Blinkage, Linkage & Stinkage (CBA & Lockout Discussion) XVII

[mouser]

Right. It exists but its unenforceable (with no certainty it will ever be enforceable again). Which is as good as if it didn't exist. This is why I'm saying it's basically semantics whether you say the contract disappears or not. This isn't a contract law class, there's no need to stand on ceremony and use the magic words. You can use the ones that convey the facts to your audience.

Well, no it's not "as good as if it didn't exist". The conditions under which the contracts could become enforceable again are not all under the unilateral control of the NHL. Portraying the situation as you're trying to do distorts the facts to create an incorrect simplification.

The most simple examples of contracts becoming enforceable being if one of the provinces ruled favorably for the players in their labor complaints. Or the more dramatic outcome if the PA were able to successfully decertify.

 

[Motown Beatdown]

The PA is a total joke. Fehr has these guys so tightly wound around his finger you can almost taste it. He's been feeding their numbskull heads with all this rhetoric about honoring past contracts, yadda yadda, when they have absolutely nothing to stand on. Sad.

These comments are so funny. If it was 2004 it was Goodenow instead of Fehr. But we all know how that turned out right.


the truth is Bettman has done more to unify this union than Fehr.

 

[Apoplectic Habs Fan]

Yeah...the $13 mill is a signing bonus. IIRC, he gets a salary of $1mill each of the first 4 yrs and a signing bonus of $13mill each of the first 4 yrs.

maybe someone else can confirm.

as far as i know, every where i read and heard, they say he gets his signing bonus because thats kind of the definition of a signing bonus. Getting the money to sign the contract.

as for the rest of the contract, the poster would be right. The contracts exists, just unenforceable at the moment.

 

[NYRSinceBirth]

as far as i know, every where i read and heard, they say he gets his signing bonus because thats kind of the definition of a signing bonus. Getting the money to sign the contract.

as for the rest of the contract, the poster would be right. The contracts exists, just unenforceable at the moment.

This is probably the more succinct, most accurate rendition of the argument.

You get the "Signing Bonus" because you signed.

The lack of a current CBA doesn't nullify player contracts, it just makes them (temporarily, unless the league disappeared) unenforceable. They still exist, and if the league/player decided to perform the contract (end CBA dispute) the parties are binded by its terms.

The transition of CBA requirements makes things a little trickier, and I'm far to uninformed to know the nuances, but simply put, the contracts are still valid.

 

[haseoke39]

You're erring again. Whether this dispute gets resolved or not Weber gets his $13M.

Yeah, to echo other posters, if it's a signing bonus. But that's just you being tricky. I would've presumed that was paid already, anyways.

Well, no it's not "as good as if it didn't exist". The conditions under which the contracts could become enforceable again are not all under the unilateral control of the NHL. Portraying the situation as you're trying to do distorts the facts to create an incorrect simplification.

The most simple examples of contracts becoming enforceable being if one of the provinces ruled favorably for the players in their labor complaints. Or the more dramatic outcome if the PA were able to successfully decertify.

Well, you're right, this theoretically could get more tricky if a court decided they were going to bypass everything, call the league in violation of anti-trust or something like that. There's some uncertainty there. But put it this way: I don't know of a case where a union tried to get contracts that were signed, salary subject to an expired agreement, were found enforceable absent any agreement that mimicked the same terms. Every player's salary for the past six years has been subject to terms involving escrow and linkage to HRR. The salary of these deals was meant to be variable. I would be very surprised to see a court step in and declare that the SPC is legally enforceable just for the face value of the salary without any agreement in place that replaced the other terms of the contract. I think the legal argument would be terribly hard to make.

And this is the least likely outcome anyways. I was just trying to defend a simple way of understanding the situation that is basically accurate for purposes of what we're talking about here. Players want their contracts "honored," but for all reasonably foreseeable intents and purposes (i.e., not a court coming in with an unprecedented antitrust ruling or something), their contracts can't be honored without a CBA (or some separate agreement by the owners) that fills out their terms. I mean, crucify me, but we're all basically saying the same thing here, and I think it's a fair way to put it that the contracts aren't enforceable without a CBA, i.e., have functionally disappeared.

 

[Sydor25]

I was looking at the nba CBA and the nbapa agreed to a cap of 10% in their escrow. Which was an increase from their previous CBA (8%) to help cover their BRI percentage reduction from 57% to 51.15% in 2011-12. After that season their share is 49-51%. If the players earn more than the escrow can cover (10%+ a 1% "benefits" fund), then the owners take the loss and the players earn more than they should. No "make whole" deal for the nba.

The other difference is that the nba already had term restrictions on their contracts and didn't have cap-circumvention contracts to "make whole".

Wonder if the NHLPA will sign a similar deal?

 

[NYRSinceBirth]

Yeah, to echo other posters, if it's a signing bonus. But that's just you being tricky. I would've presumed that was paid already, anyways.



Well, you're right, this theoretically could get more tricky if a court decided they were going to bypass everything, call the league in violation of anti-trust or something like that. There's some uncertainty there. But put it this way: I don't know of a case where a union tried to get contracts that were signed, salary subject to an expired agreement, were found enforceable absent any agreement that mimicked the same terms. Every player's salary for the past six years has been subject to terms involving escrow and linkage to HRR. The salary of these deals was meant to be variable. I would be very surprised to see a court step in and declare that the SPC is legally enforceable just for the face value of the salary without any agreement in place that replaced the other terms of the contract. I think the legal argument would be terribly hard to make.

And this is the least likely outcome anyways. I was just trying to defend a simple way of understanding the situation that is basically accurate for purposes of what we're talking about here. Players want their contracts "honored," but for all reasonably foreseeable intents and purposes (i.e., not a court coming in with an unprecedented antitrust ruling or something), their contracts can't be honored without a CBA (or some separate agreement by the owners) that fills out their terms. I mean, crucify me, but we're all basically saying the same thing here, and I think it's a fair way to put it that the contracts aren't enforceable without a CBA, i.e., have functionally disappeared.

Per your last part, I understand what you're saying, but it implies that when a new CBA is settled on, in your scenario, every player would have to be re-signed. That's clearly not factual, nor do I think was your intent.

 

[kdb209]

Shea Weber doesn't have a contract until an agreement is in place that validates his contract. Unless this dispute gets resolved, yes, his $13M turns into $0. That's absolutely true. I don't understand why this is so troubling for you. It's not like we disagree on substance.

Not true.

All current contracts are still valid after a CBA expires - it is just that both US and Canadian Labor law recognizes the right of an employer to lock out employees w/o pay after a CBA expires (the analogue of allowing employees to strike in similar circumstances). If the League had not chosen to lockout the players, the players would have continued to play under those contracts and under the work rules of the expired CBA. And if the League did ultimately declare an impasse, impose a temporary CBA, and lift the lockout the players would be obligated to play under those SPCs (unless the NHLPA then elected to strike).

And as to the $13M signing bonus - it would very likely be due even if there is no CBA and the lockout continues. Nothing in the SPC and nothing I'm aware of under US labor law would relieve a team of that obligation. That said, if a team refused the only recourse a player would have is arbitration under the terms of the expired CBA, which likely could be delayed almost indefinitely on procedural grounds - although it is possible that a court could order the League and NHLPA to agree on an arbiter and fulfill the arbitration process to hear the grievance. However, any signing bonus paid during the lockout would be subject to modification (and possible clawbacks) under the transition rules of any new CBA that is ultmately signed.

 

[Bob b smith]

Yeah, to echo other posters, if it's a signing bonus. But that's just you being tricky. I would've presumed that was paid already, anyways.



Well, you're right, this theoretically could get more tricky if a court decided they were going to bypass everything, call the league in violation of anti-trust or something like that. There's some uncertainty there. But put it this way: I don't know of a case where a union tried to get contracts that were signed, salary subject to an expired agreement, were found enforceable absent any agreement that mimicked the same terms. Every player's salary for the past six years has been subject to terms involving escrow and linkage to HRR. The salary of these deals was meant to be variable. I would be very surprised to see a court step in and declare that the SPC is legally enforceable just for the face value of the salary without any agreement in place that replaced the other terms of the contract. I think the legal argument would be terribly hard to make.

And this is the least likely outcome anyways. I was just trying to defend a simple way of understanding the situation that is basically accurate for purposes of what we're talking about here. Players want their contracts "honored," but for all reasonably foreseeable intents and purposes (i.e., not a court coming in with an unprecedented antitrust ruling or something), their contracts can't be honored without a CBA (or some separate agreement by the owners) that fills out their terms. I mean, crucify me, but we're all basically saying the same thing here, and I think it's a fair way to put it that the contracts aren't enforceable without a CBA, i.e., have functionally disappeared.

As a rule of thumb, sure... As for the status of contracts, if we say contracts disappear as a premise, several new arguments can then follow that are inaccurate. I just want to narrow the debate to the contentious issues...

 

[haseoke39]

Per your last part, I understand what you're saying, but it implies that when a new CBA is settled on, in your scenario, every player would have to be re-signed. That's clearly not factual, nor do I think was your intent.

Right. The contracts become enforceable again when there's a CBA.

Not true.

All current contracts are still valid after a CBA expires - it is just that both US and Canadian Labor law recognizes the right of an employer to lock out employees w/o pay after a CBA expires (the analogue of allowing employees to strike in similar circumstances). If the League had not chosen to lockout the players, the players would have continued to play under those contracts and under the work rules of the expired CBA. And if the League did ultimately declare an impasse, impose a temporary CBA, and lift the lockout the players would be obligated to play under those SPCs (unless the NHLPA then elected to strike).

And as to the $13M signing bonus - it would very likely be due even if there is no CBA and the lockout continues. Nothing in the SPC and nothing I'm aware of under US labor law would relieve a team of that obligation. That said, if a team refused the only recourse a player would have is arbitration under the terms of the expired CBA, which likely could be delayed almost indefinitely on procedural grounds - although it is possible that a court could order the League and NHLPA to agree on an arbiter and fulfill the arbitration process to hear the grievance. However, any signing bonus paid during the lockout would be subject to modification (and possible clawbacks) under the transition rules of any new CBA that is ultmately signed.

I didn't know the poster was referring to a signing bonus, so I agree, although I presume the signing bonus has been paid already. But I think you'll agree, based on what I'm reading, that if the league does not settle on a new CBA and does not lift the lockout, the league doesn't have to honor those contracts. Now yes, the players could take them to court for anti-trust at that point, but I highly doubt that any court, given the history and intent of these contracts, would find the SPC enforceable for its face value independent of any CBA that fills out its terms.

 

[schabadoo]

Fire Bettman, Fire Fehr, and get a deal done...every one wins...

Fehr wasn't in the mix in 2004, and yet the season was lost.

Odd he's getting blamed now.

 

[Bob b smith]

Right. The contracts become enforceable again when there's a CBA.



I didn't know the poster was referring to a signing bonus, so I agree, although I presume the signing bonus has been paid already. But I think you'll agree, based on what I'm reading, that if the league does not settle on a new CBA and does not lift the lockout, the league doesn't have to honor those contracts. Now yes, the players could take them to court for anti-trust at that point, but I highly doubt that any court, given the history and intent of these contracts, would find the SPC enforceable for its face value independent of any CBA that fills out its terms.

No, he'll also be paid bonus money in the future.

 

[haseoke39]

No, he'll also be paid bonus money in the future.

Well, then here's a question: presume NHL and NHLPA agree to something absurd like 5% of HRR for players. Suddenly, the signing bonus can't be paid out under the cap. What happens to it?

 

[Krishna]

Fehr wasn't in the mix in 2004, and yet the season was lost.

Odd he's getting blamed now.

Because one thing that the owners definitely want is a linked salary cap.

Fehr has completely ignored this.

 

[Krishna]

Well, then here's a question: presume NHL and NHLPA agree to something absurd like 5% of HRR for players. Suddenly, the signing bonus can't be paid out under the cap. What happens to it?

If it gets down to 5%, the contract will be rolled back accordingly

 

[haseoke39]

If it gets down to 5%, the contract will be rolled back accordingly

Well, what we were arguing earlier was that the owner is on the hook for the bonus regardless of CBA negotiations. So how does that work.

 

[Sydor25]

Well, what we were arguing earlier was that the owner is on the hook for the bonus regardless of CBA negotiations. So how does that work.

If the owners can get the players down to 5%, I'm sure they would gladly pay the signing bonuses on the side.

 

[Krishna]

Well, what we were arguing earlier was that the owner is on the hook for the bonus regardless of CBA negotiations. So how does that work.

Pretty sure it would still be rolled back in relation to the percentage

 

[kdb209]

Well, what we were arguing earlier was that the owner is on the hook for the bonus regardless of CBA negotiations. So how does that work.

The bonus gets paid when due and either clawed back under the transition terms of the new CBA (which will be retroactively effective as of 9/15/12) or it ends up being treated in the same way as when the entire escrow acct is insufficient to make up an overpayment of the Players Share - all players make add'l payments to the teams to bring total player compensation equal the negotiated Players Share.

 

[Halibut]

Because one thing that the owners definitely want is a linked salary cap.

Fehr has completely ignored this.

No, he has put forward proposals that are linked just not immediately. They havent ignored linkage, they've accepted it eventually. The owners are demanding immediate rollbacks and all the other terms which I think are the bigger issues now. I think 50/50 is how it's going to end up and the players accept that the question is how they get there, what will be the allowed contract lengths, elcs, etc.

 

[UsernameWasTaken]

as far as i know, every where i read and heard, they say he gets his signing bonus because thats kind of the definition of a signing bonus. Getting the money to sign the contract.

as for the rest of the contract, the poster would be right. The contracts exists, just unenforceable at the moment.

yeah, i get that. someone asked about the $13mill and I was saying that it was his signing bonus...not that I didn't understand what a signing bonus was.

 

[LSnow]

No, he has put forward proposals that are linked just not immediately. They havent ignored linkage, they've accepted it eventually. The owners are demanding immediate rollbacks and all the other terms which I think are the bigger issues now. I think 50/50 is how it's going to end up and the players accept that the question is how they get there, what will be the allowed contract lengths, elcs, etc.

Whats the use to negotiate a linkage if you get it last year of the cba? Isnt that pretty much useless..

 

[CpatainCanuck]

These comments are so funny. If it was 2004 it was Goodenow instead of Fehr. But we all know how that turned out right.


the truth is Bettman has done more to unify this union than Fehr.

Yes: The players lost an entire season because they wouldn't accept any proposal with a salary cap. They eventually accepted a salary cap the next offseason after firing Goodenow, which has led them to record incomes in recent seasons.

The same thing is happening this time: the players will eventually sign for something like the owners are offering now; whether an entire season is lost due to their stupidity or not is the only question.

 

[UsernameWasTaken]

Fire Bettman, Fire Fehr, and get a deal done...every one wins...

I actually think there would be nothing worse than firing them. I know people hate Fehr - but he's intelligent, experienced, and, despite what people say, I think he's doing a reasonably good job given that it seems that, even without Fehr, the players have had unreasonable expectations (apparently one of their big early questions was could they get rid of the cap, and Fehr pulled them in off the ledge).

I also don't think Bettman is doing a bad job either - he's got 30 owners who, in a base sense, are joined in interest in wanting to save money, but also have disparate needs/wants/objectives, and he's managed to reign them in.

There are things about both Fehr and Bettman that have made this a more headache-y negotiation...but I think dumping either would make things worse.

I read an article today where Vernon Fiddler, who was/is injured and still recieving checks from the Stars gave one full one to charity.

While this is a nice gesture, i wouldn't call it a smart one givin' the circumstances.

I see it as a hopeful sign that he's a player who has taken care of his finances and feels that, even with the lockout, he has enough money to give.

Players need to realize their current contract is over. Get past that.
Negotiate your best deal moving forward. If you are concerned with "honoring" contracts then sign a longer CBA this time.

Their current contract is not at all "over". They're simply fighting over whether their share of the HRR will throw off enough revenue to their side to fulfill what they would gave received with HRR of 57%.

Because one thing that the owners definitely want is a linked salary cap.

Fehr has completely ignored this.

and the one thing the players want is to have the face value of their contracts fulfilled . Now, I think that NHL's requirement of a link to the salary cap is a much more tenable position than simply saying "we want our contracts fulfilled" - b/c no matter the %, under the old CBA, the $ the players were going to get on the face value of their contract was still associated to HRR % - but I also think that the owners need to be a little less ham fisted in their demands.

A mediation might be a wise idea - I've heard Daly say that a mediation is only necessary if the parties disagree about the issues/the position of the parties - but in my line of work that's not the case at all - mediation (with an appropriate mediator) can be very effective in helping parties (who already know what they're fighting over and what the position the other party holds) start finding "creative solutions" that the parties wouldn't come up on their own.

The problem with negotiations like this is that the parties don't really hear from their own representatives that they might be wrong, the position they're taking might be foolish/untenable, they might be overlooking potential solutions, etc. That is something that an experienced/appropriate mediator can really bring to the table.

Of course, it also carries the unattractive risk that neither Fehr nor Bettman are interested in - that a mediator might point out the foibles in what Bettman has told the owners or what Fehr has told the players.

 

[ChillyPalmer]

Yes: The players lost an entire season because they wouldn't accept any proposal with a salary cap. They eventually accepted a salary cap the next offseason after firing Goodenow, which has led them to record incomes in recent seasons.

The same thing is happening this time: the players will eventually sign for something like the owners are offering now; whether an entire season is lost due to their stupidity or not is the only question.

How are the players the stupid ones if they always win the CBA? These owners are incompetent. Easily the most incompetent of the 4 major sports. I agree, they should take the deal, and make it 15 years with no opt out. Teams will still lose money.