevent new issues from being added to the table. I like the odds of them taking this route much more than I do the odds that they'll pursue an impasse.


Does it really matter since the 24% rollback seems to be coming. Whatever they get in arbitration get rolled back along with the other players contracts.
 

NYR469

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ColoradoHockeyFan said:
Anyone else listening to Mojo (Toronto, mojoradio.com)? They just had Russ Conway on, and he was making the point that the league cannot have a salary cap without a CBA and the union. If they were to open the season without a CBA and just open it up to any players, they can't have a league-wide salaray cap.

If so, what exactly is the end game for either side here? Given the myriad of other complications that go along with impasse/replacements, this doesn't seem like an attractive option at all for either side. Thoughts?

i'm not a lawyer, but my understanding is that he is 100% correct and a salary cap MUST be collectively bargained or it violates anti-trust laws. so the league can threaten impasse and implementation, but they can't really use it.

but why has no one brought this up?? is the media simply buying bettman's story as gospel?? unless there is some kind of loophole would some lawyer on the nhlpa side come out and clear it up (unless the nhlpa wants everyone to think the owners have that on the backburner)??

a few weeks ago this we first brought to my attention by hockeyrodent.com, so i tried emailing people from various leagues looking for clarification. most of them turned up with no responses, but i didn't get one response from the PHPA (which represents the players in the AHL & ECHL) and he said that the above (that a salary cap can't be implemented) is true and as far as he knew there was no loopholes, but suggested a labor lawyer might be able to provide more insight on loopholes to the anti-trust laws.

i've been trying to find someone with a legal background to clear this up but the best i can tell what conway said is true.
 

Wetcoaster

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me2 said:
Wonder what happens if the reintroduce the lockout before June 30 and the QOs etc get messy? Any ideas? To me that seems like its flying a bit close to wind, abusing the the lockout principles. Still a judge might think its OK if its just to get the draft in, the draft being good for the overall health and the prospects.
I think they would have some real problems with the NLRB - it could be determined to be bargaining in bad faith.

Also the players under contract might bring action for payment under their contracts - now that would be interesting.
 

me2

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NYR469 said:
i'm not a lawyer, but my understanding is that he is 100% correct and a salary cap MUST be collectively bargained or it violates anti-trust laws. so the league can threaten impasse and implementation, but they can't really use it.

Well that would just prompt a move back to linkage then. Or barring that, capping individual salaries at $4-5m.

but why has no one brought this up?? is the media simply buying bettman's story as gospel?? unless there is some kind of loophole would some lawyer on the nhlpa side come out and clear it up (unless the nhlpa wants everyone to think the owners have that on the backburner)??

a few weeks ago this we first brought to my attention by hockeyrodent.com, so i tried emailing people from various leagues looking for clarification. most of them turned up with no responses, but i didn't get one response from the PHPA (which represents the players in the AHL & ECHL) and he said that the above (that a salary cap can't be implemented) is true and as far as he knew there was no loopholes, but suggested a labor lawyer might be able to provide more insight on loopholes to the anti-trust laws.

i've been trying to find someone with a legal background to clear this up but the best i can tell what conway said is true.


Negotiations aren't over, they will go on for quite some time yet.
 

hockeytown9321

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mudcrutch79 said:
As far as the draft goes Wetcoaster, wouldn't the logical move for the NHL be to simply end the lockout June 1? That lets them proceed with the draft and QO's, sign junior players who need to be signed, and generally get on with their lives. They might win a few arbitration cases for a change-pretty tough to argue you deserve more after a season of 0 games. If there is no CBA negotiated by Sept. 15-lock the doors again.

Doesn't there need to be a CBA for there to be a draft?
 

me2

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Wetcoaster said:
I think they would have some real problems with the NLRB - it could be determined to be bargaining in bad faith.

That would be my first thought. I wonder if they could get NRLB permission to run the draft.

Also the players under contract might bring action for payment under their contracts - now that would be interesting.

Aren't they paid in full during the regular season? Wouldn't the amount of money they'd earn in June be $0 unless there is some bonus clauses.
 
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