Start from scratch with replacement players?

[Madevilz]

I firmly belive that the owners will not settle down, for the first time you see they are staying strong. A cap is the only solution for them, and I doubt the NHLPA will accept it anytime soon. The season is certainly canceled, and next year is also doubtful. Now, about replacement players, some people say they dont want them, fine, but I still think the owners should use them. The ratings will be low, the hockey will be crap, for about a year or two. But then all the younger draftees like Crosby and Brule will eventually make it to the league. Give it 4-5 years and we'll have a league full of young talented players, all the cry babies from the NHLPA can go to europe for that matter.

Click to read more...

 

[FLYLine27*]

Here we go again......

 

[LesCanadiens]

I totally agree. It's time to put the pedal to the metal.

The players feel insulted that the NHL wants to institute a salary cap. Golly gee, all other pro NA leagues have one, and co-exist just fine, but no...the NHLPA are special and the NHL have hurt there wittle feelings with the mean words like "we need a cap". Makes me ill.

Time to go with replacement players. Many of the NHLPA will migrate to some newly formed bush league (see WHA), some will stay with the NHL. Eventually, the newly formed bush league will crumble (see WHA) and they'll all come back with their tails between there legs (see WHA) because generally, the fans will only respect a league if it is called the NHL. That is a fact (see WHA).

 

[Greschner4]

I firmly belive that the owners will not settle down, for the first time you see they are staying strong. A cap is the only solution for them, and I doubt the NHLPA will accept it anytime soon. The season is certainly canceled, and next year is also doubtful. Now, about replacement players, some people say they dont want them, fine, but I still think the owners should use them. The ratings will be low, the hockey will be crap, for about a year or two. But then all the younger draftees like Crosby and Brule will eventually make it to the league. Give it 4-5 years and we'll have a league full of young talented players, all the cry babies from the NHLPA can go to europe for that matter.

Yes it is time and the players will be shocked at how many people show up to watch the sweater and not the players in them.

 

[davidwii]

Yes it is time and the players will be shocked at how many people show up to watch the sweater and not the players in them.

Here Here.......

 

[Old Hickory]

Golly gee, all other pro NA leagues have one, and co-exist just fine, but no...the NHLPA are special and the NHL have hurt there wittle feelings with the mean words like "we need a cap".

The NFL is the only one with a Hard Cap. MLB and the NBA have soft caps. Proposals from the players have included a soft cap.

 

[Eddie Vedder]

bring on the replacements. give it a few years and the ahl level talent will be sifted back down to where they belong as the new stars of the drafts come up

 

[mr gib]

Here we go again......

no kidding - they can't do it - it's against the law -

 

[HckyFght*]

bring on the replacements. give it a few years and the ahl level talent will be sifted back down to where they belong as the new stars of the drafts come up

It won't take that long and the hockey won't be that bad. There will be so many NHLers crossing the line to play it'll make for a fine competetive league. In actuality, the only ones not to eventually cross the line will be those who should have retired already, anyway! But the league has been trying to get the union to the table for two years. They should have declared an impasse on Sept 16 and started the season on time with scabs in every market where it was legally possible!
-HckyFght!

 

[BLONG7]

Yes it is time and the players will be shocked at how many people show up to watch the sweater and not the players in them.

So if the majority of us can see this, why can't these guys in the PA???Union??? Whatever they are ???

 

[BLONG7]

It won't take that long and the hockey won't be that bad. There will be so many NHLers crossing the line to play it'll make for a fine competetive league. In actuality, the only ones not to eventually cross the line will be those who should have retired already, anyway! But the league has been trying to get the union to the table for two years. They should have declared an impasse on Sept 16 and started the season on time with scabs in every market where it was legally possible!
-HckyFght!

The fact that half of the PA are scabs in Europe right now, should provide for an interesting arguement down the line at some point...

 

[Epsilon]

The fact that half of the PA are scabs in Europe right now, should provide for an interesting arguement down the line at some point...

Uh, no it won't, because the players are not scabs. The European leagues are not in the middle of a work stoppage.

 

[BLONG7]

Uh, no it won't, because the players are not scabs. The European leagues are not in the middle of a work stoppage.

You say tomato and I say tomatoe...

 

[GKJ]

bring on the replacements. give it a few years and the ahl level talent will be sifted back down to where they belong as the new stars of the drafts come up

That would take like 30 years. Guys like Sidney Crosby and Phil Kessel don't want to be stars in a league with replacement players.



The people who want to see replacement players can either go see an ECHL game, or you deserve to flush your money away and have your time wasted. When the real NHL comes back, don't come a knockin on our door.

 

[AM]

flush your money away?

That would take like 30 years. Guys like Sidney Crosby and Phil Kessel don't want to be stars in a league with replacement players.



The people who want to see replacement players can either go see an ECHL game, or you deserve to flush your money away and have your time wasted. When the real NHL comes back, don't come a knockin on our door.

You mean like many small market fans have been forced to do for the past 10 years?

Dont think too much of your opinion.

 

[Habs13]

if the locked out players can play elsewhere, I don't see why the teams can't bring in replacements.. I've said this before, I'll follow and support ANYBODY wearing the Habs jersey.

 

[Madevilz]

if the locked out players can play elsewhere, I don't see why the teams can't bring in replacements.. I've said this before, I'll follow and support ANYBODY wearing the Habs jersey.

 

[BLONG7]

if the locked out players can play elsewhere, I don't see why the teams can't bring in replacements.. I've said this before, I'll follow and support ANYBODY wearing the Habs jersey.

Here, here!!! It's the teams and the league, not the players, now more than ever!!!!

 

[hockeytown9321]

The fact that half of the PA are scabs in Europe right now, should provide for an interesting arguement down the line at some point...

What the hell are you talking about?

 

[Wetcoaster]

I firmly belive that the owners will not settle down, for the first time you see they are staying strong. A cap is the only solution for them, and I doubt the NHLPA will accept it anytime soon. The season is certainly canceled, and next year is also doubtful. Now, about replacement players, some people say they dont want them, fine, but I still think the owners should use them. The ratings will be low, the hockey will be crap, for about a year or two. But then all the younger draftees like Crosby and Brule will eventually make it to the league. Give it 4-5 years and we'll have a league full of young talented players, all the cry babies from the NHLPA can go to europe for that matter.

OK. Basic Sports Labour Law 101 or perhaps I should publish it as "Sports and Labour/Labor Law for Dummies".

An employer cannot simply use replacement players (or replacement workers for that matter). If you could no company would ever negotiate, they would simply restart each time and avoid negotiating with the union. the goal of labour law is collective bargaining to reach an agreement.

Also bear in mind the NHL is trans-border operation. In the US the applicable labour law is federal and under the auspices of the NLRB. In Canada the jurisdiction is provincial and subject to the labour codes of the home provinces of the Canadian NHL teams (BC, Alberta, Ontario and Quebec) and the respective provincial labour relations boards.

In the US to get to replacement workers, you must make sure there is in fact a bargaining impasse before you declare it, because if you are wrong, the financial liabilities can be horrendous. A declaration is only possible after complete deadlock and after making your final best offer to the union. The offer must be comprehensive (in other words a replacement CBA), if rejected by the union then you must implement that offer as the temporary CBA. Only then you are entitled to re-open and try to get replacements to run your business.

BASIC PRINCIPLE - a bargaining impasse and use of replacements is a TEMPORARY measure and the labour dispute continues. That has some very interesting immigration law implications in the US and Canada noted below.

The union has several options if the employer declares an impasse. The union can then strike and/or seek a ruling from the NLRB that the employer committed an unfair labour practise (e.g there was in fact no bargaining impasse). The NLRB upholds very few impasse declarations.

In 1994 MLB declared an impasse, imposed a CBA and opened with "Scab Ball" after lengthy face to face negotiations, significant movement by the MLB owners on a number of issues, use of a federal mediator and even an attempt by President Clinton to mediate. MLB lost at the NLRB and were ordered to play for two more years under the previous CBA.

An impasse declaration is not easy to get confirmed by the NLRB and if the owners lose they are on the hook for the salaries owing to the players during the time they operated under the voided declaration of impasse.

BTW in the 1994 labour dispute replacement players could not be used by the Toronto Blue Jays or Montreal Expos as Canadian provincial labour laws prohibited the use of replacement workers absolutely. Subsequently the law was changed in Ontario by the Harris government but it has been proposed by the current government to re-impose the ban on replacement workers.

In Canada there is no procedure for an impasse declaration. Currently both BC (Vancouver Canucks) and Quebec (Montreal Canadians) prohibit the use of replacement workers under their labour codes. In Quebec the Habs players have not formally certified themselves as labour union local so technically replacement players might be possible but a quick 5 minute vote as occurred with the Expos in 1994 would bring the replacement worker ban completely into effect. As noted the ban on replacement workers may be re-imposed in Ontario and that would cover the Leafs and Senators. That would leave Calgary and Edmonton but as noted there is no procedure for impasse declaration and there is no guarantee the Alberta Labour Board would allow replacement players.

Another option the NHLPA has is decertification. In the last disputes with the NBA and MLB, the player associations threatened decertification and the owners backed down. Decertification is often referred to a s nuclear deterrent because the players lose the protection of the union and is likely a last resort tactic but a very effective one if used properly.

The reason the owners fear decertification is that decertification would result in the loss of protection from anti-trust law in the US and competition law in Canada. Pro sports can operate in breach of anti-trust law only so long as they have a CBA to protect them and decertification ends that. In 1950 the US Supreme Court ruled that anti-trust law applied to pro sports (except baseball which had an exemption) in the case of Radovich v. NFL. If the owners breach anti-trust law which would include such things as an Entry Draft, reserve clause for players (i.e. players become free agents at the end of each contract without such a clause) or any other non-competitive practise then the NHL would be lioable for "treble (triple) damages" under US laws and the US courts are very quick to rule against breaches of anti-trat law.

In Canada we have similar law under the Competition Act, An Act to provide for the general regulation of trade and commerce in respect of conspiracies, trade practices and mergers affecting competition. Fines to be imposed in Canada have no upper limit and are at the discretion of the court. Canadian law has specific provisions that apply to professional sports IF there is no CBA:

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

is guilty of an indictable offence and liable on conviction to a fine in the discretion of the court or to imprisonment for a term not exceeding five years or to both.

In 1987 the NFL "broke" the union with replacement players but the players ultimately prevailed by decertifying and won free agency as one of the concessions. It also generated a couple of hundred anti-trust actions which but for one the owners finally settled in return for granting free agency to the players along with other concessions.

For a detailed review of the decertification process in that dispute see this material from the one leading sports and entertainment labour law experts, Paul Weiler (a Canadian by birth whose brother, Joe teaches labour and sports law at the University of BC law school and who was Chairman of the BC labour Relations Board in the past)who is a professor at Harvard law school. For everything you ever wanted to know about sports labour law, anti-trust law, etc but were afraid to ask see Professor Weiler's 380 page book, "Levelling the Playing Field" online at:
http://www.hup.harvard.edu/educators/pdf/weilex.pdf

For the actual NFL decertification information see pages 108-110.

For a recap of the 1994 hockey lockout see pages 111-112.

For anti-trust law and how it interrelates to pro sports see pages 150-169.

So if the NHL declares an impasse they better pray they get it right because the consequences of being wrong are horrendous. This is probably why Bettman has continually denied the NHL plans to use replacement players. He is after all a labour lawyer himself and he would know the potential consequences of a botched declaration of impasse.

As noted above there is another wrinkle that faces the NHL - immigration law. Because it operates in two countries and many of its players are neither Canadian nor American, immigration laws in Canada and the US will determine who can play as a replacement player.

Bear in mind as noted previously an impasse declaration and use of replacement is considered only a temporary measure and therefore the labour dispute continues. Under Canadian immigration law for a foreign player to play in Canada (Europeans and Americans) they must have a work permit issued from Canada Immigration unless they have been admitted an immigrant previously. Under US immigration law for a foreign player to play in US (Europeans and Canadians) they must have a work permit issued from Canada Immigration unless they have been admitted an alien resident previously.

Under the immigration laws of both countries, a work permit cannot be issued to a foreign national where there is a labour dispute in progress. So only Canadian citizens and permanent residents can play for Canadian based teams and only US citizens and alien residents can play for US based teams - no European players at all.

Ain't labour, sports and anti-trust law fun???? It certainly keeps a battery of lawyers employed by the NHL and NHLPA.

 

[GKJ]

You mean like many small market fans have been forced to do for the past 10 years?

Dont think too much of your opinion.

At least my opinion made sense. What are you trying to say? Do we have to start bringing out lists of teams who made money and teams who made the playoffs and teams who went to the finals in the past 10 years?

 

[BLONG7]

What the hell are you talking about?

SCABS...

 

[hockeytown9321]

Under the immigration laws of both countries, a work permit cannot be issued to a foreign national where there is a labour dispute in progress. So only Canadian citizens and permanent residents can play for Canadian based teams and only US citizens and alien residents can play for US based teams - no European players at all.

/QUOTE]

Thanks for the detailed explanation.

To me, the part I quoted should be enough for the NHL to not go the impasse road. Even if they get one and use replacements, the immigration issues would make it a disaster.

 

[hockeytown9321]

SCABS...

My mistake. Obviously you've thought this one out a great deal.

 

[RLC]

OK. Basic Sports Labour Law 101 or perhaps I should publish it as "Sports and Labour/Labor Law for Dummies".

An employer cannot simply use replacement players (or replacement workers for that matter). If you could no company would ever negotiate, they would simply restart each time and avoid negotiating with the union. the goal of labour law is collective bargaining to reach an agreement.

Also bear in mind the NHL is trans-border operation. In the US the applicable labour law is federal and under the auspices of the NLRB. In Canada the jurisdiction is provincial and subject to the labour codes of the home provinces of the Canadian NHL teams (BC, Alberta, Ontario and Quebec) and the respective provincial labour relations boards.

In the US to get to replacement workers, you must make sure there is in fact a bargaining impasse before you declare it, because if you are wrong, the financial liabilities can be horrendous. A declaration is only possible after complete deadlock and after making your final best offer to the union. The offer must be comprehensive (in other words a replacement CBA), if rejected by the union then you must implement that offer as the temporary CBA. Only then you are entitled to re-open and try to get replacements to run your business.

BASIC PRINCIPLE - a bargaining impasse and use of replacements is a TEMPORARY measure and the labour dispute continues. That has some very interesting immigration law implications in the US and Canada noted below.

The union has several options if the employer declares an impasse. The union can then strike and/or seek a ruling from the NLRB that the employer committed an unfair labour practise (e.g there was in fact no bargaining impasse). The NLRB upholds very few impasse declarations.

In 1994 MLB declared an impasse, imposed a CBA and opened with "Scab Ball" after lengthy face to face negotiations, significant movement by the MLB owners on a number of issues, use of a federal mediator and even an attempt by President Clinton to mediate. MLB lost at the NLRB and were ordered to play for two more years under the previous CBA.

An impasse declaration is not easy to get confirmed by the NLRB and if the owners lose they are on the hook for the salaries owing to the players during the time they operated under the voided declaration of impasse.

BTW in the 1994 labour dispute replacement players could not be used by the Toronto Blue Jays or Montreal Expos as Canadian provincial labour laws prohibited the use of replacement workers absolutely. Subsequently the law was changed in Ontario by the Harris government but it has been proposed by the current government to re-impose the ban on replacement workers.

In Canada there is no procedure for an impasse declaration. Currently both BC (Vancouver Canucks) and Quebec (Montreal Canadians) prohibit the use of replacement workers under their labour codes. In Quebec the Habs players have not formally certified themselves as labour union local so technically replacement players might be possible but a quick 5 minute vote as occurred with the Expos in 1994 would bring the replacement worker ban completely into effect. As noted the ban on replacement workers may be re-imposed in Ontario and that would cover the Leafs and Senators. That would leave Calgary and Edmonton but as noted there is no procedure for impasse declaration and there is no guarantee the Alberta Labour Board would allow replacement players.

Another option the NHLPA has is decertification. In the last disputes with the NBA and MLB, the player associations threatened decertification and the owners backed down. Decertification is often referred to a s nuclear deterrent because the players lose the protection of the union and is likely a last resort tactic but a very effective one if used properly.

The reason the owners fear decertification is that decertification would result in the loss of protection from anti-trust law in the US and competition law in Canada. Pro sports can operate in breach of anti-trust law only so long as they have a CBA to protect them and decertification ends that. In 1950 the US Supreme Court ruled that anti-trust law applied to pro sports (except baseball which had an exemption) in the case of Radovich v. NFL. If the owners breach anti-trust law which would include such things as an Entry Draft, reserve clause for players (i.e. players become free agents at the end of each contract without such a clause) or any other non-competitive practise then the NHL would be lioable for "treble (triple) damages" under US laws and the US courts are very quick to rule against breaches of anti-trat law.

In Canada we have similar law under the Competition Act, An Act to provide for the general regulation of trade and commerce in respect of conspiracies, trade practices and mergers affecting competition. Fines to be imposed in Canada have no upper limit and are at the discretion of the court. Canadian law has specific provisions that apply to professional sports IF there is no CBA:



In 1987 the NFL "broke" the union with replacement players but the players ultimately prevailed by decertifying and won free agency as one of the concessions. It also generated a couple of hundred anti-trust actions which but for one the owners finally settled in return for granting free agency to the players along with other concessions.

For a detailed review of the decertification process in that dispute see this material from the one leading sports and entertainment labour law experts, Paul Weiler (a Canadian by birth whose brother, Joe teaches labour and sports law at the University of BC law school and who was Chairman of the BC labour Relations Board in the past)who is a professor at Harvard law school. For everything you ever wanted to know about sports labour law, anti-trust law, etc but were afraid to ask see Professor Weiler's 380 page book, "Levelling the Playing Field" online at:
http://www.hup.harvard.edu/educators/pdf/weilex.pdf

For the actual NFL decertification information see pages 108-110.

For a recap of the 1994 hockey lockout see pages 111-112.

For anti-trust law and how it interrelates to pro sports see pages 150-169.

So if the NHL declares an impasse they better pray they get it right because the consequences of being wrong are horrendous. This is probably why Bettman has continually denied the NHL plans to use replacement players. He is after all a labour lawyer himself and he would know the potential consequences of a botched declaration of impasse.

As noted above there is another wrinkle that faces the NHL - immigration law. Because it operates in two countries and many of its players are neither Canadian nor American, immigration laws in Canada and the US will determine who can play as a replacement player.

Bear in mind as noted previously an impasse declaration and use of replacement is considered only a temporary measure and therefore the labour dispute continues. Under Canadian immigration law for a foreign player to play in Canada (Europeans and Americans) they must have a work permit issued from Canada Immigration unless they have been admitted an immigrant previously. Under US immigration law for a foreign player to play in US (Europeans and Canadians) they must have a work permit issued from Canada Immigration unless they have been admitted an alien resident previously.

Under the immigration laws of both countries, a work permit cannot be issued to a foreign national where there is a labour dispute in progress. So only Canadian citizens and permanent residents can play for Canadian based teams and only US citizens and alien residents can play for US based teams - no European players at all.

Ain't labour, sports and anti-trust law fun???? It certainly keeps a battery of lawyers employed by the NHL and NHLPA.

Are you telling me that the NHL is not allowed to fold, ending 100 years of NHl and the owners re-start as NAHL ( North American Hockey League ) ?
Yes with all logo's changing