SJ Mercury: NHL/NHLPA far from legal impasse

[thinkwild]

If the NHLPA decertified, the NHL could restructure to become a franchise system such as McDonalds where there are individual owner-operators whose purchasing and sales are strictly controlled through the franchiser, or even Walmart where all the teams would be owned by a single entity, the NHL, with "owners" buying shares and having a specified degree of control based on their investment. Instead of signing with individual teams, players would sign with the NHL and be assigned to franchises based on however the NHL saw fit. The NHL isn't a monopoly, as the NFL was when the NFLPA decertified. There's other pro league options for players so it's likely the NHL would enjoy the same privileges as other franchise operations. In that case, player movement, would simply be like Walmart transferring an employee to another store.

McDonalds and Walmart? This is a good business model for the NHL? 30 cookie cutter franchises, same value, same arena size, same ticket prices, music, beer prices, same payroll. Competition FIXED to be the same. It seems an aan idea borne of frustration with the events, but it seems hard to believe that the current owners would want to have anything to do with it. They would become VPs in their own business instead of masters.

Even if the NHL singed all contracts, players would get raises, which would require roster shuffling to maintain the balance.

Players assigned to franchises a the NHL sees fit? The best players? Good luck with that

 

[thinkwild]

After reading what Lonny Bohonos had to say about the situation, I would say the NHLPA would be viewed as the ultimate hypocrite if they raised one objection to seeing the guys they've current kicked out out of starting jobs in Europe repay the favour.

Saskins showed little remorse for guys like him, so too damn bad if this comes home to roost come January or next October.

Poor ol Lonny. It would be pretty hard to have any bad feelings for a guy like him crossing. Just like its tough to be mad at Mcammond for signing in the AHL after how he got screwed around.

I dont know, but im not certain the PA would really be overly mad at Lonny signing. as a relacement player Well probably, but still they dont really need to be, because the point is he will be one of the best players on the new team.

 

[thinkwild]

I don't see any moral connection between this and decertification. That's part of the mix, too. Would you expect the players to give it up? I think there will be another legal battle over that one, too, one with very little precedent. I'd expect the NHL to fight decertification, calling it a sham and a mere bargaining technique.

I don't think they can win that one, but it will be funny to watch. On the one hand the players have decertified because the NHL successfully breaks the union, on the other they will fight to keep the broken union from dissolving.

I agree that all is fair in love and war. This is war.

A legal battle over decertification? That would be funny to watch. One with little precedent? Great, what lawyer could pass up that opportunity, sigh. That is a really interesting thought though.

I guess that explains baseballs interest. I wonder the baseball union seems so supportive and not the others.

But whether decertification is a sham, or the league has bargained unfairly, without a lot of precedent, is this going to end up being a political appointees decision?

 

[hillbillypriest]

Hi Tom,

I always appreciate when you take the time to respond to my posts, so I'll return the favour...

There is no moral high ground. It is a labour dispute. I support the players mostly because I like the way the NHL is structured right now. I hate the NFL and NBA systems. I don't want to see fundamental change in the basic structure. I want the UFA age to stay the same, I think the entry level system is great and in between arbitration is the best solution.

I didn't think I intended my post to address the morality of players vs. owners, but now that you've mentionned it and I've thought about it, I guess I do. What I was trying to address, but wasn't very articulate about, is how the courts would view a declaration of impasse by the owners after a prolonged period of no negotiations by the parties. I think what I was trying to say was that courts (or tribunals such as the NLRB) should ultimately try to make their decisions on the basis of what is fair and reasonable in the circumstances. Where I link decertification (and this is a new thought on reflection of your comments) is that the fact that the NHLPA has the option of decertification and may decide to use it if and when it becomes most advantageous for them to do so should, and therefore may, be taken into account by a labour tribunal in assessing whether good faith bargaining took place prior to the declaration of impasse. If the NLRB were to consider that the NHLPA just wants to use the labour relations process to their advantage and only do so IF they find it advantageous, I would like to think that the NLRB would reasonably take this into account in assessing good faith. In that sense, I would think that the NLRB would reasonably want to differentiate the situation of a multi-million dollar a year sports union player from a gas fitter who doesn't have the same recourse. Also, whether or not you accept the Levitt report, the NHL at least has this as evidence to back up their case that they need a structural realignment in order to keep the business economic. To my mind, the players have no evidentiary basis to refute this information before the labour tribunal, so I really think that the NLRB would take this into account in making a ruling. It also occurs to me that what differentiates the NHL from MLB in 1994 is that MLB players did not have the option of decertification to exert leverage, so the NLRB could also take that into account when considering whether the impasse that may be declared by the NHL owners should be reviewed in the same way that they viewed the MLB impasse declaration in 1994.

When I used he term "unfair labour practice" I'm talking about something that is specifically written into the labour code or has become defined as an unfair labour practice by a labour relations board in one or more of the provinces. It would be the law defining it as unfair, not me personally. I would not personally define using replacement players as an unfair tactic if the players were on strike. In British Columbia it is. In Ontario, it is not.

I think that an "unfair labour practice" should and will be judged in the circumstances, and for the reasons I've mentionned above, I think there's a pretty decent chance that the NHL could make a unilateral CBA following impasse "stick" in the way MLB could not.

(I think it is stupid and unfair to the traditions of the game, but that's a different thing than being unfair.)

This is where we really do get into morality. As someone has noted on this thread in posting the article about Lonnie Bohonos and how he lost his job to an NHLer who apparently feels no remorse for the displacement they've visited down on a working man that has far less resources than an NHLer to ride out a storm. Again, the actions of the NHL players that have gone to Europe should, and may, be taken into account if or when the NLRB has to look at some circumstances presented to them to rule on.

In other words, I'm not arguing about whether it should be defined one way or another. I'm wondering whether it is. If we were talking restaurant workers or something in Ontario, would the labour code allow the employer to lock out the union, unilaterally change the agreement, force a strike, and then invite the union members to ignore the strike vote and come back to work? I don't know. I can imagine, however, that being interpreted - and disallowed - as an attempt to break the union in some jurisdictions.

We're not talking about restaurant workers though. I think the NLRB has no inherent base of sympathy for pro sports players and has to look at the circumstances leading up to the negotiations and the effect of further prolongation of the impasse. If they rule in the players' favour, the lockout will continue. If they don't the players may strike, but they may not. A strike vote would have to be taken. Even if the players do vote to strike, the possibility of the business recommencing can now be contemplated, and people like the Lonnie Bohonoses, arena staff, etc who have been displaced as collateral damage of the impasse can start to have their situations remedied. This to me is a very strong factor. It's moral, and it should and I think would be taken into account at the appropriate time.

Furthermore, it is one thing to replace workers because they go on strike and you decide to give their jobs to someone else. It is another to replace workers when the strategy only wins if the replacements are very temporary. If the players come back, the move wins. If the players don't, the move loses. The players will certainly see it as an attempt to break the union rather than the strike.

I don't think you can or should assume that the replacements are temporary. Replacements can't replace superstars, but I think that the level of player not in the NHL is closer to the fringe level of an NHL player than any non-major league players in other sports are to the major leaguers in any other North American pro sport. This has got to be a real concern to many members of the NHLPA (i.e. that they won't get their jobs back if they stay out too long). This is good.

Perhaps it won't matter even if it is defined that way in the Provincial labour code. I think the first part of that battle will be jurisdiction and on that one I think the NHL should prevail because the NHL offices are in New York.

In my view, jurisdictional differences are a bit of a red-herring. The jurisdiction that matters is the U.S. federal law, and the question of whether a dispute is adjudicated under labor or anti-trust law. If the parties stay in a collective bargaining relationship, then whatever agreement they negotiated has to be ratified by the respective provincial jurisdictions of the Canadian teams, but I see that as only an issue of mechanics. Other than that, the only jurisdictional issue that I would see mattering is the anti-scab laws in BC and Quebec. If I'm the NHL, I deal with this by saying "too F'ing bad" and build my schedule without the Canucks and Canadiens if need by. A side consequence of that is that the BC and Quebec government's will have to look at whether their anti-scab laws were really intended to protect millionaire hockey players. If I were Jean Charest or Gordon Cambpell and wanted to get re-elected Quebec and BC, I change the law to get hockey back rather than stand on some kind of principle. (Aside here: Canadian politicians try to tell us every election that we have national values like medicare. I say hogwash - the only true value shared by most Canadian people is a shared love of hockey. Do I care if Quebec has private clinics - hell no. Do I care if the national team has to rely on a goalie born outside of Quebec to defend the national honour - Oh yeah!!)

I don't see any moral connection between this and decertification. That's part of the mix, too. Would you expect the players to give it up? I think there will be another legal battle over that one, too, one with very little precedent. I'd expect the NHL to fight decertification, calling it a sham and a mere bargaining technique.


I don't think they can win that one, but it will be funny to watch. On the one hand the players have decertified because the NHL successfully breaks the union, on the other they will fight to keep the broken union from dissolving.

I don't think the NHL can effectively fight decertification. The only way they could is if they could prove that the NHLPA was effectively still providing a coordinative support for the NHL players - effectively trying to do collective bargaining in a non-collective bargaining legal environment. I expect, however, that the NHLPA would be smart enough not to open themselves up to that charge.

I agree that all is fair in love and war. This is war.

The earth is being scorched. Sad, but kind of intriguing. Like watching footage of a plane crash.

And isn't that stupid? I heard Jim Kelley talking on the radio the other day and he said he thought the NHL had easily the worst ownership group in sports. Replacement players in Manitoba? It's so Mickey mouse, it's funny.

Don't disagree that the Owners are to blame for where they are now. But the NHL does, IMHO, have its negotiation act together this time and a pretty united looking front. If I'm a player agent representing an athelete in any North American pro sport, I'm a bit worried, because I think that the NHL has a good chance to set some legal precedents that would pierce the armour of legal cases that the pro sports unions have established over the last 30 years.

BTW, on further reflection, I think it is more likely that Vancouver and Montreal would sit it out. I don't think the new improved NHL would want to go head to head against the AHL in a market.

Tom

As an Oiler fan, I wouldn't miss the Canucks

 

[hillbillypriest]

If the NHLPA decertified, the NHL could restructure to become a franchise system such as McDonalds where there are individual owner-operators whose purchasing and sales are strictly controlled through the franchiser, or even Walmart where all the teams would be owned by a single entity, the NHL, with "owners" buying shares and having a specified degree of control based on their investment. Instead of signing with individual teams, players would sign with the NHL and be assigned to franchises based on however the NHL saw fit. The NHL isn't a monopoly, as the NFL was when the NFLPA decertified. There's other pro league options for players so it's likely the NHL would enjoy the same privileges as other franchise operations. In that case, player movement, would simply be like Walmart transferring an employee to another store.

Thanks for bringing up this thought. I've often wondered about this. MLS won a pretty convincing decision that established the ability of a single-entity to shield the league against anti-trust challenges associated with player movement restrictions. If the players can decertify as a tactic, why can't the league just reformulate itself as a single entity with pre-defined work rules. If the team owners could agree on a value of their franchises in exchange for shares in the new entity and a reasonably equitable corporate governance structure, I don't know what would prevent the NHL owners from doing this if it came down to it.

Very interesting...

 

[thinkwild]

1. the NHLPA has the option of decertification and may decide to use it if and when it becomes most advantageous for them to do so should, and therefore may, be taken into account by a labour tribunal in assessing whether good faith bargaining took place prior to the declaration of impasse.

2. Also, whether or not you accept the Levitt report, the NHL at least has this as evidence to back up their case that they need a structural realignment in order to keep the business economic. To my mind, the players have no evidentiary basis to refute this information before the labour tribunal

3.It also occurs to me that what differentiates the NHL from MLB in 1994 is that MLB players did not have the option of decertification to exert leverage

I think that an "unfair labour practice" should and will be judged in the circumstances, and for the reasons I've mentionned above, I think there's a pretty decent chance that the NHL could make a unilateral CBA following impasse "stick" in the way MLB could not.

Those are 3 great points. This is very difficult.

As for all the moral factors, I didnt realize they would have so much bearing. I guess this is about exerting leverage though. But the fact they played in Europe while locked would come into play?

Other than that, the only jurisdictional issue that I would see mattering is the anti-scab laws in BC and Quebec. If I'm the NHL, I deal with this by saying "too F'ing bad" and build my schedule without the Canucks and Canadiens if need by.

You'd think this would lead to cracks in the owners armour, but the tactic makes sense

A side consequence of that is that the BC and Quebec government's will have to look at whether their anti-scab laws were really intended to protect millionaire hockey players.

That would be very interesting. Maybe corporate Canada would contribute to owners warchests for that one

.
If I were Jean Charest or Gordon Cambpell and wanted to get re-elected Quebec and BC, I change the law to get hockey back rather than stand on some kind of principle. (Aside here: Canadian politicians try to tell us every election that we have national values like medicare. I say hogwash - the only true value shared by most Canadian people is a shared love of hockey. Do I care if Quebec has private clinics - hell no. Do I care if the national team has to rely on a goalie born outside of Quebec to defend the national honour - Oh yeah!!)

Oh lord help us if the politicians get involved again.

If I'm a player agent representing an athelete in any North American pro sport, I'm a bit worried, because I think that the NHL has a good chance to set some legal precedents that would pierce the armour of legal cases that the pro sports unions have established over the last 30 years.

And we will have to watch this unfold in the courts. This is worrying if this battle is a front for a larger battle they want to wage in the courtrooms. That cant be good for fans.

You make some great points

 

[Tom_Benjamin]

Where I link decertification (and this is a new thought on reflection of your comments) is that the fact that the NHLPA has the option of decertification and may decide to use it if and when it becomes most advantageous for them to do so should, and therefore may, be taken into account by a labour tribunal in assessing whether good faith bargaining took place prior to the declaration of impasse.

I think this post was mostly wishful thinking. I don't think any of it holds together. What is the relevance? Even if they considered it, they would have to consider it in light of the fact that it is only advantageous to them because the NHL is illegally organised, a clear violation of anti-trust law.

The players don't have the hammer because they can decertify and torpedo the league (or at least the league as we know it.) They have the hammer because the NHL is illegally organised. They are supposed to be competing businesses and they restrict the competition for labour. They can't do that without the consent of the employees. It is against the law.

In that sense, I would think that the NLRB would reasonably want to differentiate the situation of a multi-million dollar a year sports union player from a gas fitter who doesn't have the same recourse.

The gasfitter does have the same recourse. It just doesn't have the same effect because his employer isn't so obviously in violation of anti-trust law.

That's why I don't think the NHL would have zero chance against a decertification vote. It will be the NHLPA who will have to argue it in court. They NHL will claim the players are still really acting in concert and note their opponent. They will say the union is using the advantage the anti-trust legislation gives them as a bargaining tactic. That is a position that can be justified. I do think the players will prevail on that one though. All Goodenow will have to do is show that the majority of players could reasonably believe they would be better off without a collective agreement than the agreement being foisted upon them.

Also, whether or not you accept the Levitt report, the NHL at least has this as evidence to back up their case that they need a structural realignment in order to keep the business economic. To my mind, the players have no evidentiary basis to refute this information before the labour tribunal, so I really think that the NLRB would take this into account in making a ruling.

I doubt this very much. Levitt did not see anyone's books and the URO's don't match anyone's books. Unless the NHL is prepared to table the audited books of the actual teams, it doesn't fly. It isn't evidence of anything.

And even if the teams table real books that show real losses, it isn't evidence that the only way to fix the problem is by linking payroll to an artificially defined "revenue" number. The NHL does not have revenues. Teams have revenues.

Plus, the size of the losses won't even come into it. The only real question is whether the NHL has bargained in good faith. They could be making money hand over fist and they could win on that point. They can have large losses and lose. So far the only specific offer is a wage cut that averages $500,000 an employee. If that's the best they can claim is bargaining in good faith, I think they will have trouble making it stick.

Again, the actions of the NHL players that have gone to Europe should, and may, be taken into account if or when the NLRB has to look at some circumstances presented to them to rule on.

Why? This whole idea of treating players as if they are different than any other worker because they make more or because they can find alternate employment in Europe defeats the whole point of the choice made by the players. The players have to choose between the rules set by the labour law or the anti-trust law.

By having a union and a CBA, they choose to abide by the labour law rather than exercise their rights under anti-trust law. Then when they attempt to use the labour law they find the rules for their members are different than the rules for everyone else? That can't be right. If it turns out to be right, the players are crazy not to decertify. They get the benefits of one or the other, not both. You can't deny them the protections in the labour law by introducing irrelevancies like salary levels, the Levitt report, or Europe. You can't interpret "bargaining in good faith" differently because we are dealing with hockey players.

I don't think you can or should assume that the replacements are temporary.

Of course they are. Lonnie Bohonos is ready to play and he wasn't an NHL player when he was 25. He sure isn't an NHL player at age 31. I agree that the best players in the AHL are pretty much as good as the worst players in the NHL. But there is a big gap between the best AHL players and the worst. And there is a huge gap between the average AHL player and the average NHL player.

The gap between the best ECHL players and the worst AHL players is fairly small, but again there is a huge difference between the average ECHL player and the average AHL players. I've had the chance to read Canuck scouting reports and "ECHL player" is a damning indictment. It meant "If this guy can play in the NHL, I'll eat my hat. Write him off." Most decent college players can make the ECHL. A lot of Canadian College players play in the ECHL. They are miles from being NHL quality.

This is the biggest problem with any replacement player scheme. Where do the players come from? Every NHL team is contractually obligated to place XX players with their AHL team. They all have 40 or 50 players with an NHL contract. If they take contracted players from the AHL, they will have to replace them. How will the affiliates feel about their NHL parent inviting their players to cross an NHL picket line and replacing them with ECHL players? If half the AHL players take up on the NHL offer, what does the AHL do? The AHL has to take on half the ECHL? Their fans would love that.

The NFL was going to go on forever with replacement players if the strike had not been broken and they were not taking players away from their minor league teams. The NHL can't go on forever with replacements. Unless they break the strike, the league would be Mickey Mouse for years because it takes years to develop players.

As an Oiler fan, I wouldn't miss the Canucks

In that league? I've seen Lonnie Bohonos play. I wouldn't miss them either. I'd be quite happy to see them pass.

Tom

 

[Tom_Benjamin]

Thanks for bringing up this thought. I've often wondered about this. MLS won a pretty convincing decision that established the ability of a single-entity to shield the league against anti-trust challenges associated with player movement restrictions. If the players can decertify as a tactic, why can't the league just reformulate itself as a single entity with pre-defined work rules. If the team owners could agree on a value of their franchises in exchange for shares in the new entity and a reasonably equitable corporate governance structure, I don't know what would prevent the NHL owners from doing this if it came down to it.

Very interesting...

I think the idea of turning the NHL into a real McDonald's if the players decertify is an interesting one, but realistically has no chance. Jim Dolan would rather own the New York Rangers that 10% (or whatever) of the NHL. These guys won't even share revenues.

(Speaking of which, I wonder why the media lets Bettman get away with his answer every time he is asked about revenue sharing. "Our proposal includes meaningful revenue sharing." Fine Gary. What? Who shares with who and by how much? How come the Canadian teams - including the ones supposedly threatened - have to share TV money with the US teams? Why don't the Canadian teams keep the $10 million US a team generated in Canada and the US teams keep the US TV money? Why don't you help Edmonton and Calgary by letting them keep the money they generate instead of subsidising the Rangers and Flyers with it?)

And while you could imagine a new league starting this way, the idea requires a merger that will have to get through justice departments in both countries. It is difficult to imagine a merger that is being reviewed for anti-trust reasons being approved when the very reason it is happening is to get around anti-trust rules.

Tom

 

[Buffaloed]

Thanks for bringing up this thought. I've often wondered about this. MLS won a pretty convincing decision that established the ability of a single-entity to shield the league against anti-trust challenges associated with player movement restrictions. If the players can decertify as a tactic, why can't the league just reformulate itself as a single entity with pre-defined work rules. If the team owners could agree on a value of their franchises in exchange for shares in the new entity and a reasonably equitable corporate governance structure, I don't know what would prevent the NHL owners from doing this if it came down to it.

Very interesting...

It could end up just like professional wrestling with staged incidents and fixed outcomes. Imagine the TV ratings in the states if a Bertuzzi incident were a nightly event. The owners would make a bundle. I doubt that preserving the integrity of the game is their foremost concern.

 

[gary69]

The players don't have the hammer because they can decertify and torpedo the league (or at least the league as we know it.) They have the hammer because the NHL is illegally organised. They are supposed to be competing businesses and they restrict the competition for labour. They can't do that without the consent of the employees. It is against the law.

That's why I don't think the NHL would have zero chance against a decertification vote. It will be the NHLPA who will have to argue it in court. They NHL will claim the players are still really acting in concert and note their opponent. They will say the union is using the advantage the anti-trust legislation gives them as a bargaining tactic. That is a position that can be justified. I do think the players will prevail on that one though. All Goodenow will have to do is show that the majority of players could reasonably believe they would be better off without a collective agreement than the agreement being foisted upon them.

The only real question is whether the NHL has bargained in good faith. They could be making money hand over fist and they could win on that point. They can have large losses and lose. So far the only specific offer is a wage cut that averages $500,000 an employee. If that's the best they can claim is bargaining in good faith, I think they will have trouble making it stick.

Tom

What would the actual legal process be like, also timewise, if NHLPA decides to decertify?

Do they have to a wait a certain period of time, before they could for example conclude, that "We NHLPA have come to the conclusion, that NHL will offer
only cap-type CBA and since that will not be approved by our members=players, we cannot negotiate an acceptable deal as a union, players can get better deals individually, and therefore we have decided to decertify. Effective immediately (tomorrow? or some set date in e.g. December 2004?)"

Could they do that, and would they have to organize a some sort of vote amongst members with votes given in writing or could Goodenow just phone all the players and count votes? Do they have to give (or are they allowed?) some prior note to NHL? If this step is taken and decertifying is announced, does it mean that no more negotiations are allowed at all, so that NHLPA could not use this as a negotiating tactics? Is it enough grounds timewise in the eyes of the law/courts to decertify, if there has not been negotiations between NHL and NHLPA for months and no new proposals and no end to lockout in sight?

Could players/NHLPA do this, if they see no point in continuing negotiations since in their opionion obviously neither side is going to give in? Why prolong the obvious? Would this somehow break the "negotiate in good faith" rule you mentioned?

What would decertifying actually mean to contracts/players, will everybody be really an unresticted free agent the next day after decertification, or would they somehow still be influenced by the terminated CBA?

Could e.g. Rangers sign Ovechkin if they wanted to, could they offer Iginla whatever they want the next day, or would the drafts/contracts under terminated CBA somehow be taken into consideration?

What's your estimate on how long it would actually take before enough legal issues would settled in courts, to come up with whatever teams and players to start playing hockey under a league schedule?

 

[SuperUnknown]

I doubt this very much. Levitt did not see anyone's books and the URO's don't match anyone's books. Unless the NHL is prepared to table the audited books of the actual teams, it doesn't fly. It isn't evidence of anything.

That's not true, Levitt had access to every teams books and actually verified their allocations and accounting principles.

 

[Tom_Benjamin]

What would the actual legal process be like, also timewise, if NHLPA decides to decertify?

Ironically, the NLRB has made it easier to decertify in recent years. It does take a vote but I don't think there are any specific time frames. Usually the union is resisting and delaying and the rules seem designed to prevent that. In this case the union would be driving the process so I imagine it could happen quickly.

The owners might try to block it, but the players don't have to show anything like that the negotiations are broken down. They just have to show - through a vote - that they don't want a union any more.

They are taking the dispute out from under labour law and putting it squarely under the anti-trust legislation.

What would decertifying actually mean to contracts/players, will everybody be really an unresticted free agent the next day after decertification, or would they somehow still be influenced by the terminated CBA?

Nothing changes immediately. The ball would be in the owner's court. The doors aren't open and the NHL no longer has a negotiating partner or a CBA. They have to do something though. What?

They could establish some rules - any rules they want - and open their doors. The players with contracts would report. A guy like Kovalchuk - without a contract - will announce he is a free agent and call all the teams. When he did not get several offers - or teams bidding for him - he will file a lawsuit the league can't win.

Could e.g. Rangers sign Ovechkin if they wanted to, could they offer Iginla whatever they want the next day, or would the drafts/contracts under terminated CBA somehow be taken into consideration?

The Rangers could hire both guys. If they don't try, both would file a collusion lawsuit. Crosby's agent would probably file suit and get an injunction preventing the league from holding the amateur draft.

What's your estimate on how long it would actually take before enough legal issues would settled in courts, to come up with whatever teams and players to start playing hockey under a league schedule?

That's up to the NHL. They could fight the lawsuits, but they don't have a leg to stand on and they open themselves up to having to pay these guys millions of dollars even though they don't play in the NHL.

They could open the doors immediately and try to run the league without a CBA and compete for all the free agents from Sidney Crosby to Jarome Iginla. (I think this is one reason both Kariya and Iginla chose not to sign contracts.)

The most likely thing they will do in my opinion is fold like a cheap tent before the decertification vote.

Tom

 

[Tom_Benjamin]

That's not true, Levitt had access to every teams books and actually verified their allocations and accounting principles.

No, he didn't. The team personnel actually complete the URO's, and team auditors verified them. If Levitt had access, he did not ask for it.

If teams want to introduce the URO's in a court of law, they will have to be introduced to evidence by the people who completed them. Levitt satisfied himself that the numbers were correctly allocated, but he's taking the word of the team and the team auditors throughout the report.

Tom

 

[SuperUnknown]

No, he didn't. The team personnel actually complete the URO's, and team auditors verified them. If Levitt had access, he did not ask for it.

If teams want to introduce the URO's in a court of law, they will have to be introduced to evidence by the people who completed them. Levitt satisfied himself that the numbers were correctly allocated, but he's taking the word of the team and the team auditors throughout the report.

Tom

Page 9 from the Levitt Report: (also present in other parts, just one example)

"We obtained and read (...) audited financial statements for three teams we selected for the 2002-2003 season."

If that's not looking at the books, I don't know what is...

 

[Motown Beatdown]

Page 9 from the Levitt Report: (also present in other parts, just one example)

"We obtained and read (...) audited financial statements for three teams we selected for the 2002-2003 season."

If that's not looking at the books, I don't know what is...

Your right, thats looking at the books. They got and read already audited financial statements. The question who audited those statement? The owners of those 3 teams.

 

[SuperUnknown]

Your right, thats looking at the books. They got and read already audited financial statements. The question who audited those statement? The owners of those 3 teams.

Audited financial statements = verified by an accounting firm. Besides, if you read page 9, you'll see that Levitt still asked for precisions and details concerning those audited financial statements.

 

[hillbillypriest]

I think this post was mostly wishful thinking. I don't think any of it holds together. What is the relevance?

Tee hee...Are you just trying to bait me to make sure I'm motivated to respond. Just a moment, I'm going to strap on my debating boots and start flinging some muck...

Even if they considered it, they would have to consider it in light of the fact that it is only advantageous to them because the NHL is illegally organised, a clear violation of anti-trust law.

Anti-trust law is only half the law and it doesn't apply until it applies. Mores the point, after Brown vs. Pro Football, which went all the way to the US supreme court, it's become pretty clear that the collective bargaining relationship does not end between the parties at the point that the union stops consenting to the terms or even at impasse, it only ends after a very prolonged impasse - or - when the union decides to take the step of actually decertifying itself as a collective bargaining agent. As to your proposition that the NHL is illegally organised, I'm afraid that I have to say that you are quite simply WRONG here. In the years following the passage of the Sherman Act, the Courts evolved the non-statutory labor exemption from the Sherman Act to facilitate collective bargaining. Before this principle evolved, union association for the purposes of facilitating collective bargaining was challenged as being an illegal violation of the Sherman Act. Over time and decisions, the U.S. courts have devised the either/or treatment of employer - employee relationships. That is, at any given time the employers and employees are either in a collective bargaining relationship or they are not, in which case (and only in that case) the Sherman Act can apply. So I just don't accept your proposition that the NHL is "illegally organized". I call BS.

The players don't have the hammer because they can decertify and torpedo the league (or at least the league as we know it.) They have the hammer because the NHL is illegally organised. They are supposed to be competing businesses and they restrict the competition for labour. They can't do that without the consent of the employees. It is against the law.

See above.

The gasfitter does have the same recourse. It just doesn't have the same effect because his employer isn't so obviously in violation of anti-trust law.

The point in my post was that NLRB will take into account factors like the type of employees they're dealing with in a particular case and the economic state of the employer. The NHL has evidence of their economic state. The NHLPA has not provided evidence to show that the league is in good shape (just saying "we don't believe you" doesn't count). Administrative law tribunals take evidence, not hearsay, into account. Unlike the gas fitters union, there is no potential for any NHL players to be seriously economically disadvantaged if the league were to impose a multi-million dollar team salary cap as a condition to their willingness to continue the business relationship with the employees. Even then, the players don't lose any ability to choose, they just don't have the same deal as starting point for further negotiations that they had at the time of the CBA's expiry. So what then? The players as a group have to decide whether to strike against the new terms of employment that's on offer for them. If they decide to strike, however, at least at this point, individuals in the union that that want to defy the position of the union have the ability to exercise a free choice to do so. Likewise Hockey players not in the union get the chance to make their choice to play hockey under the league's rules if they wish. Most importantly, the arena staff and other lowly supporting infrastructure of the game get to get back to work. The NLRB won't think about these people when considering the effects of allowing the league to adopt new work rules, I sure doubt it.

That's why I don't think the NHL would have zero chance against a decertification vote. It will be the NHLPA who will have to argue it in court. They NHL will claim the players are still really acting in concert and note their opponent. They will say the union is using the advantage the anti-trust legislation gives them as a bargaining tactic. That is a position that can be justified. I do think the players will prevail on that one though. All Goodenow will have to do is show that the majority of players could reasonably believe they would be better off without a collective agreement than the agreement being foisted upon them.

Here is where we almost (but not quite) agree. I guess I agree that the NHL would fight a decertification on the grounds that it was just a negotiating tactic and that the NHLPA is still effectively advising players on a collective negotiation approach. However, my understanding is that if the NHLPA truly stepped completely aside and the players really did negotiate their contracts with their employers on a bilateral basis, then decertification would end the collective bargaining relationship from that point on, and the Sherman Act would come fully into play (but only in respect of the U.S. teams - an interesting wrinkle to ponder if it ever came to pass). The big hurdle, however, will be for Goodenow to actually get the players to pull the plug on the union. The NBA players were not willing to take this step. This is because the stars and superstars that would benefit the most from true free agency are in the minority in the union. The rest of the group would have to ask themselves whether a life litterally on their own against the NHL and the job competition from the universe of hockey players who's wildest dream is to play hockey in the NHL comes right up to bear. Will the rank and file player really feel that a league with a cap is worse than full on competition? I say not (p.s. I'd actually like to be wrong on this, because I believe full on job competition would cause salary deflation, cap or no, but that's another thread).

I doubt this very much. Levitt did not see anyone's books and the URO's don't match anyone's books. Unless the NHL is prepared to table the audited books of the actual teams, it doesn't fly. It isn't evidence of anything.

Just exactly what is the NHLPA's evidence that the league IS making money? All I hear is the vague assertion that the league MUST be making money, otherwise the owners wouldn't have entered into such fat contracts as they did. This is not evidence. Whether you agree with Levitt or not (and you obviously don't) the NLRB as an administrative tribunal will, by definition, accord more weight to a report supported by an eminently credible source more than they will the NHLPA's equivalent - which, to my knowledge, doesn't exist at all.

And even if the teams table real books that show real losses, it isn't evidence that the only way to fix the problem is by linking payroll to an artificially defined "revenue" number. The NHL does not have revenues. Teams have revenues.

And yet the league and the NHLPA negotiate a collective agreement rather than teams and Team PA's. Odd, don't you think?

Plus, the size of the losses won't even come into it. The only real question is whether the NHL has bargained in good faith. They could be making money hand over fist and they could win on that point. They can have large losses and lose. So far the only specific offer is a wage cut that averages $500,000 an employee. If that's the best they can claim is bargaining in good faith, I think they will have trouble making it stick.

The NHL's position is that they, as a league, need a new relationship with their employees or else they are not prepared to continue to operate. This has been clearly articulated as the basis of the league's postion for more than five years. The NLRB can't ignore this or else they will look like fools. If they declare the new work rules imposed after impasse by the league invalid, the next thing that happens after the ruling is nothing. That is, if the old CBA terms are imposed back on the league as the basis for future discussions, the NHL will re-impose the lockout, and the actual state of impasse between the parties will continue.

Why? This whole idea of treating players as if they are different than any other worker because they make more or because they can find alternate employment in Europe defeats the whole point of the choice made by the players. The players have to choose between the rules set by the labour law or the anti-trust law.

By having a union and a CBA, they choose to abide by the labour law rather than exercise their rights under anti-trust law. Then when they attempt to use the labour law they find the rules for their members are different than the rules for everyone else? That can't be right. If it turns out to be right, the players are crazy not to decertify. They get the benefits of one or the other, not both. You can't deny them the protections in the labour law by introducing irrelevancies like salary levels, the Levitt report, or Europe. You can't interpret "bargaining in good faith" differently because we are dealing with hockey players.

You obviously didn't get my point at all. I was not trying to suggest that the labor law would treat them different because they are hockey players. I was trying to suggest that the NLRB would take into account the demonstrated actions of a the players when assessing the reasonabless of the impasse situation. The circumstance we're dealing with is that the NHL has communicated a fundamental position for a long time and is apparently determined to stick to it until the premise of their fundamental position is accepted. If the players don't ever make a move towards accepting the cap, the fact that the NHL has not moved off this well communicated and well defended (in my view, see above regarding my view on the role of Leavitt) should not, of itself, be regarded as bad faith bargaining. The fact that players willingly accept jobs in Europe for compensation that, if offered by the NHL, would surely be lower than the cap, is, in my view, a factor that can be pointed to to butress the NHL's claim. Similarly, the fact that NHL players with the economic means to "ride out" a strike are willing to take jobs away from players outside of the NHL is something that the NLRB should take into account when considering whether to accept the impasse declaration and thereby allow the NHL to impose new work rules. If the NHLPA decides at that point that there is no percentage in continuing to exist as a union, then so be it too. Decertify, if you must, and then the rules of the game change again, and the NLRB is no longer even involved.

Of course they are. Lonnie Bohonos is ready to play and he wasn't an NHL player when he was 25. He sure isn't an NHL player at age 31. I agree that the best players in the AHL are pretty much as good as the worst players in the NHL. But there is a big gap between the best AHL players and the worst. And there is a huge gap between the average AHL player and the average NHL player.

The gap between the best ECHL players and the worst AHL players is fairly small, but again there is a huge difference between the average ECHL player and the average AHL players. I've had the chance to read Canuck scouting reports and "ECHL player" is a damning indictment. It meant "If this guy can play in the NHL, I'll eat my hat. Write him off." Most decent college players can make the ECHL. A lot of Canadian College players play in the ECHL. They are miles from being NHL quality.

This is the biggest problem with any replacement player scheme. Where do the players come from? Every NHL team is contractually obligated to place XX players with their AHL team. They all have 40 or 50 players with an NHL contract. If they take contracted players from the AHL, they will have to replace them. How will the affiliates feel about their NHL parent inviting their players to cross an NHL picket line and replacing them with ECHL players? If half the AHL players take up on the NHL offer, what does the AHL do? The AHL has to take on half the ECHL? Their fans would love that.

The NFL was going to go on forever with replacement players if the strike had not been broken and they were not taking players away from their minor league teams. The NHL can't go on forever with replacements. Unless they break the strike, the league would be Mickey Mouse for years because it takes years to develop players.



In that league? I've seen Lonnie Bohonos play. I wouldn't miss them either. I'd be quite happy to see them pass.

I don't raise Lonnie Bohonos situation to suggest that the quality of play with replacement players would be acceptable for a major league. I only raised him to discuss the overall context of fairness and public interest results that the NLRB would consider at the point it has to evaluate the effects of an NHL impasse declaration. The thing that the NLRB WON'T do is to consider whether the quality of play will be "acceptable" or "up to standard" if it permits the impasse declaration and opens the door to replacement players. All the NLRB effectively does initially when it decides to accept the impasse is to decide whether the stoppage in work should continue as a lockout or as a strike. However, once it's a strike, it's in the NHLPA player's hands, both collectively and as individuals, to determine what happens next - decertify, stay on strike, whatever.

Over to you Tom...

HBP

 

[Tom_Benjamin]

That is, at any given time the employers and employees are either in a collective bargaining relationship or they are not, in which case (and only in that case) the Sherman Act can apply. So I just don't accept your proposition that the NHL is "illegally organized". I call BS.

Fine, the NHL is legal as long as there is a collective bargaining relationship. It doesn't change anything.

The point in my post was that NLRB will take into account factors like the type of employees they're dealing with in a particular case and the economic state of the employer.

And I'm saying they won't. Basically you are saying that the particular circumstances of the case or the state of the employer's finances allow them to bargain in bad faith or use unfair (according to the code) labour practices. It does not. The NHL still has to bargain.

In fact, I think the NHL behavour is so far from bargaining in good faith, it is a joke. They are doing it deliberately to lose the first round before the NLRB and they will play the second half of this season under last year's CBA. This costs the players a half season's pay and gives the owner the profitable half of the season. It also removes the possibility of a strike just before the playoffs. The owners want to trot out the replacements at the beginning of the year, not half way through.

Once play is underway they will start making serious offers - all that link salaries to revenues - but they will make concession after concession ratcheting up the cap levels step by step through the second half of the year. They will all be rejected because the players reject the system but every one of them will be a PR blow.

This will continue up until training camp next year. That's when they bring 70 players to camp, declare impasse and impose their last best offer. That's when they try to break the strike. They can win before the NLRB if they can show plenty of effort and many concessions to try to resolve the dispute. They can't table six concepts over a year and not budge from them and call it bargaining.

I agree that decertification is a huge step, but the NBA and NHL are two entirely different kettles of fish. In the NBA, the impact players are a small minority who make an enormous difference on the court. Everybody else is easily replaced. The NBA was able to successfully split the impact players from the rank and file.

In the NHL, nobody can have the impact of a Shaquille O'Neill or a Michael Jordan. In the NHL only fringe players are easily replaced. You would expect that in a completely free market a handful of NBA players to make mega salaries and the rest peanuts. The top half of the NHL players would do better than they would under a $31 million cap.

I do think this is what this dispute will come down to. The players will make the choice, one way or another.

Tom

 

[hillbillypriest]

In fact, I think the NHL behavour is so far from bargaining in good faith, it is a joke. They are doing it deliberately to lose the first round before the NLRB and they will play the second half of this season under last year's CBA. This costs the players a half season's pay and gives the owner the profitable half of the season. It also removes the possibility of a strike just before the playoffs. The owners want to trot out the replacements at the beginning of the year, not half way through.

Once play is underway they will start making serious offers - all that link salaries to revenues - but they will make concession after concession ratcheting up the cap levels step by step through the second half of the year. They will all be rejected because the players reject the system but every one of them will be a PR blow.

This will continue up until training camp next year. That's when they bring 70 players to camp, declare impasse and impose their last best offer. That's when they try to break the strike. They can win before the NLRB if they can show plenty of effort and many concessions to try to resolve the dispute. They can't table six concepts over a year and not budge from them and call it bargaining.

Wow, this is quite the conspiracy theory. Is this your official prediction?

HBP

 

[Tom_Benjamin]

Wow, this is quite the conspiracy theory. Is this your official prediction?

HBP

Conspiracy theory? I think that's an excellent plan. If the NHL aren't playing it that way, they should. They could not use replacement players this year because it is a lockout, not a strike. So the first objective is to convert the lockout to the strike. They accomplish that this year. The 2004-05 season is only the warm-up. The real battle will be in 2005-06.

An impasse does them no good this year. They can't bring in replacement players in January. Where do they get them? They don't want to bring them in for the second half of the season anyway. They don't want to risk having a Stanley Cup Tournament with ECHL players. They want to bring them in at the beginning of the year and have the strike broken by Christmas. This year sets them up for next year.

The absolute best possible outcome for the NHL - assuming the players don't have a sudden and unexpected change of heart - for this season is to a) play the second half of the year under the old rules, and b) be in position to break a strike at the beginning of next season.

Another plus to the plan is all the players would bail out of their European contracts this year. Next year is the real crunch year and a lot of European teams may decide they don't want to dabble as furiously in the NHL talent pool as next season.

Furthermore, it calls the players on one of their mantras "We're ready to play." They will get their opportunity to play and under the old CBA to boot. It puts the players in a very tough spot this year. They'd have to vote to strike when a "yes" vote would kill the season.

The owners would be using the labour law to control the timing of the work stoppages. They want them early in the year.

What's wrong with that plan?

Tom

 

[J-D]

Nothing wrong with that plan, but be prepared, in a few hours guys in black suits will ring at your door.

 

[thinkwild]

Thats a devious plan Tom. Frustrating for us fans. If fans were to protest buying playoff tickets it might not be as profitable one, but i imagine even knowing this plan, fans would still support the owners with their wallets.

I still find it a difficult question regarding bad faith before a labour board, the difference between holding our for a declaration of impasse and holding out for decertification. But after decertification it would seem moot.

Regarding the labour board examining the Levitt report, i still wonder how they can come to the conclusion that the system is causing the losses, and not the choices. Does the PA have to show the league is in good shape, or has the choices available to be in good shape? Shouldnt a labour board come to the conclusion that the choices are available not to lose money? Wouldnt to do otherwise mean the Labour board is deciding on the competitive balance of the league and not its profitibility?

 

[Tom_Benjamin]

Thats a devious plan Tom. Frustrating for us fans.

Actually it isn't too bad in the end if it works out the way the owners want it to work out. Instead of messing up one whole year and the start of the next, it messes up two half years. (That's setting aside the issue of the system. To me it would be bad in the end if the owners get their way. But never mind that.) If we are just talking about minimising the fallout and the damages caused by the labour dispute, this is not a bad plan at all.

It also addresses the non-traditional market issue. Lose a year of hockey and then bring in replacements? You kill all the momentum in the Nashvilles and Atlantas. Stop, get started again, stop again and start again with replacements is much better.

The best part is that at crunch time - when the season hangs in the balance - is when the lockout is converted to a strike. The NHLPA does not have to go along, but they will be the ones striking over the last half of the season. That hurts the owners financially, and it really hurts the game - the only baseball strike that was memorable was the one that killed the World Series. Baseball lost fans that year that they never got back. It will all be on the player's head.

But it won't change anything unless the owners are bluffing. The real battle is at training camp next year. When the owners in baseball put the players in exactly this position in 1994, the players pulled the plug. Will hockey players? The NHL is maneuvering to put the players in exactly that position. Strike before the playoffs when their leverage is greatest, or play now and strike in the fall when their leverage is smallest.

I still find it a difficult question regarding bad faith before a labour board, the difference between holding our for a declaration of impasse and holding out for decertification. But after decertification it would seem moot.

They are completely different issues. Forget decertification. That is the player's last resort and we are a long way from that. That's an issue for 2005-06 too.

It will not be a factor in the NLRBs decision. The NLRB does not - as HBP seems to think - decide one way or another according to who is "right" or who is "justified" or whether hockey players have advantages over other employees. None of those things justify bad faith bargaining. The question is narrow. "Have the owners bargained in good faith?" There is no clear checklist but the decision turns on the efforts that are made to reach an agreement. The owner's way or the highway is not good faith bargaining.

The owner approach is designed to ensure there is no agreement because they know they can't get the agreement they want unless they can break a strike with replacement players. They can't do that this season, so they are refusing to bargain until next season when they can break the strike with replacement players.

They look to be back in business with the strike broken and their kind of agreement in January 2006. In the meantime, they want to play the second half of the season for several reasons, money being chief among them. If the players think they are wearing the black hat now, wait until the owners are saying, "We want to play under the old rules for one more year for the sake of the fans. It doesn't solve anything but it gives us more time..."

Regarding the labour board examining the Levitt report, i still wonder how they can come to the conclusion that the system is causing the losses, and not the choices. Does the PA have to show the league is in good shape, or has the choices available to be in good shape? Shouldnt a labour board come to the conclusion that the choices are available not to lose money? Wouldnt to do otherwise mean the Labour board is deciding on the competitive balance of the league and not its profitibility?

This is all irrelevant. All the PA has to show is that the owners have not bargained in good faith. They could be losing zillions and they still have to make an effort to come to an agreement. The owners haven't done anything that remotely resembles an effort to come to an agreement. They don't care what the NLRB does. The only downside to losing is that they take a hit on the PR side when the NLRB declares bad faith bargaining.

Even if they win, the smart thing for them to do is lift the lockout in January. That puts the players squarely on the spot. That's the point. They will wait until nearly the last minute so that a vote to strike is a vote to kill the season.

If all that is true - and I think it is - the strategy does depend on deceiving the fan base in the sense that their moves so far have been a charade. It is a pageant, a script that is being vigorously defended by fans who don't recognize it is all smoke and mirrors. But hey, playing the fan for a chump is a long and hallowed tradition in the NHL. We love the game so much we can hardly help ourselves.

Tom

 

[Brent Burns Beard]

.. why can't the league just reformulate itself as a single entity ...

because to remain above the level of the XFL and WWE, any league that wants to retain the integrity of their sport cannot turn to this model.

would you gamble or believe a league that had full control over the product like the WWE has ? whats to stop the league from manipulating the standings and firing the players who dont follow the "script".

hello WWE !

dr

 

[Tom_Benjamin]

because to remain above the level of the XFL and WWE, any league that wants to retain the integrity of their sport cannot turn to this model.

I don't think this is the critical issue. The most important issue is that the teams definitely do not want to merge. A second issue is that most teams do not stand alone. They are parts of larger wholes. A third issue is the difficulty of devising a merger agreement. A merger between two businesses is hard enough in trying to sort out fair valuations for a share swap. This is 30 businesses merging. A fourth issue is getting the merger approved by governments when the obvious reason for the merger is anti-competitive. The Justice department will approve this new NHL when it reviews the merger?

It isn't going to happen.

Tom