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NHL’s CBA dispute enters legal swamp

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NNHL players and Donald Fehr

With a players’ vote likely to dissolve their union, the NHL is changing some of its tune about NHLPA boss Don Fehr. (Mary Altaffer/AP)

By Stu Hackel

And now things have changed. The fate of the season and perhaps the entire NHL could be decided by lawyers filing into courtrooms, not by negotiators in conference rooms,. And, because the existing case law on what will be argued is so uncertain, the outcome is anyone’s guess.

Somewhere in the past few months, I wrote something like, “This is no way to run a league unless you want to run it into the ground.” That has never been more true.

But let’s not allow this dire view to stop us. Instead, let’s wade into the legal swamp a bit and hope we don’t get too bogged down while trying to comprehend it.

As we noted on that ugly Friday of last week (that had already turned truly horrible with the shootings at the Sandy Hook Elementary School in Newtown CT), the NHLPA executive board decided unanimously on Thursday to have its members vote on whether to give the union’s executives the right to disclaim interest, the technical term for dissolving their union. They believe the owners’ unwillingness to compromise leaves no alternative but to take this path which, theoretically, can provide some leverage in this impasse. That vote is now underway and will conclude on Thursday. Should the players go in that direction, it will set in motion all sorts of possibilities and anyone who tells you they can predict the outcome is fooling themselves and trying to fool you.

If the players vote to give the execs the right to dissolve (Detroit’s Dan Cleary told Ansar Khan of the Michigan Booth Newspapers the motion should pass overwhelmingly) and if that’s the action the executive board takes, they could ask a court to declare the lockout illegal. Should the court do that, it exposes the NHL to anti-trust lawsuits — and the if the league is found guilty, it could mean serious financial problems for the owners because such a verdict carries a tripling of monetary damages. The owner of your favorite team would not be happy.

The threat of this outcome could force the owners back to the bargaining table well before any lawsuit gets that far. Or it could make them dig their heels in more, and if you listened to Deputy Commissioner Bill Daly on “Hockey This Morning” over Sirius XM NHL Network Radio (audio), you heard him say the league was very confident in its position. If that’s true, there may not be any negotiations for a while.

One outcome, at least according to the league, is that a decision to dissolve will guarantee the loss of the season. That’s not entirely certain, although negotiations would have to resume fairly soon and move pretty quickly to get an agreement in time to play even a shortened schedule of 48 games.

Just after the PA’s intentions became known on Friday, the NHL took preemptive action to defend its position in the event the union executive board does decide to dissolve — filing a class action suit and a complaint with the National Labor Relations Board. You can actually read the lawsuit here and it says that the court should not recognize any move by the PA to dissolve itself.

A good, easy-to-follow explanation of all these latest developments in question-and-answer form by Eric Macramalla on TSN.ca can be read here. If you want to skip some of his details (you shouldn’t, but in case you do), he asks, “Which Side Would Win In Court?” and answers, “There is a lot of uncertainty in this area. The law is sorted and complex and it’s too tough to say which side is favoured in court. The only certainty here is uncertainty.”

He also points out that, “The NBA did precisely the same thing (as the NHL is doing) in August 2011. The NBA filed its lawsuit in New York, asked the Court to declare the lockout legal, and requested that the Court declare all NBA player contracts void if the NBPA was dissolved by way of a disclaimer or decertification.”

If you’ve gotten this far and are pulling your hair out, here’s some comic relief from Larry Brooks of The New York Post, who has been saying for a while that he thought this would end up in court.

“Reading the NHL’s complaint is a hoot. Honestly, it is,” he wrote Sunday. “Here is the league that just over a week ago was doing everything in its power to keep Don Fehr out of the bargaining process, and is now going to court to ensure he continues to represent the players in the bargaining process. For weeks now, the NHL has sent its messengers to deliver the message the NHLPA is not truly united behind Fehr and union leadership; that the players, left to their own decision-making process, would rush to accept whatever the league at the time had on the table. Or, in another word, ‘Vote!’ Yet there in Paragraph 54 of the complaint is the NHL citing numerous examples of players articulating support for Fehr and the PA leadership which the league posits, ‘… do not suggest that the NHL players are unhappy with their Union representation [or] wish to oust current NHLPA leadership…’ Don Fehr. League can’t live with him, now the league can’t live without him.

“Paragraph 102 is a good one. For months the NHL has been telling anyone who would listen that up to 18 of its franchises lose money, with many of those franchises in need of life support. For months the league has been instructing us not to confuse revenue with profits. Fair enough. But then these are the league’s own words right there in Paragraph 102: ‘The system of common employment rules [the CBA] instituted in 2005 improved the financial stability of the entire NHL, including most of its clubs…’

“Most of its clubs? Really? Hmm.

“What to make of the thought process behind Paragraph 62? The combination of restrictions proposed by the NHL leading into and throughout the lockout is designed to limit the impact of free agency and funnel players toward teams they might not consider given a full plate of options. Yet there is the NHL in Paragraph 62 suggesting every player in the league become a free agent if the NHLPA were permitted to disclaim or decertify. ‘[Existing] contracts …[would be] void and unenforcable by law,’ in the league’s own words. Goodbye Columbus!”

It remains to be seen if a judge will find the NHL’s petition as humorous. Still, you can’t overlook the irony inherent in the latest maneuvers.

And you can’t overlook the fact that with every passing day this drags on, more people care less and less about it all.

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  • Published On Dec 17, 2012
  • 21 comments
    cakasabian
    cakasabian

    "For months the NHL has been telling anyone who would listen that up to 18 of its franchises lose money, with many of those franchises in need of life support".  Boy that speaks volumes about the owners.  Seems what the league needs are owners that know something about running a business, you know, not to overpay for assets, keep costs at a minimum, etc, and not have to depend on shutting operations down in hopes of getting a new CBA that favors them every 7 years.  That's what bothers me the most right now about the state of the NHL.   Whos to say this isn't going to happen again at it's first opporrtunity to do so? Maybe shutting the league down is the correct avenue at this point and starting back up with a group of owners and players who are interested in their customers more than themselves.  In the interim, the only negative I see are the people dependent on the sport for their living - but players have other places to play and for those in the support businesses I assume it's part-time work for them and can be replaced elsewhere.  And I'm sure Stu can easily move over to curling with barely a hiccup :)

    FrankJohnson
    FrankJohnson like.author.displayName 1 Like

    To all nhl Fans!

    Very simple;

    When these greedy men decide it's time to take our money again(which is obviously going to be 2013-14), DON'T GO!

    LET THEM PLAY IN EMPTY ARENAS FOR ANOTHER FULL YEAR.

    I was a die hard Rangers fan for 35 years and I just canceled my cable sports package. I highly suggest you ALL do that too.

    The ultimate joke will be if Bettman is still the comissioner after all this

    d3
    d3

    NHL?

    DusanRoller
    DusanRoller

    Let me think about the PA legal argument:

    Your honor, when we got locked out as a union we did not really exist. We kinda did exist, but we decided, six month later, to dissolve retroactively. So we did exist, but looking back now, in the light of our most current decision, we did not. If this is confusing to you, your honor, we are sorry, but this is the way it is. We traveled back in time and dissolved. The NHL should have known that we are going to change our minds and now they have to pay us all penalties and fines.

    Is this it?

    Stu Hackel
    Stu Hackel moderator like.author.displayName like.author.displayName like.author.displayName 3 Like

     @DusanRoller No, sorry, that's not it, and your exaggerated parody of it doesn't really do anything but uncover your own bias.

     

    First of all, the union has not yet dissolved. All they are doing is voting to authorize their executive committee to have the power to dissolve if they feel that his what they should do. So they are still a few steps away form that.

     

    But if you really want to know what the players will be arguing in court if they do dissolve, it is this: We have bargained in good faith for months through our union. The owners, however, did not bargain in good faith. We have made numerous and regular concessions through our representatives but to no avail. The other side did not respond in kind. As a result, we can no longer proceed on this track. It no longer works for us for the union to do our bidding. We now believe we have a better chance of making a deal without the union's representation. The law being what it is will more readily permit us to get an agreement with the owners if the union is no longer in the picture.

     

    That will be their argument and not the cartoon version you describe.

    StephenCurtis
    StephenCurtis

     @Stu Hackel  @DusanRoller I think your article and response show your bias. I get frustrated say alot of things. Usually in support of owners. I think both sides have been horrible in this though, The problem is i never find a sports reporter who ever sides with owners. Or even gives them a fair shake. 

    Owners aren't negotiating in good faith? Really/ I say players aren't. The owners wanted 43/57 to be split players wanted 57/43 and sure the players came down to 50/50 which was end game in my opinion. I think hrr and revenue sharing has to change. That said the nhl owners to greedy to share revenue better. Or redefine hrr.

    That said the owners told players we will give up all contract right fight except term limits and we want a 10 yr deal. Players said sure we will take u giving in on all other contract rights but the other 2 things u want in return no. We want deals to be 8 yrs not 5 with 7 for signing with club u r with. We want a 6 yr labor deal so we can do this all again in 6 yrs. instead of given fans a 10 yr deal and some peace after all both of us have done to them . So i think players are ones not barganing in good faith. 

    hdogg48
    hdogg48

    @Dustin Madlung @geeon1 @David @Dustin On the fan support issue. I remember my late father a WWII vet refusing to buy a foreign car, choosing to stay with GM. I myself as a Baby Boomer subscribed to that as well, then one day I bought a Honda Accord. The Devils losing money was never an issue when Dr.McMullen owned them. Ihe didn't care, he was a Jersey guy and he was going to give them a winner, and if he lost money He could write it off on his other lucrative assets. Now that Jeff Vanderbeek comes in with his soft money, it's a problem, Bottom line no revenue sharing then don't allow owners with soft money in soft markets.

    geeon1
    geeon1

     @hdogg48  @geeon1  @David  @Dustin Fact is these franchises are losing money consistently. That was the premise for the choices for contraction. As a Rangers fan I would HATE seeing the Islanders or the Devils gone, those games are fun to watch. The truth of things is neither side will allow contraction anyway. For Bettman it would show he was wrong (again?) about hockey being viable in any market and the PLAYERS would fight this even harder because it would mean loss of many jobs. The fans are the only ones bright enough to realize that it would improve the quality of hockey as lesser talents would not make it.

    hdogg48
    hdogg48

    @geeon1 @David Roman @Dustin Madlung Three out of the the four teams that you mentioned ie. The Devils, the Hurricanes, and the Lightning have won the Stanley Cup in the last 10 years. And to the poster that said what team would make money outside of Canada that went several years without making the playoffs...How about the Rangers and Flyers? Both teams went through dismal periods and still made a ton. Maybe that accounts for the poor fan support in Jersey. Because the people of North and Central Jersey  envy New York, and the people from South Jersey worship Philly. It helps too that the Rangers and Cablevision control th hockey cable rights in Central and North Jersey and Comcast and the Flyers control the rights in South Jersey. And after the league contracts, and dissolves the Devils, where do you propose they hold the ceremony to retire Marty Brodeur's number? Would you deny those of us that supported this franchise through thick and thin, and became one of the more storied franchises for the past 30 years. This when in our first year of existence we were called a "Mickey Mouse" franchise by perhaps the game's all time greatest player.

    geeon1
    geeon1

     @W.k. No i understood you perfectly, the players knew going in things were out of whack. Which is why they were so quick to say they wanted to renew this last deal.  The owners shot for the moon, knowing that 50-50 would be the end result. The contract lengths and all the stuff you discuss needed to be addressed.

    W.k.
    W.k.

     @geeon1 You misunderstood my question--in terms of contract length, free agency, arbitration, and revenue distribution, where is the league giving anything in comparison to the last CBA?  The league is looking for significant revenue give-back without offering anything in return.

    geeon1
    geeon1

     @W.k. Do you know what the league funds for each player? That is not on the table. insurances, medical staffing,food, travel etc. That eats up the revenues of the individual teams. The league gives, quite generously across the board.

    geeon1
    geeon1

     @Dustin Madlung That's the problem the big stations don't want Hockey aside from filler after Football season ends. The Owners and the players are both dug in deep. I see the owners making the biggest concessions from their original offers. The players keep trying to finagle a deal that keeps all the contracts whole.The players knew from day one that the split would be 50-50

    the league has offered the deal with a 10 year window the players want 6? They are afraid that the owners might actually make a buck for a few years. we the fans should be demanding a 10 year window before this foolishness begins again.  Say what you will the Owners have bent quite far.

    W.k.
    W.k. like.author.displayName 1 Like

    Negotiating involves give-and-take; if you look at the terms of the last CBA and what the league is proposing, where is the give on the league's part?

    geeon1
    geeon1

     @David Roman  @Dustin MadlungThese are the teams that should be contracted

    Panthers

    Coyotes

    Islanders

    then a choice here of the Devils(great team poor support), Lightening, Hurricanes, Blue jackets ( look it up they have lost money 7 straight years)

    From Forbes: "In the seven seasons the league has played since the previous lockout, six franchises – the New York Islanders, Nashville Predators, Florida Panthers, Phoenix Coyotes, St. Louis Blues and Columbus Blue Jackets – have suffered operating losses in every one of them. The Carolina Hurricanes lost money in all but one season, the San Jose Sharks in all but two."

    geeon1
    geeon1

     @Dustin Madlung You are part right here: However the PLAYERS will not allow the NHL to contract. It would mean loss of jobs(minor leagues-majors).  Bettman is not the primary nor secondary reason for the lock out. Bettman is merely the owners pawn doing what they tell him to do. Remember he was the one to offer the player-owners meeting. Which led us to thinking something could get done but Fehr and Bettman both botched it up. Contraction (which I am in favor of) will never fly: Bettman won't admit Hockey is a niche sport and the players will not let jobs go away.

    I have np with someone siding with the players or the owners, both sides have screwed this up royally.  I am owner sided. I will explain why: the owners not only pay the contracts but they also provide then arenas (or negotiated tax deals to fund them), they pay all travel expenses, equiptment expenses, food, insurance etc. Then they pay the staffed positions dwindling their entire nut to far below 30%. There is no super TV contract. While I agree 100% that the owners did this to themselves, don't forget it was to get fans into the seats that they offered some of these ridiculous contracts. They hoped for increased fan support to help pay the contracts but the NHL still suffers compared to other sports.

    David Roman
    David Roman

     @Dustin Madlung  @geeon1 Although Columbus has been losing money the last few years, you do not understand the whole story here.  The CBJ did not lose money the first 7 years they were in the league.  They averaged over 17,000 fans a game for each of those seasons.  The last four years the team has been losing money (and show me a franchise outside of Canada that would not be losing money after 1 playoff appearance in 11 years), but the new arena deal the CBJ has will make a huge difference for their bottom line.  Franklin County, which now owns Nationwide Arena, can make money and the CBJ gets out from under a very bad deal that should make it easy for the CBJ to stop the bleeding.

    geeon1
    geeon1

    Mr. Hackel you have been 100% with the players since day one which is fine. As for good faith negotiations. Sorry to say the owners have been negotiating while the players have basically stayed to their lines. They knew from day one they would need to go to 50-50, and now they are there. However it was more the Owners backtracking from their original offer of 43% of the HRR. If you look really closely at the tidbits garnered via leaks the Owners position has been the one to soften the most. The courts will notice this.

    Stu Hackel
    Stu Hackel moderator like.author.displayName like.author.displayName like.author.displayName 3 Like

     @StephenCurtis  @DusanRoller First of all, Stephen. you are misreading my response to DusanRoller. I am not taking the players' side here. What I'm doing is trying to make an accurate presentation of their position as opposed to DusanRoller who was mocking it and muddying the picture in doing so. It does no good for anyone when someone misrepresents a position just because they don't like that side. I don't care which side anyone takes, everyone can have their opinion, but no one should deliberately present a false picture of the facts.

     

    Now, it's possible the players' case will fail and the judge will rule against them, but my response to DusanRoller is what the players will be arguing in court.


    Secondly, I have trouble following your line of reasoning as to why you think it's the players who aren't bargaining in good faith. It's possible they are not, but -- as you point out -- the players were the ones who came down to 50-50 and they are the ones who are making a concession off what the last CBA gave them. Fifty seven percent was what they had last time and now they will settle for 50, so they are the ones making the concession here. On contract rights, they had no limit to contracts at all so agreeing to any limits is a concession for the players. The players feel they have been the side doing all the bending compared to what the previous deal was. Nothing the owners have offered is better for them than in the last CBA and I think they believe they should have some improvements in the new deal, considering the fact that their efforts allowed the owners to make record revenues and enjoy record high franchise values.

     

    So I don't think they believe they are negotiating in bad faith when they don't want to bend on free agency, which was granted after seven years and now the owners want it at eight. And the players want a shorter CBA because the average length of a career is only about five years and a 10 year CBA would mean for them two entire generations of players would have to live with a 10 year deal. They originally wanted five years. The owners said they wanted seven. So the players asked for six and the owners responded with 10. Really, now, who is demonstrating bad faith there?

     

    It's not a question of reporters siding with players rather than owners. In reading as much coverage of this as I do (and I read a great deal of it), it has seemed to me that many writers -- not all, but many -- went into this with no preconceptions, but as the events went on, they saw how the negotiations were playing out and have come to the conclusion that the owners kept clawing away at the players, refusing to negotiate and not compromising when they were. A few compromises on the owners' part would have had this settled by now but they have been the hardliners in all this. That's how this has largely played out and what you may be reading is many in the media who are just describing that dynamic and concluding one side has negotiated in better faith than the other.

    Cool
    Cool

    Customers are knocking at my door, begging me to give them a fair price for the products I have.  They are not giving me numbers I like so far, so I will contiue to keep the doors locked.  If they keep doing this, I think I am going to have to sue them for not supporting me and understanding I need to make money.  If you all could just hear that loud mouth lady and her sister that seem to be like a spokesperson for the other customers, a real lame brain.. but if we go to court I will be forced to ask the courts to make my customers go back to using her as a spokesperson.  Do I sound confused yet?

    JerWilcoxen
    JerWilcoxen

     @Cool Well, players aren't customers.  Fans watching games are customers.