The Strachan Guide to replacement Players

[Wetcoaster]

Here are two recent articles on the use of replacement players by everyone's favourite hockey columnist and evil doppleganger to Stan Fischler.

http://slam.canoe.ca/Slam/Columnists/Strachan/2005/01/14/898401.html
http://slam.canoe.ca/Slam/Hockey/NHL/2005/01/12/895997.html

While he is wrong on the law in several areas and his grasp of the facts leaves something to be desired, he is correct in his conclusion that it will be virtually impossible for the NHL to declare an impasse that would stand up before the NLRB, impose a CBA and use replacement players.

Click to read more...

 

[mudcrutch79]

Because most people are far too kind, considerate and honest to be lawyers, it follows that most people don't understand the underpinnings of the sports business.

He forgot to mention that you also can't be dumb as a sack of rocks, which, after reading the rest of the article, I would say eliminates him from the legal community. Funny, the legal profession is governed by a code of ethics. I don't know what governs journalists, but if any lawyer got things wrong as consistently as bozos of Strachan's ilk do, he'd be in front of a disciplinary committee.

I guess the Sun gets what it pays for.

 

[Sanderson]

Well, he is off quite a bit.
First, to bargain in good faith you don't need to budge off your stance at all. As long as you negotiate, with the NHL did by offering different CBAs multiple times.

Second, both parties already agreed on a CBA that included drafting, so the NHLPA would have a hard time to explain how it got in the old CBA, if it wasn't agreed upon by both parties.

Not to forget, the NLRB has changed a lot since Bush came to power, it's not the same as before.
There is no reason to suspect any of the given points would stop the declaration of an impasse.

 

[mudcrutch79]

The NLRB also is going to ask the NHL to provide legal precedents to show why it should be able to, in essence, break its union.

Of course, there are no such precedents. No sports league has ever been granted impasse status. The NLRB considers impasses between companies and unions that can't come to terms. But the NHL isn't a company in the sense that Ford or GM are companies.

This bit right here is just brilliant. Why am I busting my ass trying to puzzle out the reasoning underlying judicial decisions? I had no idea that I could just write on my exams that there are no precedents, because this fact scenario has never before occurred. Here I am, thinking that the NHL would look at the principles which have been identified in situations where impasses have been declared, and all that really happens is the other side says "This has never happened before." and that's the ballgame.

For the love of God, is there not a labour lawyer in the US somewhere who will publish a lengthy article on how this would all go down, as opposed to the ramblings of some comb-over wearing *****?

 

[Hockey_Nut99]

Does anyone know how the NFL went about using their replacement players?

 

[Lanny MacDonald*]

When the best you got working for you is Al Strachan you know you're in trouble. Uncle Al ain't been the same since Brian Burke publicly humilated him on HNIC. He's gotten to the point where you feel sorry for him. He's like a car wreck. You know you should turn away, but you keep watching him destroy himself with each sentence he writes.

Looks good Wetcoaster. Keep pinning these up in the union meetings. They're sure to build confidence in your group of GED scholars!

 

[Morbo]

Strachan is the stupidest guy in Canadian sports media.

 

[Wetcoaster]

When the best you got working for you is Al Strachan you know you're in trouble. Uncle Al ain't been the same since Brian Burke publicly humilated him on HNIC. He's gotten to the point where you feel sorry for him. He's like a car wreck. You know you should turn away, but you keep watching him destroy himself with each sentence he writes.

Same as the pro-owners rely upon Stan Fischler.

 

[DuklaNation]

As was stated earlier, a republican government makes a huge difference in whether an impasse would be declared.

Don't even compare it to baseball either. US government would likely side with the rich owners. As is typical for republicans.

 

[ScottyBowman]

Hockey needs more Al Strachan personalities. A lot of the media are pretty dull unlike basketball where they have all the personalities.

 

[Lanny MacDonald*]

Same as the pro-owners rely upon Stan Fischler.

That's funny because I think Fischler is a joke too. Give me Eric Duhatschek or John Davidson any day of the week and twice on game days. These two are the only guys to listen to IMO.

 

[Kickabrat]

Strachan is an idiot. He should at least research the stuff he writes about.

Here goes:

"First of all, the NLRB wouldn't want to hear the case. It made that point crystal clear when Major League Baseball tried to go down this path."

WRONG. the baseball strike of 1994 was terminated when the National Labor Relations Board (NLRB) obtained a Section 10(j) injunctive relief. So it will get involved if it has to.

STRIKE ONE: "Have you negotiated in good faith?" would be the first question.The NHL would have to answer that it has, but the NHL Players' Association, which presumably would oppose the NHL's request, would say, "No you haven't. To negotiate, you have to budge off your opening stance and you haven't done that. Your opening stance was a hard cap and you never moved off it."

WRONG: NLRB v. Herman Sausage 1960 (p. 394) "It is not bad faith bargaining to absolutely hold fast to a belief with which you entered negotiations". One among many other decisions that uphold this argument.

STRIKE TWO: "How many of these affected employees have you hired in the past five years?" the NLRB will ask. "Hire? We didn't hire any of them. Our 30 teams hired them after drafting them." "Drafting them? That's against the law under the Sherman Anti-trust Act, and for Canadian teams, it contravenes the Competition Act. At that point the NHL will argue that the Sherman Act can be circumvented if both parties agree. But you can bet your boots the NHLPA would withhold its agreement."

WRONG: Brown v. Pro Football Servicesm 50 F.3d 1041, 1048 (D.C. Cir. 1995), cert. granted, No. 95-388, holding that the policies of labor law outweigh antitrust law where a collective bargaining process is involved). i.e. if they are in negotiations then labor laws > anti trust laws.

STRIKE THREE: "Furthermore, if the NHL were somehow to get the right to use replacements, it would want each team to be able to retain the rights to its players. It wouldn't want them waltzing off as total free agents upon the terminations of each contract. Again, that's illegal if it is done unilaterally. The NLRB isn't going to allow the NHL to implement a system that is illegal."

WRONG: What a moron. If the NLRB rules that the the NHL can impose its "CBA" then the CBA will have language to deal with rules about contracts, salaries, etc. etc. Since the imposed 'CBA" will now be the legal work rules, how can it be illegal. The NHL will not have acted unilaterally, it will have acted with the consent of the NLRB.

STRIKE FOUR: The NLRB also is going to ask the NHL to provide legal precedents to show why it should be able to, in essence, break its union. Of course, there are no such precedents. No sports league has ever been granted impasse status. The NLRB considers impasses between companies and unions that can't come to terms. But the NHL isn't a company in the sense that Ford or GM are companies.It's an umbrella body that, by virtue of bargained concessions, takes away a number of rights of those who perform under its auspices. It restricts their freedom of movement, imposes discipline upon them, limits their salaries and demands they work under conditions which don't even come close to meeting the required safety standards.

WRONG: see mudcrutch79 post. Also from the previous CBA preamble: ..... ("NHL" or "League"), which is recognized as the sole and exclusive bargaining representative of the present and future Clubs of the NHL, and the National Hockey League Players' Association ("NHLPA" or "Association"), which is recognized as the sole and exclusive bargaining representative of present and future players in the NHL. ....


Does this mean the NHL has a cakewalk if it tries to declare an impasse. No. It is frought with risks. No one knows how the NLRB would rule, Canadian jurisdiction would be another kettle of fish altogether, if the NLRB ever ruled that the NHL or the NHLPA for that matter bargained in bad faith, the penalties could be extreme (eg awarding of backpay). The NHL better have all its ducks in a row if it goes down this route, but Strachan's article is just plain wrong.

 

[Pepper]

It's funny, everytime I see an Al Strachan article I keep thinking "nobody can be this stupid and this has to be the dumbest piece of hockey journalism I've ever seen" and I'm proven wrong by yet another Strachan article which pushes the boundaries of idiocy & ignorance even further.

I'd love to see Strachan vs. Burke tv-match, topic being the CBA conflict.

Can you say "must see TV"?

 

[LGSens]

take trashcan for what he is- a voice box for the pa. a lot of his "information" comes directly from his landlord- hockey agent don meehan.

 

[HF2002]

Wow. He's just getting worse and worse. He doesn't even bother to offer any counter argument to his points followed by a rebuttal of the counter argument. At least that way he'd be doing a better job trying to get people to believe a word he says. If he can't make the jump from his usual fiction when the NHL is in full swing he's hopeless. Shame on his editor.

My favourite line he uses is "[size=+0]but once again, let us stretch belief..." when he refers to anything that can be viewed as a positive for the NHL.

I'd like to hear his reasons as to why the NLRB wouldn't want to hear the case? That they didn't want to do it with baseball 10 years ago has no bearing on the NHL in 2005. A lot has changed in 10 years as it relates to this issue, most notably the American government. And with baseball, football and basketball having their own labour issues presenting themselves in the not too distant future, this would be an opportunity to establish some precedents that will affect the more affluential and powerful entities of baseball, basketball and the biggest one of all, football. Not to mention some experience.

It's amazing to me that this idea of drafting players is illegal. I'll take his word for it with respect to the letter of the law with the Sherman Anit-trust Act (USA) and the Competition Act (Canada). If this is true, why has it never been used to challenge the various leagues before? Why didn't Lindros try to get out of going to the Nordiques this way? Steve Francis to Vancouver? Clarett to the NFL? Maybe it has been argued before, but if that were the case, it's news to me if they won their challenge. If anyone has any detail in this area, honestly, I'd be interested to hear it.

It's pretty convenient for this article (the first one) that the NLRB seemed to ask every questions in a way that the answer always seemed to side with the players.
[/size]

 

[Epsilon]

As was stated earlier, a republican government makes a huge difference in whether an impasse would be declared.

Don't even compare it to baseball either. US government would likely side with the rich owners. As is typical for republicans.

Here's the thing though: everyone assumes that because the NLRB is more Republican now it will be more anti-labour and pro-management. But in the case of professional sports, the "labour" is much different than anywhere else. Many of these workers are millionaires, some many times over, and as such they benefit greatly from Bush's tax cuts and so on; one might say they make up a chunk of what Bush considers his "base". Now it's true that not every player in the NHL can vote in the USA, but there are still more votes there than what the owners provide. Although potentially not as much soft money.

 

[Crosbyfan]

WRONG: What a moron. If the NLRB rules that the the NHL can impose its "CBA" then the CBA will have language to deal with rules about contracts, salaries, etc. etc. Since the imposed 'CBA" will now be the legal work rules, how can it be illegal. The NHL will not have acted unilaterally, it will have acted with the consent of the NLRB.

.

Could the NLRB possibly do that?...impose a CBA with indentured status on the employees after their individual contracts have expired? (I have no legal training whatsoever but this doesn't sound right if I have understood you correctly)

 

[Wetcoaster]

Wow. He's just getting worse and worse. He doesn't even bother to offer any counter argument to his points followed by a rebuttal of the counter argument. At least that way he'd be doing a better job trying to get people to believe a word he says. If he can't make the jump from his usual fiction when the NHL is in full swing he's hopeless. Shame on his editor.

My favourite line he uses is "[size=+0]but once again, let us stretch belief..." when he refers to anything that can be viewed as a positive for the NHL.

I'd like to hear his reasons as to why the NLRB wouldn't want to hear the case? That they didn't want to do it with baseball 10 years ago has no bearing on the NHL in 2005. A lot has changed in 10 years as it relates to this issue, most notably the American government. And with baseball, football and basketball having their own labour issues presenting themselves in the not too distant future, this would be an opportunity to establish some precedents that will affect the more affluential and powerful entities of baseball, basketball and the biggest one of all, football. Not to mention some experience.

It's amazing to me that this idea of drafting players is illegal. I'll take his word for it with respect to the letter of the law with the Sherman Anit-trust Act (USA) and the Competition Act (Canada). If this is true, why has it never been used to challenge the various leagues before? Why didn't Lindros try to get out of going to the Nordiques this way? Steve Francis to Vancouver? Clarett to the NFL? Maybe it has been argued before, but if that were the case, it's news to me if they won their challenge. If anyone has any detail in this area, honestly, I'd be interested to hear it.

It's pretty convenient for this article (the first one) that the NLRB seemed to ask every questions in a way that the answer always seemed to side with the players.
[/size]

Without a CBA in place an amateur draft and what is popularly referred to as "reserve clauses" would be illegal in the US and Canada. A CBA lets a pro sports league operate without running afoul of anti-trust laws for the most part.

It has been challenged in the past in baseball in the famous Curt Flood case and various other cases. Football was forced to open it s draft to underclassmen as a result of threatened court actions.

 

[leaflover]

For the love of God, is there not a labour lawyer in the US somewhere who will publish a lengthy article on how this would all go down, as opposed to the ramblings of some comb-over wearing *****?

There are scads available and for a paltry couple hundred an hour they'll be more than happy to oblige.

 

[HF2002]

Without a CBA in place an amateur draft and what is popularly referred to as "reserve clauses" would be illegal in the US and Canada. A CBA lets a pro sports league operate without running afoul of anti-trust laws for the most part.

It has been challenged in the past in baseball in the famous Curt Flood case and various other cases. Football was forced to open it s draft to underclassmen as a result of threatened court actions.

Rats, I was hoping that Strachan was hanging out in his usual watering hole on Mars.

With this being the case, the NHL isn't going to hold a draft until thereis a new agreement, so what is Strachan talking about? Why would it come up with NLRB?

 

[Kickabrat]

Could the NLRB possibly do that?...impose a CBA with indentured status on the employees after their individual contracts have expired? (I have no legal training whatsoever but this doesn't sound right if I have understood you correctly)

The way I think it would most likely work would be for the NLRB to decide if they will hear arguments about why or why not an impasse exists. If they do, then they would rule if an impasse exists (how they rule is anybody's guess). They could order them back to negotiate some more, they can do all sorts of things. Assuming they find for the NHL (which is not a given, republicans or not), they would ask for the NHL's final offer then they could accept it, reject it, etc. If they accept it, those rules would then be in effect, presto an imposed CBA on the players. One option would be for the NHLPA to go on strike.

IMO, it never gets there. The NHL and NHLPA both have way too much too lose. This is very risky business that the NHL would be undertaking if they went this route. The NLRB could rule either way and in either case one of the NHL or the NHLPA come out big losers, which is not in either party's best interests. Plus it does not address the Canadian club's situation (not that Bettman could care less)

 

[Tom_Benjamin]

For the love of God, is there not a labour lawyer in the US somewhere who will publish a lengthy article on how this would all go down, as opposed to the ramblings of some comb-over wearing *****?

My guess is no. I think all parties - including labour lawyers - are guessing about a point that only matters if the NHL decides to go the impasse, implementation and replacement player route. There are no clear precedents except on the issue of player access to anti-trust law. (The union has to decertify the NHLPA as a bargaining agent. Even that is fraught with risk for the players, although probably not as risky as impasse is for the owners. Even with access to anti-trust law, players are not certain to win every case they advance.)

If there is one piece of the puzzle that makes me think a favourable to the owners impasse ruling is unlikely it is that MLB decided at the last minute not to go through with a case that was almost exactly the same as the one that the NHL has today. MLB did not like the case they had to present before the NLRB or they would have proceeded.

The risk was too great for baseball then and it is too great for hockey today.

Tom

 

[Kickabrat]

[size=+0]It's amazing to me that this idea of drafting players is illegal. I'll take his word for it with respect to the letter of the law with the Sherman Anit-trust Act (USA) and the Competition Act (Canada). If this is true, why has it never been used to challenge the various leagues before? Why didn't Lindros try to get out of going to the Nordiques this way? Steve Francis to Vancouver? Clarett to the NFL? Maybe it has been argued before, but if that were the case, it's news to me if they won their challenge. If anyone has any detail in this area, honestly, I'd be interested to hear it.[/size]

Read my original post. Strachan is wrong. His whole article is wrong. There are plenty of legal precedents in the U.S. that labor law supercedes Anti Trust law. As long as there is a CBA or negotiations are taking place. This is one of the problems with declaring an impasse, the NLRB could agree on the impasse but reject the NHL's position, and keep the old CBA, or cancel it and then have no CBA in place which means all hell breaks loose. That is why the NHL will have make sure its case is rock solid if it goes this route, which is almost impossible.

 

[Tom_Benjamin]

The way I think it would most likely work would be for the NLRB to decide if they will hear arguments about why or why not an impasse exists. If they do, then they would rule if an impasse exists (how they rule is anybody's guess).

Perhaps, but I don't think so. I think the NHL will have to decide whether they think an impasse exists first. It only matters if they are going to attempt implementation. When they do, the NHLPA files a suit alleging unfair bargaining. That's what is decided. I don't believe there is a mechanism to get a ruling upfront.

Another fact that implies that impasse and implementation is not the NHL strategy is that there is nothing as of yet that could be implemented. The NHL will definitely have to table a complete CBA from article one to article 100.

I don't think the NHL wants to do that. There are elements they want - early free agency, for example -that fly in the face of their stated objectives. If the players cave, they can pretend they gave up free agency at age 27 because they had to give up something to get what they needed. If they table that directly in a CBA they intend to implement, the fiction they are trying to help small markets can't be sustained.

I think the owners plan to keep on doing exactly what they have done so far; nothing.

Tom

 

[Wetcoaster]

Perhaps, but I don't think so. I think the NHL will have to decide whether they think an impasse exists first. It only matters if they are going to attempt implementation. When they do, the NHLPA files a suit alleging unfair bargaining. That's what is decided. I don't believe there is a mechanism to get a ruling upfront.

Another fact that implies that impasse and implementation is not the NHL strategy is that there is nothing as of yet that could be implemented. The NHL will definitely have to table a complete CBA from article one to article 100.

I don't think the NHL wants to do that. There are elements they want - early free agency, for example -that fly in the face of their stated objectives. If the players cave, they can pretend they gave up free agency at age 27 because they had to give up something to get what they needed. If they table that directly in a CBA they intend to implement, the fiction they are trying to help small markets can't be sustained.

I think the owners plan to keep on doing exactly what they have done so far; nothing.

Tom

Hi Tom

Are you the guy running the excellent Tom Benjamin's NHL Web Log?

If so keep up the good work. I really enjoyed the exchange between yourself and "Charles Tupper" on the impasse issue.
http://www.canuckscorner.com/weblog/nhllog/archives/2004/09/give_em_what_fo.html

BTW you are wrong on one point - your site is the best blog.