Brooks: Contracts may not be expiring

[Jarqui]

Thanks. So it sounds like there is no chance of this issue going to court, and it will be resolved at the bargaining table. There’s also a high probability that they’ll just forget about the 04-05 contracts and move on. But the PA might say, “ok, we’ll accept the 54% linkage, but only if you honor the 04-05 contracts”, and the owners might agree.

It is up to the two parties to sort the issue out in negotations over the transition from the old CBA to the new one. Court is unlikely as issues coming out of this would likely be dealt with in arbitration after the new CBA is put into place.

The danger would be that if they don't get the wording right on the transition, grievances could be filed. Then some of the past cases and issues that Brooks referred to in his article might (only might) be raised depending on the issues raised in the grievance and how pertinent they would be to the wording in the new CBA.

The arbitrator rules largely on his interpretation of the new CBA agreement. If the new CBA agreement ties somehow into the old one (through the Standard Players Contract or some reference), his interpretation of the situation and remedy may be based on something more complex.

What if the owners declare impasse and the players strike? There would be no agreed upon contract transition language in the CBA. Can the players then go to court, or do they wait for a final resolution to the dispute?

I can't go through all the permutations here to properly answer your question. I'm not sure I can think of them all in a couple of minutes.

The NHLPA would very likely already be in front of the NLRB with claims against the impasse or on bad faith bargaining, etc.

It depends on what the owners do. If they don't implement their last proposal, that's one wild guess as to where they would be. If they just bring in the AHL to play games in their rinks, it's a non issue to be resolved when a CBA deal is reached.

If they implement their last proposal, presumably that would deal with the issue for the owners as if it had been negotiated. If they didn't try to address it in their last proposal, they'd be stupid and that is a whole other mess.

Eventually it must ultimately be negotiated and agreed to by the NHLPA or ruled upon in arbitration if the agreement doesn't cover it so whatever the owners did would be an interim measure until there is agreement with the NHLPA. Once whatever the owners do on an interim basis is known, that would determine what the NHLPA/players could do and is also dependent on what they do themselves (they could try to disband and file antitrust suits, etc - execute their options).

Let's deal with this one when we get there or closer to it because there's a whole bunch of ways it could go.

 

[thinkwild]

From the standard players contract contained in the most recent NHL CBA:
18. The Club and the Player severally and mutually promise and agree to be legally bound by the Constitution and By-Laws of the League and by any Collective Bargaining Agreement that has been or may be entered into between the member clubs of the League and the NHLPA,

The players agree that their union can collectively bargain things they have to accept. Like a 24% rollback many were quite surprised about. But i dont interpret this as allowing the league to lock them out.

This Contract is entered into subject to the Collective Bargaining Agreement between the NHL and the NHLPA and any provisions of this Contract inconsistent with such Collective Bargaining Agreement are superseded by the provisions of the Collective Bargaining Agreement.

Anything they try to put in a contract that violates the spirit of the encompassing CBA wouldnt be allowed. Again, I dont see the case for the lockout.


The Yashin decision was a very interesting precedent, and may be taken into account when they are negotiating the transition. If he holds out, he owes the service. The NHL in its (unneeded but desired because they think the time is right to try and win a fight), quest for cost certainty has locked the players out. Asking the players to negotiate this with the owners is no different than saying Ottawa should have negotiated with Yashin.

My fading memory of the long ago Nolan case was that either it was always written this way, or Bettman changed it in a grievance, that Nolan didnt get to add a year if there was a lockout, but rather could convert the final year from a team option to a player option if there was a lockout. This is quite different. But it seems to imply the contract would lapse. I agree the Yashin and Nolan cases seem to suggest 2 different things. If its not negotiated, an arbitrators decision is not a certainty.

 

[kdb209]

Originally Posted by FrozenPond
What if the owners declare impasse and the players strike? There would be no agreed upon contract transition language in the CBA. Can the players then go to court, or do they wait for a final resolution to the dispute?

I can't go through all the permutations here to properly answer your question. I'm not sure I can think of them all in a couple of minutes.

The NHLPA would very likely already be in front of the NLRB with claims against the impasse or on bad faith bargaining, etc.

It depends on what the owners do. If they implement their last proposal, presumably that would deal with the issue for the owners as if it had been negotiated. If they didn't try to address it, they'd be stupid and that ios a whole other mess. Eventually it must ultimately be negotiated and agreed to by the NHLPA or ruled upon in arbitration if the agreement doesn't cover it so whatever the owners did would be an interim measure until there is agreement with the NHLPA. Once whatever the owners do on an interim basis is known, that would determine what the NHLPA/players could do and is also dependent on what they do themselves (they could try to disband and file antitrust suits, etc - execute their options).

Let's deal with this one when we get there or closer to it because there's a whole bunch of ways it could go.

Yes, the transitional issues would be dealt with in the imposed impasse CBA, and if the players vote not to strike (or a player crosses the line in the face of a strike) they will be agreeing to those terms. This is of course dependent on all the other NLRB issues being resolved.

But remember, even an imposed CBA is a temporary thing. A work stoppage is still in place and a CBA must still eventually be negotiated - even if play is continuing under the imposed CBA.

One potential twist. I have read in a couple of places that it is a legal grey area whether an imposed CBA could address restraint of trade issues (the Draft, RFAs, etc) or only current work rule issues (Salary, etc) - whether it would give the same blanket anti-trust protections as a negotiated CBA.

Either way, I view all this an just an interesting exercise - I very highly doubt that you will see the league go the impasse route.

 

[Jarqui]

If in fact, you think some rules still apply, then the July 1st deadline would still be in effect. Can't have it both ways. Maybe the players have asked Bob to delay things and not sign a CBA until after the deadline. But, I think, no CBA, no contract, no rights equals UFA. Simple English for all you sycophants or is it psycho-phants. Oh, this is getting to complicated.

It is up to the two parties to decide this issue in negotiation - not Larry Brooks. No "rules" apply. It doesn't matter what the players have asked Bob Goodenow to do if the owners do not agree to it. And it doesn't matter what the owners have asked Gary Bettman to do if the players don't agree to it. The July 1 deadline date will only continue to exist if both parties deem it should continue to exist.

They can wipe out all the players contracts and make all players UFAs if both parties agree to do that and their deal gets ratified by both parties stating that. But if one party doesn't agree to that, it ain't happening.

What will happen is whatever the NHL and NHLPA mutually decide to do about this issue and transition issues like it. What won't happen is a lot of the speculation in this thread. = those are about the only rules here that you can count on.

 

[kdb209]

The players agree that their union can collectively bargain things they have to accept. Like a 24% rollback many were quite surprised about. But i dont interpret this as allowing the league to lock them out.


Anything they try to put in a contract that violates the spirit of the encompassing CBA wouldnt be allowed. Again, I dont see the case for the lockout.


The Yashin decision was a very interesting precedent, and may be taken into account when they are negotiating the transition. If he holds out, he owes the service. The NHL in its (unneeded but desired because they think the time is right to try and win a fight), quest for cost certainty has locked the players out. Asking the players to negotiate this with the owners is no different than saying Ottawa should have negotiated with Yashin.

There does not need to be any clause in the CBA to authorize a lockout. The right of a company to lock out it's employees in the absence of a CBA is a well understood point of labor law - they don't work and they don't get paid.

There is a fundamental difference between the Yashin precedent and the current lockout situation. Yashin was in breach of a valid contract under a valid CBA and explicitly trying to benefit himself from that breach. Currently there is no breach of contract - a lockout is a perfectly legal in the absence of a CBA - just as legal as a player's strike would have been.

 

[Jarqui]

The players agree that their union can collectively bargain things they have to accept. Like a 24% rollback many were quite surprised about. But i dont interpret this as allowing the league to lock them out.


Anything they try to put in a contract that violates the spirit of the encompassing CBA wouldnt be allowed. Again, I dont see the case for the lockout.

Language to define when the owners can lock the players out and when the players can strike is in their CBA. See clauses 3 and 7.

The standard players contract ties in to the CBA legally and clearly by refering to it as it does in clause 18 of that contract. That standard players contract clause 18 effectively acknowledges the CBA at the time the deal is written and any new CBAs that should come along afterwards as the prevailing legal language that supercedes that standard players contract. The standard players contract is also contained within the CBA. They're linked both ways. Tied tightly together.

The Yashin decision was a very interesting precedent, and may be taken into account when they are negotiating the transition. If he holds out, he owes the service. The NHL in its (unneeded but desired because they think the time is right to try and win a fight), quest for cost certainty has locked the players out. Asking the players to negotiate this with the owners is no different than saying Ottawa should have negotiated with Yashin.

The only influence the Yashin arbitration case will have on the new CBA will be wording to insure that the Yashin event can't ever be repeated. The old CBA wording that the arbitrator relied upon to rule on Yashin will be gone forever unless a portion of it is carried forward into the new deal (unlikely after what has happened). The new CBA supplies a new set of rules agreed upon by both parties. It will be the wording of the new CBA that an arbitrator looks at - not the old set.

 

[thinkwild]

If the owners win it. The players are perfectly in their right to demand compensation for their missed year, and if they have leverage they will negotiate some. The old contracts are contracts that only the PA can agree to negotitate away. Any imposition will see those challenged quickly

 

[kdb209]

If the owners win it. The players are perfectly in their right to demand compensation for their missed year, and if they have leverage they will negotiate some. The old contracts are contracts that only the PA can agree to negotitate away. Any imposition will see those challenged quickly

Sure, the players can demand compensation for their missed year, but they aren't going to get it. Their contracts were for salary in return for services rendered and those services were not rended (for perfectly justifiable and legal reasons - the lockout). So, absent any type of guaranteed personal services type contract, the players would have no grounds for any type of claim on 2004-05 earnings.

 

[Weary]

Sure, the players can demand compensation for their missed year, but they aren't going to get it. Their contracts were for salary in return for services rendered and those services were not rended (for perfectly justifiable and legal reasons - the lockout). So, absent any type of guaranteed personal services type contract, the players would have no grounds for any type of claim on 2004-05 earnings.

And when did the NLRB or a court rule on the justifiability and legality of the lockout? Lacking that, it's too early to say "the players would have no grounds for any type of claim on 2004-05 earnings."

 

[Strangelove]

You used two words that completely destroys anything the NHLPA and their psycho-phants like to toss out (and you know who you are), Common Sense. Even when the evidence to support the contrary view to what the PA has to promote is presented, it is ignored and the Gospel according to Goodenow is recited with reverence. Guys like Brooks just continue to murder the players' position and make them even less sympathetic. I hope he continues his great work. Not only is he funny, but he's turning an entire generation of "stars" into parriahs. Ain't freedom of speech a wonderful thing!

Personally, i would fight to the death to protect Larry's right to make a complete jackass out of himself!!

Along with the similar rights of all those he represents; those who represent him....



(I figure it's better to just let Survival Of The Fittest weed these folks out over the long haul)

 

[kdb209]

And when did the NLRB or a court rule on the justifiability and legality of the lockout? Lacking that, it's too early to say "the players would have no grounds for any type of claim on 2004-05 earnings."

Because the NLRB and no court has been (or likely will ever be) asked to rule on the justifyability or legality of a lockout.

You do not need any NLRB or court approval to institute a lockout. If you have no contractual obligation under a CBA to remain open for business, no court can or will force you to stay open against your will.

A lockout is a perfectly legal option open to an employer, and by itself is not any type of unfair labor practice that will be reviewed by the NLRB or the courts. Other matters in conjunction with a lockout - a selective lockout, encouraging members to quit a union, etc - may be viewed as such.

The NLRB held in American Ship Building v. NLRB that a lockout is a valid negotiating option.

This Court held in American Ship Building Co. v. NLRB, 380 U.S. 300 (1965), that employers do not violate Section 8(a)(1) or Section 8(a)(3) by locking out their employees in order to place economic pressure on the employees union during a bargaining dispute. Such a lockout does not violate Section 8(a)(1) because the employer s use of a lockout solely in support of a legitimate bargaining position is [not] in any way inconsistent with the [employees ] right to bargain collectively or with the right to strike. 380 U.S. at 310. Such a lockout also does not violate Section 8(a)(3) because use of the lockout [in bargaining] does not carry with it any necessary implication that the employer acted to discourage union membership or otherwise discriminate against union members as such. Id. at 312. Therefore, when the employer s intention is merely to bring about a settlement of a labor dispute on favorable terms, no violation of § 8(a)(3) is shown. Id. at 313.

 

[me2]

If the owners win it. The players are perfectly in their right to demand compensation for their missed year, and if they have leverage they will negotiate some. The old contracts are contracts that only the PA can agree to negotitate away. Any imposition will see those challenged quickly

They can demand all they want, but that doesn't mean they are going to get it or have a right to get it. The logic of that is incredibly flawed. If the players legally go on strike the NHL won't have the right to compensation while they are striking. Imagine the players 94 strike if they had to pay the owners revenue for every lost game due to the stike. It just doesn't make sense. Likewise, the players legally locked out, so bad luck, no money for them.

The NHLPA can ASK the NHL to extend those contract and the NHL might throw the NHLPA a bone and do it. The NHLPA really doesn't seem to have any way of forcing the issue. It will be negotiated by both parties or not at all.

 

[Jarqui]

How is that? He is saying that this issue hasn't been addressed so far. He is right. It is a valid issue, that needs to be ironed out through negotiations. He is also right that if this issue is not negotiated, there is a good case (and a precedent) to ask courts for enforcement of the 04/05 contracts.

From Brooks:
the fate of 2004-05 player contracts has flown under the radar. But there will come a day when the disposition of those commitments becomes a critical matter in reaching a new CBA. And when it arrives, the NHLPA will have the precedent established by Yashin arbitrator Lawrence Holden on its side.

First of all, the precedent means squat. When they sit down to negotiate it, they negotiate how they move forward regardless of precedent. Everything is on the table. An arbitrator isn’t deciding the issue during negotiations. The two parties are.

"Alexei Yashin withheld his services in breach of contract for the entire 1999-2000 playing season because he wanted more compensation than his contract provided."
Arbitrator Lawrence Holden in his decision

The NHL is not in breach of their contract with the players by locking them out. The NHL exercised it’s collective bargaining rights to lock the players out. The NHL's ability to lock the players out is covered in their CBA for timing which they have complied with, is covered in Labor Relations Acts and their CBA is tied into the players contracts which are governed by the prevailing Labor Relations Act.

The players were legally locked out. That is different from Yashin illegally breaching his contract and holding out. The Senators defended their right to a remedy for the breach of contract. Holden granted that remedy.

Holden’s ultimate result was right but how he arrived at it is questionable in the text of his decision. How does the NHLPA hold Holden’s decision up for guidance when they took this position ?:
http://www.sportslawnews.com/archive/Articles 2000/Yashinloses.htm
According to a report in the National Post, the NHLPA claimed that from a legal perspective the decision is seriously flawed because the arbitrator based his decision on backroom communications between Eagleson and Ziegler, which took place in the early 1990's.

The upcoming CBA is going to be new. Holden ruled on the wording of the old CBA. When the two parties discuss this issue as is absolutely inevitable, an arbitrator doesn't rule this discussion nor is one likely to be present. Negotiations rule the day.

All the stuff later in Brooks article about default notification, etc is also getting two steps ahead of an old deal that no longer applies. It isn’t an issue that is going to arbitration now but he’s bringing up legal clauses in the old players standard players contract which will be replaced by the new deal and transition CBA clauses.

Brooks is asking readers to clean up a radiation mess with the wrong materials before a nuclear bomb has been dropped. He’s like the child who cried "Wolf!!"

 

[shveik]

From Brooks:
First of all, the precedent means squat. When they sit down to negotiate it, they negotiate how they move forward regardless of precedent. Everything is on the table. An arbitrator isn’t deciding the issue during negotiations. The two parties are.

I get what you are saying, but saying it means squat is over-simplifying. For example, let's say Keith Tkachuk decided to hold out like Yashin did, do you think the Blues' and Tkachuk's negotiating positions would be unaffected by Holden's ruling on Yashin's contract?

The NHL is not in breach of their contract with the players by locking them out. The NHL exercised it’s collective bargaining rights to lock the players out. The NHL's ability to lock the players out is covered in their CBA for timing which they have complied with, is covered in Labor Relations Acts and their CBA is tied into the players contracts which are governed by the prevailing Labor Relations Act.

The players were legally locked out. That is different from Yashin illegally breaching his contract and holding out. The Senators defended their right to a remedy for the breach of contract. Holden granted that remedy.

I do not think Holden was deciding compensation for a breach of contract here, it is not arbitrator's place to do that. In fact if I remember it right, Sens have filed an actual lawsuit against Yashin to deal with that. Holden was to interpret Yashin's contractual obligations. The Senators and NHL have claimed that the contract is to be interpreted as the total number of contract years, and not tied to specific seasons. And since there is no such clause anywhere in the CBA, they had to let former NHL commish Ziegler testify that it was agreed upon behind the scenes.

All the players contracts have expiration dates. For example, the new Yashin contract probably says *explicitly* what year it expires. Just like his old contract did. So the NHL would not have to negotiate anything and leave the matters as they are, it would've been non-issue. BUT now thanks to Yashin arbitration case it is actually an issue, because the NHL is on the record saying that the contracts are to be interpreted as the number of years, and not the actual dates, despite of what's explicitly written in the contract. Ironic, isn't it?

The upcoming CBA is going to be new. Holden ruled on the wording of the old CBA. When the two parties discuss this issue as is absolutely inevitable, an arbitrator doesn't rule this discussion nor is one likely to be present. Negotiations rule the day.

Just because the landscape is most likely going to be changed by the newly negotiated CBA, it doesn't mean that the negotiations are not affected by this. By the way, if NHL puts that the start and end date of the contract are golden, then any future Yashins will not be held accountable for the holdouts. If they put the number of years as the ruling factor, they would have to honor the 04/05 contract years.

All the stuff later in Brooks article about default notification, etc is also getting two steps ahead of an old deal that no longer applies. It isn’t an issue that is going to arbitration now but he’s bringing up legal clauses in the old players standard players contract which will be replaced by the new deal and transition CBA clauses.

Until this issue is put to rest in a new deal, it is a fair game to discuss it, do not you think? Otherwise, what is the NHL journalist to do? I mean, all CBA issues will be put to rest once the deal is in place, why waste the ink discussing it?

Brooks is asking readers to clean up a radiation mess with the wrong materials before a nuclear bomb has been dropped. He’s like the child who cried "Wolf!!"

 

[me2]

I get what you are saying, but saying it means squat is over-simplifying. For example, let's say Keith Tkachuk decided to hold out like Yashin did, do you think the Blues' and Tkachuk's negotiating positions would be unaffected by Holden's ruling on Yashin's contract?

During an active CBA.

I do not think Holden was deciding compensation for a breach of contract here, it is not arbitrator's place to do that. In fact if I remember it right, Sens have filed an actual lawsuit against Yashin to deal with that. Holden was to interpret Yashin's contractual obligations.

During an active CBA.

during an The Senators and NHL have claimed that the contract is to be interpreted as the total number of contract years, and not tied to specific seasons.

During an active CBA.

All the players contracts have expiration dates. For example, the new Yashin contract probably says *explicitly* what year it expires. Just like his old contract did. So the NHL would not have to negotiate anything and leave the matters as they are, it would've been non-issue. BUT now thanks to Yashin arbitration case it is actually an issue, because the NHL is on the record saying that the contracts are to be interpreted as the number of years, and not the actual dates, despite of what's explicitly written in the contract.

During an active CBA.

Ironic, isn't it?

Not really.

Just because the landscape is most likely going to be changed by the newly negotiated CBA, it doesn't mean that the negotiations are not affected by this.

Future contract holdouts during active CBAs might be affected.

By the way, if NHL puts that the start and end date of the contract are golden, then any future Yashins will not be held accountable for the holdouts.

Not held accountable for time lost while holding out during lockouts/strikes....

If they put the number of years as the ruling factor, they would have to honor the 04/05 contract years.

Different circumstances, Yashin holdout isn't likely to be applicable.

Until this issue is put to rest in a new deal, it is a fair game to discuss it, do not you think? Otherwise, what is the NHL journalist to do? I mean, all CBA issues will be put to rest once the deal is in place, why waste the ink discussing it?

Sure they can talk about it and the probably will. The NHLPA might ask the NHL add another year and the NHL might agree (solves lots of problems for both sides), but I doubt the NHLPA can enforce it or that Yashin sets any kind of applicable precedent.

[/QUOTE]

 

[Boltsfan2029]

If they put the number of years as the ruling factor, they would have to honor the 04/05 contract years.

Not if they agree to do otherwise during the negotiation of the new CBA. It's as simple as putting the phrase "all 2004-2005 contracts shall be considered served" into the CBA.

If the two sides agree, end of story.

 

[Weary]

A lockout is a perfectly legal option open to an employer, and by itself is not any type of unfair labor practice that will be reviewed by the NLRB or the courts. Other matters in conjunction with a lockout - a selective lockout, encouraging members to quit a union, etc - may be viewed as such.

The NHL did engage in a selective lockout. They did not lock out certain players who did not need to clear waivers prior to be assigned to the minors. This forced those players to abandon their NHLPA representation for PHPA representation. Many of those players would've been represented by the NHLPA (i.e. not assigned to the minors), if the lockout had not occurred.

Until the NLRB and courts rule that the NHL lockout was legal and justifiable, there is room for doubt.

 

[Jarqui]

I get what you are saying, but saying it means squat is over-simplifying. For example, let's say Keith Tkachuk decided to hold out like Yashin did, do you think the Blues' and Tkachuk's negotiating positions would be unaffected by Holden's ruling on Yashin's contract?

Here's part of clause one of the current CBA:
This CBA, together
with all Exhibits hereto, supersedes and replaces all prior CBA's
and Memoranda of Understanding between the parties.

There will be a simlar clause in the new CBA. Count on it. Standard players contracts exist and in some new form, will continue to exist. The terms and conditions under which they will continue to exist will be defined in the new CBA with a bunch under the section known as "Transition".

At the end of all that, Holden's ruling is extremely likely to mean nothing. It will be the wording of the new CBA that they must go by. They could replace all the wording in the standard players contracts and lift the dollars and newly agreed upon expiry dates into a new standard players contract.

I do not think Holden was deciding compensation for a breach of contract here, it is not arbitrator's place to do that.

Holden was asked by the NHLPA to rule on the expiry of Yashin's deal.

In fact if I remember it right, Sens have filed an actual lawsuit against Yashin to deal with that.

And then the Sens dropped it.

Holden was to interpret Yashin's contractual obligations. The Senators and NHL have claimed that the contract is to be interpreted as the total number of contract years, and not tied to specific seasons. And since there is no such clause anywhere in the CBA, they had to let former NHL commish Ziegler testify that it was agreed upon behind the scenes.

That's pretty close to what I recall. But the NHLPA had a very solid point from the clause one I quoted above. What Ziegler had to say should probably not have been considered.

All the players contracts have expiration dates. For example, the new Yashin contract probably says *explicitly* what year it expires. Just like his old contract did. So the NHL would not have to negotiate anything and leave the matters as they are, it would've been non-issue. BUT now thanks to Yashin arbitration case it is actually an issue, because the NHL is on the record saying that the contracts are to be interpreted as the number of years, and not the actual dates, despite of what's explicitly written in the contract. Ironic, isn't it?

And that only holds if they do not clearly define the issue in the new CBA. You can bet big money that they will which will render everything about Yashin & Holden as absolutely meaningless history with respect to going forward with the new deal.

Just because the landscape is most likely going to be changed by the newly negotiated CBA, it doesn't mean that the negotiations are not affected by this.

Negotitations are affected by this only in terms of placing the issue high on their hit list to make sure it gets clearly resolved in the wording of the new deal.

By the way, if NHL puts that the start and end date of the contract are golden, then any future Yashins will not be held accountable for the holdouts. If they put the number of years as the ruling factor, they would have to honor the 04/05 contract years.

that would be true only if the new wording in the new deal says that it the way it will be handled going forward - which is highly unlikely.

Until this issue is put to rest in a new deal, it is a fair game to discuss it, do not you think? Otherwise, what is the NHL journalist to do? I mean, all CBA issues will be put to rest once the deal is in place, why waste the ink discussing it?

I think it is fair game to discuss it in terms of an issue that needs to be resolved. An article that explored the pros and cons of extending the dates vs not extending the dates for each side, maybe looking at different cases of player types (young vs old, or rich vs poor or whatever one might imagine as meaningful and informative) could have been quite interesting and contributed something to the readers.

An article that dwells on past decisions and clauses, that are so likely to be replaced or obsoleted by this CBA process, as if they are some sort of present threat is misleading and largely a waste of time. Brooks is trying to get everyone excited with nonsense facts. He's a media troll.

 

[RangerBoy]

Found this in the LA Times

Whether the lockout will erase a season from players' contracts is subject to bargaining between the NHL and the players' union, but the Kings and other NHL clubs are assuming it will.

http://www.latimes.com/sports/la-sp...y?coll=la-headlines-sports&ctrack=3&cset=true

 

[kdb209]

Originally Posted by kdb209
A lockout is a perfectly legal option open to an employer, and by itself is not any type of unfair labor practice that will be reviewed by the NLRB or the courts. Other matters in conjunction with a lockout - a selective lockout, encouraging members to quit a union, etc - may be viewed as such.

The NHL did engage in a selective lockout. They did not lock out certain players who did not need to clear waivers prior to be assigned to the minors. This forced those players to abandon their NHLPA representation for PHPA representation. Many of those players would've been represented by the NHLPA (i.e. not assigned to the minors), if the lockout had not occurred.

Until the NLRB and courts rule that the NHL lockout was legal and justifiable, there is room for doubt.

But assigning eligible players to the AHL was done before the lockout, while the old CBA was still in effect. The teams merely exercised their legal options under the old CBA which the PA (and individual players in their SPC) had agreed to.

It's hard to sue for excercising your rights that the PA and players explicitly gave you in the past CBA.

Actions that are covered by the terms of a CBA are pretty much immune to being challenged on anti-trust or other labor law grounds.

And no, it's not a selective lockout - those players are not eligible to play in the NHL. They are not being discriminated against - no players are eligible to play in the NHL. Any issues of selective lockout will only be germain if the league goes down a replacement player route.

 

[Weary]

But assigning eligible players to the AHL was done before the lockout, while the old CBA was still in effect. The teams merely exercised their legal options under the old CBA which the PA (and individual players in their SPC) had agreed to.

It's hard to sue for excercising your rights that the PA and players explicitly gave you in the past CBA.

Actions that are covered by the terms of a CBA are pretty much immune to being challenged on anti-trust or other labor law grounds.

Under the terms of the old CBA, those assignments are not allowed unless a team maintains a minimum number of roster players. I don't think there is a single team that meets the roster minimum. So if the teams were using the CBA as justification for the assignments, they lose that justificaiton by not abiding by other terms of the agreement.

And no, it's not a selective lockout - those players are not eligible to play in the NHL. They are not being discriminated against - no players are eligible to play in the NHL. Any issues of selective lockout will only be germain if the league goes down a replacement player route.

They are not eligible to play in the NHL? Several of them already have. Many spent the whole 2003-04 season in the NHL. They were specifically assigned to the AHL so the NHL teams wouldn't lose use of their services during the lockout.

They are assuredly being discriminated against. Consider the treatment they received compared to other players with two-way contracts and players with one-way contracts. Those others were free to do as they wished for the duration of the lockout.

By enforcing the SPC's of certain players during the lockout, the league acknowledges that the absence of a CBA agreement does not void existing contracts. Given that acknowledgement, maybe Larry Brooks is right.

 

[kdb209]

Originally Posted by kdb209
But assigning eligible players to the AHL was done before the lockout, while the old CBA was still in effect. The teams merely exercised their legal options under the old CBA which the PA (and individual players in their SPC) had agreed to.

It's hard to sue for excercising your rights that the PA and players explicitly gave you in the past CBA.

Actions that are covered by the terms of a CBA are pretty much immune to being challenged on anti-trust or other labor law grounds.

Under the terms of the old CBA, those assignments are not allowed unless a team maintains a minimum number of roster players. I don't think there is a single team that meets the roster minimum. So if the teams were using the CBA as justification for the assignments, they lose that justificaiton by not abiding by other terms of the agreement.

Nope. There is no such term in the old CBA. The only reference I find to player assignments and roster minimums is the clause that allows a team to do emergency recalls during the last 26 days of the season.

So, please cite and point out this term. It is not listed in "ARTICLE 13 - Waivers and Loans of Players to Minor League Clubs; Waiver Draft"

http://www.nhlcbanews.com/cba/article13.html

nor in any other section I can find of the CBA.

And no, it's not a selective lockout - those players are not eligible to play in the NHL. They are not being discriminated against - no players are eligible to play in the NHL. Any issues of selective lockout will only be germain if the league goes down a replacement player route.

They are not eligible to play in the NHL? Several of them already have. Many spent the whole 2003-04 season in the NHL. They were specifically assigned to the AHL so the NHL teams wouldn't lose use of their services during the lockout.

They were not eligible to play in the NHL in 2004-05 because of the lockout. No one was eligaible to play in the NHL in 2004-05 because of the lockout. Therefore it was not a selective lockout - the NHL lockout itself does not discriminate against any class of worker and would be permissible under the tests of American Ship Building.

They are assuredly being discriminated against. Consider the treatment they received compared to other players with two-way contracts and players with one-way contracts. Those others were free to do as they wished for the duration of the lockout.

But they are being discriminated against in a perfectly legal manner, under the terms of the expired CBA, negotiated and agreed to by the players. It was fully within the teams rights under the old CBA to transfer the players to an AHL club and the team excersised those rights before the previous CBA expired.

By enforcing the SPC's of certain players during the lockout, the league acknowledges that the absence of a CBA agreement does not void existing contracts. Given that acknowledgement, maybe Larry Brooks is right.

No one has said that the absence of a CBA voids existing contracts. Actually labor law holds that the terms of an existing CBA remain in place untill superceded by a new CBA. If the lack of a CBA voided the contracts, all the players would be UFAs and no one (not even Larry Brooks) has contended that.

In fact, this was what messed up MLB in 1995. They did not declare an impasse, so the terms of the old CBA were still legally in place, and they unilaterally made changes to salary arbitration and free agency - mandatory subjects of negotiation that could not be unilaterally changed without a new negotiated or imposed (impasse) CBA. That was the unfair labor practice that got the court injunction.

Were contracts voided in 1992 when the league played an entire season without a CBA (before the players strike right before the playoffs). No, play continues under the terms of the old, expired CBA.

No, the owners are not selectively enforcing the SPCs. Employment contracts are pay for performance. The players have not provided their services (for the perfectly legal reason of a lockout) and they don't get paid.

And as I've said before, all these transition issues will be dealt with in a new CBA which will short circuit any potential legal challenges.

 

[Weary]

Nope. There is no such term in the old CBA. The only reference I find to player assignments and roster minimums is the clause that allows a team to do emergency recalls during the last 26 days of the season.

So, please cite and point out this term. It is not listed in "ARTICLE 13 - Waivers and Loans of Players to Minor League Clubs; Waiver Draft"

http://www.nhlcbanews.com/cba/article13.html

nor in any other section I can find of the CBA.

From section 16.4:

There
shall be no reduction of the required minimum Playing Rosters of
the Clubs, except in case of emergency, below eighteen skaters
and two goalkeepers.​

From section 16.5:

A player under contract to a Club shall be deemed to be on the Club's Playing Roster during the regular season or playoffs only if he is assigned to the Club or if he is assigned by the Club temporarily to a minor league club for conditioning purposes under Section 13.8 hereof. During training camp, such player shall be deemed to be on the Club's Playing Roster only if he had been on the Club's Playing Roster after the trading deadline in the preceding season on other than an emergency recall basis.​

They were not eligible to play in the NHL in 2004-05 because of the lockout. No one was eligaible to play in the NHL in 2004-05 because of the lockout. Therefore it was not a selective lockout - the NHL lockout itself does not discriminate against any class of worker and would be permissible under the tests of American Ship Building.

I think you're misusing the word eligible. If the players were not eligible, then they wouldn't be able to play if there weren't a lockout.

And as I've said before, all these transition issues will be dealt with in a new CBA which will short circuit any potential legal challenges.

And the fact that there could be legal challenges should be evidence that the legality of the NHL's actions isn't 100% certain.

 

[shveik]

And that only holds if they do not clearly define the issue in the new CBA. You can bet big money that they will which will render everything about Yashin & Holden as absolutely meaningless history with respect to going forward with the new deal.

Negotitations are affected by this only in terms of placing the issue high on their hit list to make sure it gets clearly resolved in the wording of the new deal.

You have your right to think that the longstanding NHL position on the contract term interpretation, which is to count the number of contract years, will not stop them from doing 180 degrees and asking for exactly opposite in the negotiations. I cannot be so sure about this, but I would not be totally surprised if it goes that way.

that would be true only if the new wording in the new deal says that it the way it will be handled going forward - which is highly unlikely.

I think it is fair game to discuss it in terms of an issue that needs to be resolved. An article that explored the pros and cons of extending the dates vs not extending the dates for each side, maybe looking at different cases of player types (young vs old, or rich vs poor or whatever one might imagine as meaningful and informative) could have been quite interesting and contributed something to the readers.

An article that dwells on past decisions and clauses, that are so likely to be replaced or obsoleted by this CBA process, as if they are some sort of present threat is misleading and largely a waste of time. Brooks is trying to get everyone excited with nonsense facts. He's a media troll.

He is trying to get everyone excited, but you are placing the standards of the research article on a newspaper column. That's just not a realistic expectation.

As for dwelling on the past, that's all we freaking have right now. There is no new CBA, all we have is the old one! He is analizing the current situation based on the only solid information available. Present murky state might or might not be cleared by the new CBA (after all, Bettman was trying to get the number of years contract interpretation into the old CBA, didn't happen), but we cannot know if and which way it will go without the crystal ball.

 

[me2]

Under the terms of the old CBA, those assignments are not allowed unless a team maintains a minimum number of roster players. I don't think there is a single team that meets the roster minimum. So if the teams were using the CBA as justification for the assignments, they lose that justificaiton by not abiding by other terms of the agreement.

Is there any great meaning to this though?

The NHLPA and the NHL have organised this together, both sides wanted a list of who to send down and who to lock out. I don't see why the NHLPA would have any problems with it since they were in on the whole shebang. I suppose the NHL clubs could have locked every one out including the AHLers, but that isn't good for the players.

Has a single player assigned to the minors complained about not being locked out with the NHLers instead? Koltsov went back to Russia, but that was fairly unrelated.

Any attempt to push the fact the rosters are undersized isn't likely to get very far. The old CBA is pretty much extinct now we have entered a lockout. The SPC specially allows teams to assign players, and the CBA is dead enough to be fairly worthless.

The BC law is written
"The term of a collective agreement may sometimes expire before a new agreement is reached between the employer and union. In such cases, the terms of the collective agreement remain in effect after its expiry date until either a new agreement is negotiated, a strike or lockout commences, or the union is decertified – whichever occurs first."

I'm not sure of the NRLB's exact position though.

They are not eligible to play in the NHL? Several of them already have. Many spent the whole 2003-04 season in the NHL. They were specifically assigned to the AHL so the NHL teams wouldn't lose use of their services during the lockout.

But there is no NHL for them to play in, which was his point (not that they hadn't been NHLers). I suppose these players could argue they want to be locked out instead. But there doesn't seem to be any such calls.

They are assuredly being discriminated against. Consider the treatment they received compared to other players with two-way contracts and players with one-way contracts. Those others were free to do as they wished for the duration of the lockout.

The NHL and NHLPA worked on that and agreed on lists. I haven't seen the NHLPA disagree, since they know its good for their younger member to play and earn some money.

By enforcing the SPC's of certain players during the lockout, the league acknowledges that the absence of a CBA agreement does not void existing contracts. Given that acknowledgement, maybe Larry Brooks is right.

All of the 2004-05 contracts are still valid contracts, that isn't in dispute. While contracts are still valid they are legally locked out and not going to getting paid. Time is stilling ticking on those contracts.

If the NHLPA (and their backers here) wanted to be go after a more interesting point I'd target qualifying offers that won't get made this year making players UFAs. Then again, that'll be dealt with in any new CBA, so its moot.