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09-25-2003, 08:54 PM
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Originally Posted by Tom_Benjamin
I'm confused. What CBA would be in force?

Are you suggesting the league could negotiate a CBA without a salary cap - let's say they extend the current agreement for 10 years - and CBA in place, make these changes?

They then merge all the teams, and impose conditions that affect labour without going back to the negotiating table? And the NHLPA would have no recourse?

I obviously don't hang around the computer enough, because everytime I have a thought for a question for a thread, somebody not only beats me to it, but then a whole bunch of great thoughts get posted before I've even sat down. I have read a bit about the MLS single entity structure and resulting court cases, and I have often wondered whether the conditions they created with the initial formation of their league and corporate structure could be duplicated by established sports league that would have to dramatically re-organize their structures in order to emulate the single entity formation.

My first thought is that while the proposition is complicated, it is ultimately do-able, in the sense that any differences in the value of the contributing franchises could be re-cognized at the outset of the formation of the new league structure by giving a greater amount of shares to the higher value franchises. I also occurs to me, however, that if more shares were issued to higher value franchise owners initially, there would have to be some kind of differential voting structure that would ensure that after the initial capitalization, decisions in the boardroom would be made on a one team one vote basis, rather than in proportion to share ownership.

In response to your question about what CBA would be in force, my understanding is that the motivation of setting up a single entity is to remove the ability of the employees to assert colusion and/or restraint of trade amongst the teams. I understand the theory to be that if you as a player are dealing with the whole league as a single corporate entity, you have to accept the terms of employment, which may include some terms that would be judged anti-competitive restraints under a normal sports league structure. A player considering employment is free to seek employment elsewhere if he does not accept the terms of employment. In this context, then, a collective bargaining arrangement is not a part of the package at all. A single entity league is effectively a strategy to do an end run around the need to establish terms of employment in a give and take bargaining processes where restrictive labour practices can only be imposed through the consent of the counterpart union.

I understand that one of the main issues of contention in the MLS cases (I believe the case was ultimately heard by both the circuit court and the US supreme court, in addition to the original case) was whether the choice facing players to effectively "accept the terms of employment or don't" could still be construed to be anti-competitive because the MLS effectively had monopoly powers for elite level soccer in the U.S. The courts decided that the MLS did not have such power, citing in particular the existence of other leagues throughout the world where the players could offer their wares. However, since the NHL is the most important league in the world, it seems to me that the potential that a court would make a finding that the NHL is effectively in a monopoly position would be the main impediment to the NHL emulating the MLS structure. (On the other hand, all this noise about the potential for a rival league being formed to give leverage to the players in CBA negotiations arguably diminishes the ability of players to claim that the NHL is a monopoly. If the players have the means to set up a rival league, how can the NHL be a monopoly. The players control the "means of production", after all).


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