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

[Wetcoaster]

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.

He is not correct that a salary cap must always be collectively bargained if that is what he actually said. Conway knows his stuff so I suspect that the person misunderstood what he was saying.

The NHL would have a cap as part of an imposed CBA (i.e the NHL's last best final offer) after an impasse declaration as a temporary measure so it can be done without the NHLPA accepting it and in compliance with antitrust law as long as the labour dispute continues. However if the NHLPA then decertifies, the imposed CBA evaporates and the NHL is then subject to the vagaries of antitrust law and all that may entail as happened with the NFL.

 

[mudcrutch79]

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

I really don't see how you could determine this to be bargaining in bad faith. The whole point of lockouts/strikes is to enable the sides to be able to bring economic pressure to bear on the other side. If a side is no longer able to impose economic pressure, then I can't see how you could infer bad faith from the lifting of a lockout. Moreover, it seems that most sensible people have concluded that the NHL isn't going the impasse route.

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.

Exactly.

 

[Wetcoaster]

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

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.

If they players strike then there could be no draft because the CBA is not in force.

CBA's continue even if not formally extended as long as there is neither a lockout or strike. I am not sure what the law is where the employer has locked out and then lifts the lockout - it may well be the CBA is not revived.

It does not work that way - the NLRB does not have that sort of authority.

I suppose the NHL could go to the courts for some sort of declaratory order but I am not sure that the courts would be pre-disposed to grant such an order given that it is discetionary and there is agood case to be made that the NHL is not before the courts with "clean hands".

Yes that is the usual pay periods but by having the lockout while the contracts were in payable and then ending the lockout when they are not would seem to give rise to some sort of equitable relief or claim. At the very least the NHL would not be looked upon with great favour by the courts or the NLRB.

 

[PecaFan]

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.

In how many of those cases was the business shut down for a complete year, and over two billion dollars of revenue lost?

 

[SENSible1*]

Well look at that.

AWARD winning author Russ Conway has a BASIC fact wrong.

 

[Weary]

He is not correct that a salary cap must always be collectively bargained if that is what he actually said. Conway knows his stuff so I suspect that the person misunderstood what he was saying.

The NHL would have a cap as part of an imposed CBA (i.e the NHL's last best final offer) after an impasse declaration as a temporary measure so it can be done without the NHLPA accepting it and in compliance with antitrust law as long as the labour dispute continues. However if the NHLPA then decertifies, the imposed CBA evaporates and the NHL is then subject to the vagaries of antitrust law and all that may entail as happened with the NFL.

I think terminology may be the root of the problem here. There is no such thing as an "imposed CBA." The A in stands for agreement. There isn't a CBA until both sides agree to terms. If an impasse is reached the league could impose their final proposal.

The league's final proposal can only contain terms that were collectively bargained prior to the impasse. They don't have to be terms that were bargained to agreement. For instance, the league could not impose a rule that European players must pay their own transfer fees since they did not address that subject during collective bargaining.

A salary cap has been a subject of the collective bargaining. So even though it was not bargained to agreement, it could still be part of the imposed proposal. Had the league not addressed a salary cap during collective bargaining, they would not be able to impose one.

"A salary cap cannot be implemented unless it has been collectively bargained" is a factually correct statement.

 

[CGG]

No you are degrading the replacement players seriously here. You can bet a lot of up and coming players who are drafted but haven't earned any money on contracts yet will cross the line for the contracts teams will be offering. The leagues average age woul liely drop by 2-3 years as teams let youngsters play the game.

Players who you would likely see are all on the top 50 prospects lists. These players haven't earned million or even thousands yet and the NHLPA was willing to sell tehm under the bridge anyways so why not screw tehm right back.

Please, I beg you, read the following story before continuing to declare that a replacement NHL would be chalk full of top prospects and youngsters.

Toronto Star Article

Even if you choose to ignore the scads of arguments that show that only Canadian players could play for Canadian teams (those teams allowed to operate in Canada at least) and only American players can play for US teams, know that a total of 4 players out of 37 for St John's and Hamilton said they would cross a picket line for $500,000 a year.

 

[Wetcoaster]

In how many of those cases was the business shut down for a complete year, and over two billion dollars of revenue lost?

I do not know. So there is a research project for you.

 

[Wetcoaster]

I think terminology may be the root of the problem here. There is no such thing as an "imposed CBA." The A in stands for agreement. There isn't a CBA until both sides agree to terms. If an impasse is reached the league could impose their final proposal.

The league's final proposal can only contain terms that were collectively bargained prior to the impasse. They don't have to be terms that were bargained to agreement. For instance, the league could not impose a rule that European players must pay their own transfer fees since they did not address that subject during collective bargaining.

A salary cap has been a subject of the collective bargaining. So even though it was not bargained to agreement, it could still be part of the imposed proposal. Had the league not addressed a salary cap during collective bargaining, they would not be able to impose one.

"A salary cap cannot be implemented unless it has been collectively bargained" is a factually correct statement.

Actually there is an imposed CBA under the US impasse declaration process and it must be a CBA (although it is not in fact collectively bargained) to obtain antitrust protection for the owners.

 

[Wetcoaster]

Well look at that.

AWARD winning author Russ Conway has a BASIC fact wrong.

Or the original poster did not fully comprehend what was actually said which is much more likely.

 

[Weary]

Actually there is an imposed CBA under the US impasse declaration process and it must be a CBA (although it is not in fact collectively bargained) to obtain antitrust protection for the owners.

There is no such thing as an "imposed CBA." When you enter that phrase into Google it turns up 52 hits. Every one of those hits is related to the current NHL-NHLPA dispute. There cannot be a Collective Bargaining Agreement when one side doesn't agree. But a decent number of NHL fans seem to think otherwise.

You can call it an "imposed plan" or "imposed offer" or many other things. But an "imposed CBA" it is not.

 

[Wetcoaster]

There is no such thing as an "imposed CBA." When you enter that phrase into Google it turns up 52 hits. Every one of those hits is related to the current NHL-NHLPA dispute. There cannot be a Collective Bargaining Agreement when one side doesn't agree. But a decent number of NHL fans seem to think otherwise.

You can call it an "imposed plan" or "imposed offer" or many other things. But an "imposed CBA" it is not.

That is what it is referred to in the case law.

 

[Kickabrat]

However if the NHLPA then decertifies, the imposed CBA evaporates and the NHL is then subject to the vagaries of antitrust law and all that may entail as happened with the NFL.

Question for Westcoaster.

If the NHLPA de-certifies could it not open the door for replacement players to form a "NHL Replacement Player Assoc." which could then collectively bargian a CBA with the NHL which would allow the NHL to start up again with whatever players decided to join the NHLRPA?

 

[Epsilon]

Question for Westcoaster.

If the NHLPA de-certifies could it not open the door for replacement players to form a "NHL Replacement Player Assoc." which could then collectively bargian a CBA with the NHL which would allow the NHL to start up again with whatever players decided to join the NHLRPA?

"House unions" are illegal under US labour law.

 

[PecaFan]

"House unions" are illegal under US labour law.

It's not a house union if the NHL has nothing to do with the replacements forming a union.

 

[Wetcoaster]

Question for Westcoaster.

If the NHLPA de-certifies could it not open the door for replacement players to form a "NHL Replacement Player Assoc." which could then collectively bargian a CBA with the NHL which would allow the NHL to start up again with whatever players decided to join the NHLRPA?

Not likely.

If the NHL decertifies they would head back to work and use antitrust law to fight on. A union requires a majority of the players to vote in favour. In the NFL case they continued on until they won then they reconstituted the union.

 

[SENSible1*]

It's not a house union if the NHL has nothing to do with the replacements forming a union.

A few non-affiliated individuals could conduct a letter writing campaign to make the replacement players aware of the benefits of controlling the next PA. I'm sure some agents and or people wanting to enter the field could figure out a way to help them organize themselves.

The NHL needn't lift a finger to see this come to fruition.

 

[Wetcoaster]

A few non-affiliated individuals could conduct a letter writing campaign to make the replacement players aware of the benefits of controlling the next PA. I'm sure some agents and or people wanting to enter the field could figure out a way to help them organize themselves.

The NHL needn't lift a finger to see this come to fruition.

And they would be outvoted.

 

[SENSible1*]

Not likely.

If the NHL decertifies they would head back to work and use antitrust law to fight on. A union requires a majority of the players to vote in favour. In the NFL case they continued on until they won then they reconstituted the union.

Head back to work how??

The majority are without a contract.

If replacement players have taken their positions in the meantime, the NHL is under no obligation to re-hire PA members.

They may choose to bring back some to help sell tickets, but that doesn't mean that current PA members would be in the majority, especially initially when the new PA is forming.

 

[SENSible1*]

And they would be outvoted.

How will the replacements be outvoted when they are in the majority?

 

[Wetcoaster]

How will the replacements be outvoted when they are in the majority?

???????

If the union decertitifies and decides to fight on the antitrust turf as the NFL did they will be in the majority. They will not be replacement players because the impasse declaration evaporates with the union decertification along with the imposed CBA.

The former NFLPA members simply retained the former NFLPA executive and legal counsel on a personal basis.

 

[SENSible1*]

???????

If the union decertitifies and decides to fight on the antitrust turf as the NFL did they will be in the majority. They will not be replacement players because the impasse declaration evaporates with the union decertification along with the imposed CBA.

The former NFLPA members simply retained the former NFLPA executive and legal counsel on a personal basis.

You are assuming the NHL will re-hire this group of players once they decertify.

That is by no means a given.

In fact, it is in the NHL's best interests to ensure they are in the minority.

 

[Mess]

You are assuming the NHL will re-hire this group of players once they decertify.

That is by no means a given.

In fact, it is in the NHL's best interests to ensure they are in the minority.

If they decertify .. The NHL will have 750 UFA players on its hands ..

I bet you some Big Market Teams in Hockey Cities would love to snap up the Best Players ..

This will prove to Bettman that not even the players want to play in Non-Traditional Hockey markets ..

 

[Wetcoaster]

You are assuming the NHL will re-hire this group of players once they decertify.

That is by no means a given.

In fact, it is in the NHL's best interests to ensure they are in the minority.

Pretty safe assumption to make since these are the top 750 players in the world.

Even in the NFL with its larger pool of players virtually every NFLPA player was back in the NFL. Most of the scrubs were scrubbed.

If the NHL refused to sign players based on former union affiliation as you suggest, you would see a welter of legal actions.

 

[Mess]

Pretty safe assumption to make since these are the top 750 players in the world.

Even in the NFL with its larger pool of players virtually every NFLPA player was back in the NFL. Most of the scrubs were scrubbed.

If the NHL refused to sign players based on former union affiliation as you suggest, you would see a welter of legal actions.

Al Strachan Article had this comment :

Furthermore, if the NHL were somehow to get the right to use replacements, it would want each team to be able to retain the rights to its players. It wouldn't want them waltzing off as total free agents upon the terminations of each contract.
Again, that's illegal if it is done unilaterally. The NLRB isn't going to allow the NHL to implement a system that is illegal.

http://slam.canoe.ca/Slam/Columnists/Strachan/2005/01/14/898401.html

My question if you know .. My understanding that replacement players can be anyone the NHL choses ..

Is it not possible if in an Impasse situation and Players Strike that say Joe Sakic could cross and play for his Home Town Canucks rather then Colorado ??