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Brooks - Union: We won't decertify [yet]

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11-18-2012, 07:55 PM
  #26
Epsilon
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Originally Posted by billybudd View Post
Judges don't generally like to try to overrule a court whose opinion supersedes them. Doing so can greatly damage your career and is usually fruitless anyway, since your new decision just goes right back to the same appellate court, which overturns it.

The only reason to even think about decertifying, from the union's perspective, is because Canada's court system is not subject to US anti-trust rulings.

Then, the antitrust litigation will take years and years to sort out. In the interim, the NHLPA's members make no money whatsoever, apart from what they can get in Germany or Russia.

It would be like killing the other guy by cutting your own leg off and battering him into unconsciousness with it before you bleed out.

And even then, there's no guarantee Congress wouldn't change the laws in the interim to grant sports leagues antitrust exceptions, which they probably would.
And you make this assumption based on what exactly? Your own wishful thinking?

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11-18-2012, 08:00 PM
  #27
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Originally Posted by Blackhawkswincup View Post
Which would lead to NHL pushing for non-guaranteed contracts
Agreed. If the union decertified and went after the cap, the gloves are off on both sides.

Although if that were to ever happen, it might be the death-knell of the league as we know it.

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11-18-2012, 08:02 PM
  #28
Erik Estrada
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Originally Posted by Epsilon View Post
And you make this assumption based on what exactly? Your own wishful thinking?
I don't think there's any chance of that happening. Baseball got it in the 1920s and the trend has been for the Courts and Congress to limit the exception more and more as time went on. Hockey would have had a better chance to get a congressional anti-trust exemption in the 1950s than today.

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11-18-2012, 08:09 PM
  #29
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NHLPA decertification is meaningless after what happened with the NFL. It'd almost guarantee this season's death, but it wouldn't halt the lockout or make any real difference to the end contract. Well, it would ensure that the NHLPA would get a hell of a lot less in their eventual deal than they would if they signed right now. But that's about it.

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11-18-2012, 08:21 PM
  #30
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If they decertify and get rid if the cap, would it be legal for the NHL to put limits on the qualifications to win the Stanley Cup? You can spend as much as you like, but if you spend over XX dollars and win, you'll be the League Champions, but not the Stanley Cup champions. Some owners might spend over that to win, others would want to be etched into the Cup's history.

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11-18-2012, 08:23 PM
  #31
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Originally Posted by lockstock View Post
If they decertify and get rid if the cap, would it be legal for the NHL to put limits on the qualifications to win the Stanley Cup? You can spend as much as you like, but if you spend over XX dollars and win, you'll be the League Champions, but not the Stanley Cup champions. Some owners might spend over that to win, others would want to be etched into the Cup's history.
This is seriously the weirdest idea I've ever heard of

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11-18-2012, 08:24 PM
  #32
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Originally Posted by Erik Estrada View Post
I've read other articles on this matter. This NBC article refers to blocking the lockout on anti-trust grounds after decertification (a procedural matter). The same decision said the anti-trust lawsuit could still be pursued on the merits. This particular article does not talk about that. There's lots of material on that point elsewhere on the net.
If you can find some of the material, that would be great.


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Originally Posted by BonkTastic View Post
Agreed. If the union decertified and went after the cap, the gloves are off on both sides.

Although if that were to ever happen, it might be the death-knell of the league as we know it.
There would be no cap if the union disappeared. The teams could not together discuss nor impose any price controls (salary restraints).

Quote:
Originally Posted by DeathToAllButMetal View Post
NHLPA decertification is meaningless after what happened with the NFL. It'd almost guarantee this season's death, but it wouldn't halt the lockout or make any real difference to the end contract. Well, it would ensure that the NHLPA would get a hell of a lot less in their eventual deal than they would if they signed right now. But that's about it.
See Erik's post above. As mentioned, it's a procedural issue, not one that prevents the individuals from pursuing an anti-trust position.


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Originally Posted by HockeyCrazed101 View Post
If the union decertifies, what happens to all of their contracts? Their contracts were signed under a CBA and were subject to that CBA. If they decertify, doesn't that void their contracts should the league lift the lockout while they are disbanded?
The existing contracts would remain intact. If the contracts all disappeared, there would be no grounds for suing on the grounds of being locked out.

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11-18-2012, 08:32 PM
  #33
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Question:

If the Union does decertify couldn't the league open it's doors and play with a cap ceiling and floor and other business side objects of the CBA since it would be considered business management handed down by the NHL? Like how McDonald's tells its' stores what prices to charge?

Granted the draft would probably be gone along with individual contract caps(max term/$$$ limits) but so would the guaranteed status of contracts unless a player negotiates for it.

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11-18-2012, 08:40 PM
  #34
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Originally Posted by chasespace View Post
Question:

If the Union does decertify couldn't the league open it's doors and play with a cap ceiling and floor and other business side objects of the CBA since it would be considered business management handed down by the NHL? Like how McDonald's tells its' stores what prices to charge?

Granted the draft would probably be gone along with individual contract caps(max term/$$$ limits) but so would the guaranteed status of contracts unless a player negotiates for it.
No, it would be a serious anti-trust violation. I don't the League would ever consider that idea.

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11-18-2012, 08:42 PM
  #35
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This is seriously the weirdest idea I've ever heard of
Call it the "Spirit of the Game" clause. Hopefully, it'd keep all of the deep pocket teams from spending like the Yankees to have one dream team with all the best players. For the good of the league and fair competition, it's a way to keep ridiculous contracts under control without having a formal salary cap.

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11-18-2012, 08:49 PM
  #36
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Quote:
Originally Posted by chasespace View Post
Question:

If the Union does decertify couldn't the league open it's doors and play with a cap ceiling and floor and other business side objects of the CBA since it would be considered business management handed down by the NHL? Like how McDonald's tells its' stores what prices to charge?
Not quite the same thing chasespace.

It is illegal for competitors to come together and fix the marketplace. Individual McDonalds franchises are not considered competitors. Now if McDonalds, Burger King, Wendy's and all other fast-food chains came together and agreed to set minimum prices for comparable items, then this would be grounds for antitrust litigation.

The NHL does not have a direct competitor in United States and Canada. But so long as the restrictions are collectively bargained by the League and it's Union, the restrictions may exist without grounds for antitrust violation. If the Union decertifies, any restrictions imposed by the league are no longer protected under the umbrella of a CBA and become exposed to antitrust law.

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11-18-2012, 09:08 PM
  #37
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Originally Posted by Fugu View Post
If you can find some of the material, that would be great.




.
1-Snippet:

http://profootballtalk.nbcsports.com...ng-the-hammer/

"The league may continue to lock out the players, and the players may continue to pursue a $12 billion verdict for violation of the antitrust laws."

2-This text was discussed briefly in an older thread. Long but comprehensive. (80 pages)


http://lawreview.law.ucdavis.edu/iss...-4_Feldman.pdf


"The Eighth Circuit eventually issued a full stay pending resolution
of the appeal of the preliminary injunction in Brady. On appeal, the
panel reversed the district court’s decision and held that the Norris-
LaGuardia Act deprived the federal courts of jurisdiction to enjoin
lockouts.172 The panel remanded the case back to the district court
without addressing the nonstatutory labor exemption (or primary
jurisdiction) issues
.173 On July 25, 2011, the parties settled the case.174
The players eventually re-formed the NFLPA as a union and reached a
new collective bargaining agreement with the owners on August 4,
2011.175"

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11-18-2012, 09:17 PM
  #38
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If the union were to decertify, the first thing they would likely be after is damages for the nhl ruining many ufa contracts and careers by locking the players out. If the players were to be successful in that, damages would be triple their contracts.

Apparently the nfl players lost an attempt at not full fledged decertification, and in part the reasoning being the Norris laguardia act, with equal dissenting opinions too i believe.

What would be interesting to learn from legal types is how an act from the depression, said to be created in order to prevent judges from ending peaceful strikes and picket lines and preventing employers from making employees sign contracts with a condition that they dont join a union, an act sponsored by 2 Republicans no less, came to prevent judges today from stopping a lockout; its not jumping out as me as obvious.

Then, if suing to end the lockout failed, before the season started, some rookie would sue for free agency. And then rather than wait for Fehr and Bettman to crisis manage their way through chaos, we'd no doubt be waiting for court cases to play out before hockey could start.

Another intersting factoid, with the median salary jumping last cba, 50% vote for decertification could be really close now.

I do wonder sometimes though if the pro leagues arent ready to take a stab at the possibility that they may win a rule of reason case. Maybe it is reasonable for sports leagues to collude?

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11-18-2012, 09:28 PM
  #39
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Originally Posted by thinkwild View Post
I do wonder sometimes though if the pro leagues arent ready to take a stab at the possibility that they may win a rule of reason case. Maybe it is reasonable for sports leagues to collude?
I think both the PA from the NFL and NBA, and the other pro sports would be very interested observers. So would law professors... I could speculate that the NHL would want to try to avoid that fight. On the other hand, it would clear up the issue for them in the future. Who knows for sure what a Court would decide? There would be much more certainty for them, the NFL and the NBA...

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11-18-2012, 09:43 PM
  #40
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Originally Posted by thinkwild View Post
I do wonder sometimes though if the pro leagues arent ready to take a stab at the possibility that they may win a rule of reason case. Maybe it is reasonable for sports leagues to collude?
There's almost no chance they would win unless the courts ignore precedent, which is extremely unlikely.

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11-18-2012, 10:04 PM
  #41
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I guess, and hope, that such a case would a tough victory for the owners, and that the many cases like most recently american needle havent been laying the groundwork for an assault on what that professor recently linked here called the owners ultimate desire for the shangri-la of ever-lasting anti trust immunity.

But if the hockey players were to decertify, i wonder how hard would the owners try to prevent their killing of the union? Maybe hockey is the league they are prepared to try a decertified landscape in. It's really hard to get a handle on just how much leverage is in that course of action for players.

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11-18-2012, 10:25 PM
  #42
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Originally Posted by thinkwild View Post
What would be interesting to learn from legal types is how an act from the depression, said to be created in order to prevent judges from ending peaceful strikes and picket lines and preventing employers from making employees sign contracts with a condition that they dont join a union, an act sponsored by 2 Republicans no less, came to prevent judges today from stopping a lockout; its not jumping out as me as obvious.
The NLGA has an interesting history, doesn't it thinkwild?

For those who aren't familiar with it's history, it was passed by Congress in 1932 at a time when employees would go on strike and employers would file a lawsuit requesting an injunction and judges, who would deemed "in the pocket" of the employers would grant an injunction without hearing from the employees on the merits of their strike. Congress deemed it essential to limit the power of the federal courts to issue injunctions "in any case involving or growing out of any labor dispute."

The language of that last line was at the core of the dispute between the NFL and the NFLPA. The NFL argued that the language is broad enough to include lockouts within the definition of "labor dispute". The NFLPA argued that the NLGA's declared policy, established in history, was to protect the rights of unions and that so long as the issue at hand did not involve a union (the NFLPA decertified), it cannot be deemed a "labor dispute" within the context of the NLGA. The district court agreed with that argument. The Eight Circuit disagreed, saying that no where in the NLGA did it specify that the dispute must involve employees of a union.

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11-18-2012, 10:42 PM
  #43
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It just doesnt feel right somehow. Protecting the rights of workers not to have to sign contracts saying they wont join a union, or preventing judges from legislating against workers collectively organizing seems like it was done to protect the workers rights on whether or not to collectively organize. And if the players wish to decertify their union, that seems like the same right the nlga was trying to uphold. Not removing anti-trust remedies from non-unionized employees.

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11-18-2012, 11:14 PM
  #44
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Originally Posted by Fugu View Post
If I recall, you're not in Canada or the US either, so not sure that the same laws would apply.


Of course, the entire point to unionizing in the first place is to gain bargaining power. The Strike as a work stoppage measure favored employees, up to a point. The pendulum has swung in the other direction now, with employers using the reverse-Strike... aka, Lockout to coerce the union into accepting their terms.

What I believe we're seeing in pro sports anyway is this: is the presence of the union more helpful to the members or the employers? If the union loses more by being forced to collectively accept terms that favor the owners more than these favor them, the answer may be decertification. At least in sports, it wouldn't really be good at all to have no union as the entire system of drafting, free agency and 'contracting' practices would essentially disappear.

In England now--but I was in Vancouver when the union decertified due to the union and the hotel not getting a deal done.

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11-18-2012, 11:20 PM
  #45
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Decertifying is stupid at this point, if you were gonna do it, it should have been done long ago. the NHL is not the NFL, they've got no problem cancelling a season and losing games, they should have decertified in september.

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11-19-2012, 01:47 AM
  #46
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There would be no cap if the union disappeared. The teams could not together discuss nor impose any price controls (salary restraints).
True, but my point would be there would be nothing stopping owners from only offering un-guaranteed contracts, either.

Going from a collectively bargained atmosphere towards the "Wild West" goes both ways.

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11-19-2012, 02:28 AM
  #47
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And even then, there's no guarantee Congress wouldn't change the laws in the interim to grant sports leagues antitrust exceptions, which they probably would.
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And you make this assumption based on what exactly? Your own wishful thinking?
Uh, not exactly. I'm basing it on the fact that Congress has already done so once.

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11-19-2012, 06:09 AM
  #48
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I doubt the players would really want a fully free market system. While it seems great to not have salary constraints, what you would end up with is a winfall for a small percentage of the players and a significant loss for the majority.

I wonder for example how players would react to the loss of guaranteed contracts. It would seem to me that this alone would give them pause not to go this route.

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11-19-2012, 06:28 AM
  #49
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Decertifying is hardly an option. If the owners are playing hardball with the players as a group, what will they do to individuals?

Players are all team minded guys. Why would they do anything other than slavishly follow thier leadership?

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11-19-2012, 07:05 AM
  #50
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True, but my point would be there would be nothing stopping owners from only offering un-guaranteed contracts, either.

Going from a collectively bargained atmosphere towards the "Wild West" goes both ways.
Just the owners themselves. For example Crosby says the Pens are offering 10 million a year, he'll take 9 if they guarantee it. And the bidding war continues...

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