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

[PecaFan]

Conspiracy relating to professional sport
48. (1) Every one who conspires, combines, agrees or arranges with another person

(a) to limit unreasonably the opportunities for any other person to participate, as a player or competitor, in professional sport or to impose unreasonable terms or conditions on those persons who so participate, or

(b) to limit unreasonably the opportunity for any other person to negotiate with and, if agreement is reached, to play for the team or club of his choice in a professional league

Now all we need to do is define "reasonable".

I'm just an average joe, but I think it's pretty damn reasonable to compensate someone to the tune of millions of dollars in recognition of their giving up certain rights (ie, the draft, exclusive rights etc.)

I think it's also reasonable that a sport needs a draft, in order to help the lesser teams get better. It's also reasonable that there's a period of exclusivity, recognising the nature of the sport (excessive turnover is bad for the consumer, and financial inequities amongst the competitors).

But that's just me.

 

[ladybugblue]

There is a link to a Toronto Star article talking about Impasse in the thread called "The NHL's next move will be to" indicate what may happen going forward. Not sure about those involved but maybe an impasse may happen sooner rather than later and maybe this is where the NHL will go next. Interesting read...

http://www.thestar.com/NASApp/cs/Co...044442957278&DPL=IvsNDS/7ChAX&tacodalogin=yes
Thanks to the poster that pointed out the article.

 

[me2]

Yes, but generally the employees arnt multi-millionaires who can hire gads of lawyers(not to mention agents yes men and Goodenows) to protect their rights.

They don't need gads of lawyers, just a handful of good ones. The richest players have more than enough money to fund cases. The NHLPA has more than enough money to fund cases. The longer the case drags on the bigger the payout the players get at the end if they win. Gads of lawyers wouldn't save the owners.

 

[me2]

Now all we need to do is define "reasonable".

I'm just an average joe, but I think it's pretty damn reasonable to compensate someone to the tune of millions of dollars in recognition of their giving up certain rights (ie, the draft, exclusive rights etc.)

I think it's also reasonable that a sport needs a draft, in order to help the lesser teams get better. It's also reasonable that there's a period of exclusivity, recognising the nature of the sport (excessive turnover is bad for the consumer, and financial inequities amongst the competitors).

But that's just me.

They've had one for yonks. The NHLPA has approved one every time. Its in the majority of prospects interests to get teams to look after them (maybe not the 1st rounders but certainly the 4th, 5th...9th rounders). Certainly reasonable for a draft to exist, whether they'd be allowed is another matter.

 

[me2]

Unions are specifically exempted from antitrust laws and have been since they have been no longer considered criminal conspiracies in restraint of trade.

The law recognizes that there is inequality of bargaining power on the part of employers and allows unions to organize and bargain collectively.

Here is the declaration of principles excerpted from the NLRA:

I wonder if that would extend to players after decertification? Contractors working together to fix prices.... Sounds fishy enough to be worth looking at by the NHL lawyers. I'm not sure it would win, but interesting.

 

[me2]

Blackballing one team for being over a salary limit is collusion.

Absolutely. However the NHL could hold 2 competitions. Over $40m teams play for the Golden Dollars, under $40m play for the Stanley Cup. Teams choose which they want. No collusion.

The NHL can handicap the league, points divided by payroll modifier = playoff standing.

Of course none of these are going to happen.

 

[Wetcoaster]

Now all we need to do is define "reasonable".

I'm just an average joe, but I think it's pretty damn reasonable to compensate someone to the tune of millions of dollars in recognition of their giving up certain rights (ie, the draft, exclusive rights etc.)

I think it's also reasonable that a sport needs a draft, in order to help the lesser teams get better. It's also reasonable that there's a period of exclusivity, recognising the nature of the sport (excessive turnover is bad for the consumer, and financial inequities amongst the competitors).

But that's just me.

It has already been defined by the courts.

The US has similar language (i.e. reasonableness) in its case law on antitrust. The Competiton Act for the most part put the US case law on antitrust in statutory form.

A salary cap would not be reasonable because that would be collusion to suppress salaries. Nor would a draft be reasonable because that would be tying up a person's right to freely contract. Reserve clauses have been held to be antit-competitive, the Curt Flood case established that clearly.

Without a CBA the NHL could not expect to continue with those practises.

 

[Wetcoaster]

Yes, but generally the employees arnt multi-millionaires who can hire gads of lawyers(not to mention agents yes men and Goodenows) to protect their rights.

Most unions have legal counsel, some in house and others are outside counsel hired on a contract basis as neede

 

[Wetcoaster]

There is a link to a Toronto Star article talking about Impasse in the thread called "The NHL's next move will be to" indicate what may happen going forward. Not sure about those involved but maybe an impasse may happen sooner rather than later and maybe this is where the NHL will go next. Interesting read...

http://www.thestar.com/NASApp/cs/Co...044442957278&DPL=IvsNDS/7ChAX&tacodalogin=yes
Thanks to the poster that pointed out the article.

That would be fine except a colleague of mine who practises labour law in Washington DC tells me that Rosenfeld's term expires this summer and it is unlikely that he would be involved given the time frames for a complaint and investigation.

He told me that in these sort of changeovers, they take a good deal of time for the new general counsel to get up to speed and that the NLRB in such circumstances seldom if ever deviates from the norm - so unlikely that an impasse would get through. Also he pointed out that Bush has never been in much of hurry to fill vacancies at the NLRB as he is as my friend put it... "occupied with other things at the moment."

 

[Wetcoaster]

I wonder if that would extend to players after decertification? Contractors working together to fix prices.... Sounds fishy enough to be worth looking at by the NHL lawyers. I'm not sure it would win, but interesting.

I understand that was an argument that was considered and discarded during the NFL dispute in 1987.

 

[me2]

It has already been defined by the courts.

The US has similar language (i.e. reasonableness) in its case law on antitrust. The Competiton Act for the most part put the US case law on antitrust in statutory form.

A salary cap would not be reasonable because that would be collusion to suppress salaries. Nor would a draft be reasonable because that would be tying up a person's right to freely contract. Reserve clauses have been held to be antit-competitive, the Curt Flood case established that clearly.

Without a CBA the NHL could not expect to continue with those practises.

Dump the cap, implement a wage scale between $300K minimum and $4m maximum (including bonuses). I'd guess that would be more likely to get through, after all thousands of factory workers are on fixed wages.

 

[thinkwild]

I reckon the owners are free to establish that wage scale. The question is, how do they get the best players in the world they are after, to agree to it? There's no rule that the NHL has to be the best league in the world. It seems to me, about 75% of fans, judging by polling here, are hoping that is the end result.

 

[me2]

I reckon the owners are free to establish that wage scale. The question is, how do they get the best players in the world they are after, to agree to it? There's no rule that the NHL has to be the best league in the world. It seems to me, about 75% of fans, judging by polling here, are hoping that is the end result.

1. $4m is big money, even by the best RSL standards. It'd probably work to get a big chunk of the lower paid members back.

2. It'll act like a cap, and keep teams down around low $30ms.

3. Players, especially the best ones, would freak at such an offer.


Trading a $42.5-$45m cap for a system that is much worse, ouch. "Anyone want to head back to the bargaining table? Is that $42.5m still around? Quick grab it!"

 

[thinkwild]

We'll see. Was that offer ever really there thinking it would be accepted? When the players went to the notorious Saturday meeting, they found the details of the offer were worse than they thought. But was that worse offer actually on the table or just bantered about during an antagonistic meeting? What is the final and best offer the owners have put on the table? Have they put it on the table yet? Or are they still negotiating?

And the players went into this expecting to lose, their opening offer was a paycut. What's much worse?



Its repeatedly stated the cap should be $30mil. Its a nice number, but the market seems to beg to differ. I would of thought a normal response would be to reshape the market, not slice the top off. But if the market were capped, why should the players surrender their right to free agency at all, even rookies? Perhaps it will all work out for the best.

 

[R0CKET]

You know I don't know if the fans would want to pay to see scab hockey, but I'll tell you this...I sure as hell would lay down good money to go to as many games as possible to stick it up the NHLPAs azz.

THAT would be my best way at getting back at those bastards and the fastest way to gety them to figure out what the F is going on.

Somehow, I got the feeling that more than a few would also pay to go just for this one reason.

Bring on the replacements and lets get this game going again.

 

[mr gib]

You know I don't know if the fans would want to pay to see scab hockey, but I'll tell you this...I sure as hell would lay down good money to go to as many games as possible to stick it up the NHLPAs azz.

THAT would be my best way at getting back at those bastards and the fastest way to gety them to figure out what the F is going on.

Somehow, I got the feeling that more than a few would also pay to go just for this one reason.

Bring on the replacements and lets get this game going again.

don't forget the 8 dollar half glasses of bad draught beer

 

[thinkwild]

You know I don't know if the fans would want to pay to see scab hockey, but I'll tell you this...I sure as hell would lay down good money to go to as many games as possible to stick it up the NHLPAs azz.

You would be paying moeny to the owners, to get back at the players? And you think this will make them cave? It seems they have you right where they want you. Why cave now? How long would you go on paying for these tickets and bad draught beers? 1 month? 2 months? What if your scab team has no chance at the playoffs by January? Will you pay in February? Maybe your owner will be able to make a big scab deal for a top scab player at the trade deadline to take you over the top. If you want better players that is. Maybe they'll lower beer prices.

 

[Epsilon]

You know I don't know if the fans would want to pay to see scab hockey, but I'll tell you this...I sure as hell would lay down good money to go to as many games as possible to stick it up the NHLPAs azz.

THAT would be my best way at getting back at those bastards and the fastest way to gety them to figure out what the F is going on.

Somehow, I got the feeling that more than a few would also pay to go just for this one reason.

Bring on the replacements and lets get this game going again.

I seriously question the sanity of people with this attitude. I have way better things to do with my hard earned money than turn it over to a bunch of billionaires offering a substandard product just to "stick it" to a bunch of people I don't even know.

 

[Fredrik]

Nor would a draft be reasonable because that would be tying up a person's right to freely contract.

If I understand this correctly a draft is only acceptable because it's been included in the CBA. But players selected during the entry draft aren't members of NHLPA so how can the entry draft be legal? What can the NHL do if Crosby signs for the Canadiens?

 

[Chayos]

I seriously question the sanity of people with this attitude. I have way better things to do with my hard earned money than turn it over to a bunch of billionaires offering a substandard product just to "stick it" to a bunch of people I don't even know.

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

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

 

[Poignant Discussion*]

You know I don't know if the fans would want to pay to see scab hockey, but I'll tell you this...I sure as hell would lay down good money to go to as many games as possible to stick it up the NHLPAs azz.

THAT would be my best way at getting back at those bastards and the fastest way to gety them to figure out what the F is going on.

Somehow, I got the feeling that more than a few would also pay to go just for this one reason.

Bring on the replacements and lets get this game going again.

Sure you would

Either you are lying or foolish enough to spend 60+ dollars to see East Coast hockey played

 

[Poignant Discussion*]

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

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

I seriously doubt any player that wants to play in the NHL for longer than 1 or 2 years would be a SCAB

 

[Wetcoaster]

If I understand this correctly a draft is only acceptable because it's been included in the CBA. But players selected during the entry draft aren't members of NHLPA so how can the entry draft be legal? What can the NHL do if Crosby signs for the Canadiens?

The courts in the US have ruled previously in several cases in which college players have challenged the draft that it is acceptable for them to be included and that the union can negotiate on behalf of future members. The most recent case was Maurice clarrett's suit against the NFL where he argued that since he was not a union member he could not be bound by the draft rules. A US federal court disagreed.

There would be nothing to prevent drafted players from signing elsewhere such as in Europe and that could be a defintie possibility if the NHL were to supress entry level salaries to too low a level. Someone like Crosby could be signed to a much better deal in Russia than he would get in the NHL.

Currently during the lockout NHL teams are prohibited from signing any player and if any team did so it would likely be fined and any contract voided. However what would be interesting would be personal services contract of the sort used by Peter Pocklington to ensure that Gretzky did not go into the merger draft when the WHA merged with the NHL.

 

[Chilly Willy*]

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

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

Russ Conway who?

 

[me2]

If I understand this correctly a draft is only acceptable because it's been included in the CBA. But players selected during the entry draft aren't members of NHLPA so how can the entry draft be legal? What can the NHL do if Crosby signs for the Canadiens?

Crosby is 100% entitled to skip the draft. The Habs are 100% entitled to sign him. He just wouldn't qualify to play in the NHL under the CBA, what they do with him is their choice after that: water boy, practice partner, concubine, fluffer, whatever else.

From the old CBA

8.9. Eligibility for Play in the League. No player shall be eligible for play in the League unless he:

1. had been claimed in the 1994 Supplemental Draft or in the last Entry Draft, or was ineligible for claim in the 1994 Supplemental Draft or under Section 8.4(a); or

2. had been eligible for claim in the last Entry Draft but was unclaimed, and
[blah blah blah more clauses blah blah blah]