TheGhostofJimKelly
02-17-2005, 08:46 AM
http://tsn.ca/nhl/feature.asp?fid=9941
With labour talks providing nothing close to a solution, there is always the possibility of the league declaring an impasse, right?
Well, it's not as easy as it may sound.
With NHL franchises based in the United States and in Canada, the impact of implementing a collective bargaining agreement would naturally be two-fold.
Under American labour law, the NHL - if they have 'negotiated in good faith' - could unilaterally impose new work rules (namely the league's last offer on the table) and sign replacement players for the 2005-06 season.
While declaring an impasse would almost certainly be legal under federal U.S. labour laws, the implementation could be a whole different story. In response, the union could file an unfair labour practice charge with the National Labour Relations Board (NLRB). NLRB staff would investigate whether the parties are truly at an impasse, and review whether the league has bargained in good faith.
Anyone familiar with the inner workings of public administration will tell you that it is a strenuous process that could take a lot of time and red tape to resolve. To make matters worse, the NHL and NHLPA could still be bound by law to continue bargaining while the board's investigation takes place.
In Canada, labour laws work under provincial jurisdiction and their respective authorities have varying standards and practices across the board. Most provinces have labour laws in place that do not recognize an employer's right to declare an impasse or hire replacement workers.
Replacement players would be possible for the Edmonton Oilers and Calgary Flames because the provincial laws in Alberta could work in favour of such a move. But other teams - Ottawa, Vancouver, Toronto and Montreal - could run into legal challenges from the NHL Players' Association.
Quebec and B.C. do not allow for replacement workers, which some experts believe could prevent the Montreal Canadiens and Vancouver Canucks from using replacement players. The teams could not play in, say, Hamilton and Seattle for a year, because they could easily be slapped with an unfair labour charge.
CBA On the other hand, NHL owners could argue that hockey players in Canada are not their employees, but 'independent contractors' who are not covered by the labour code. NHL players aren't covered under the province's labour code in Quebec, while the NHLPA isn't certified as a union in B.C.
Now let's just say that when all is said and done - hypothetically of course - an impasse gets pushed through and the new work rules can be put in place in both the U.S. and in Canada.
The first challenge for the league will be following pre-existing labour laws. In the U.S. and in Canada, labour laws do not allow businesses to use replacement workers from other countries. The league's six Canadian teams must use Canadian players, while American teams must use players from the U.S.
At the other end, the NHL Players' Association could potentially pull some good trump cards of its own - strike or decertification.
Under a strike scenario, the union simply won't accept the new work rules and walk out. They would gamble that fans wouldn't flock back into arenas to watch non-regulars dressed in NHL uniforms.
The other option is for NHLPA members voting to decertify the NHLPA as their representative body. That way, the new framework of the CBA would not be applicable to them. Simply put, you can't have new labour practices applying to members of a union if that union doesn't exist anymore.
This specific process will essentially fragment the union's former membership. Decertified players who think they can make better money under a new CBA could head back to work, while players who take a financial hit from the new CBA could sue the league under anti-trust laws. If 'Hockey Player X' made $9 million US under the old deal, and only $6 million US because of restrictions - whether it be a salary cap, luxury tax, or re-vamped salary arbitration - under a new deal, he could seek damages for as much as three times the difference.
The other impact of decertification is its effect on the NHL as a product. No one knows how many players would return to such a 'new' NHL, and if most rosters are filled with replacement players, would fans be willing to watch a 'lesser quality' of hockey?
With everything taken into consideration, declaring an impasse would only show us more of that massive iceberg in the already frosty relations between the NHL and NHL Players' Association.
With labour talks providing nothing close to a solution, there is always the possibility of the league declaring an impasse, right?
Well, it's not as easy as it may sound.
With NHL franchises based in the United States and in Canada, the impact of implementing a collective bargaining agreement would naturally be two-fold.
Under American labour law, the NHL - if they have 'negotiated in good faith' - could unilaterally impose new work rules (namely the league's last offer on the table) and sign replacement players for the 2005-06 season.
While declaring an impasse would almost certainly be legal under federal U.S. labour laws, the implementation could be a whole different story. In response, the union could file an unfair labour practice charge with the National Labour Relations Board (NLRB). NLRB staff would investigate whether the parties are truly at an impasse, and review whether the league has bargained in good faith.
Anyone familiar with the inner workings of public administration will tell you that it is a strenuous process that could take a lot of time and red tape to resolve. To make matters worse, the NHL and NHLPA could still be bound by law to continue bargaining while the board's investigation takes place.
In Canada, labour laws work under provincial jurisdiction and their respective authorities have varying standards and practices across the board. Most provinces have labour laws in place that do not recognize an employer's right to declare an impasse or hire replacement workers.
Replacement players would be possible for the Edmonton Oilers and Calgary Flames because the provincial laws in Alberta could work in favour of such a move. But other teams - Ottawa, Vancouver, Toronto and Montreal - could run into legal challenges from the NHL Players' Association.
Quebec and B.C. do not allow for replacement workers, which some experts believe could prevent the Montreal Canadiens and Vancouver Canucks from using replacement players. The teams could not play in, say, Hamilton and Seattle for a year, because they could easily be slapped with an unfair labour charge.
CBA On the other hand, NHL owners could argue that hockey players in Canada are not their employees, but 'independent contractors' who are not covered by the labour code. NHL players aren't covered under the province's labour code in Quebec, while the NHLPA isn't certified as a union in B.C.
Now let's just say that when all is said and done - hypothetically of course - an impasse gets pushed through and the new work rules can be put in place in both the U.S. and in Canada.
The first challenge for the league will be following pre-existing labour laws. In the U.S. and in Canada, labour laws do not allow businesses to use replacement workers from other countries. The league's six Canadian teams must use Canadian players, while American teams must use players from the U.S.
At the other end, the NHL Players' Association could potentially pull some good trump cards of its own - strike or decertification.
Under a strike scenario, the union simply won't accept the new work rules and walk out. They would gamble that fans wouldn't flock back into arenas to watch non-regulars dressed in NHL uniforms.
The other option is for NHLPA members voting to decertify the NHLPA as their representative body. That way, the new framework of the CBA would not be applicable to them. Simply put, you can't have new labour practices applying to members of a union if that union doesn't exist anymore.
This specific process will essentially fragment the union's former membership. Decertified players who think they can make better money under a new CBA could head back to work, while players who take a financial hit from the new CBA could sue the league under anti-trust laws. If 'Hockey Player X' made $9 million US under the old deal, and only $6 million US because of restrictions - whether it be a salary cap, luxury tax, or re-vamped salary arbitration - under a new deal, he could seek damages for as much as three times the difference.
The other impact of decertification is its effect on the NHL as a product. No one knows how many players would return to such a 'new' NHL, and if most rosters are filled with replacement players, would fans be willing to watch a 'lesser quality' of hockey?
With everything taken into consideration, declaring an impasse would only show us more of that massive iceberg in the already frosty relations between the NHL and NHL Players' Association.