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

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Old
11-19-2012, 07:22 AM
  #51
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Originally Posted by BonkTastic View Post
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.
Exactly, which is why permanent decertification and a "wild west" environment is not going to happen. A small minority on both sides (the richest owners and the best players) would benefit while everyone else would suffer.

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11-19-2012, 07:36 AM
  #52
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Uh, not exactly. I'm basing it on the fact that Congress has already done so once.
You might want to specify what exactly you are talking about here. The 1961 Sports Broadcasting Act deals specifically with a limited antitrust exemption for pooling television rights. Congress has not done anything with regards to expanding antitrust exemptions for professional sports with regards to labor issues, in fact the opposite as in 1998 they removed the aspects of baseball's antitrust exemption dealing with labor.

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11-19-2012, 09:37 AM
  #53
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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.
I understand but couldn't you argue that while the individual NHL teams are competitors as a whole(under the NHL umbrella) they are dependent on one another?

If the teams set their own schedules, opponents, etc I could buy into the notion that they would be complete competitors but since they all rely on each other for competition, funds, talent, and logistics wouldn't they have a duty to create a competitive atmosphere amongst each other?

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11-19-2012, 10:05 AM
  #54
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Originally Posted by chasespace View Post
I understand but couldn't you argue that while the individual NHL teams are competitors as a whole(under the NHL umbrella) they are dependent on one another?

If the teams set their own schedules, opponents, etc I could buy into the notion that they would be complete competitors but since they all rely on each other for competition, funds, talent, and logistics wouldn't they have a duty to create a competitive atmosphere amongst each other?
The Supreme Court contemplated this in 1922. In Federal Baseball Club v. National League, the Supreme Court held that the Sherman Antitrust Act did not apply to Major League Baseball because it didn't consider baseball interstate commerce for the purposes of the Sherman Act. Since that decision, sports organizations have been given exemption to Sherman using the same logic.

That being said, I understand where you're coming from. The alternative side of the coin is that while the franchises compete on the field, they require unique cooperation off the field to ensure the overall financial health of the single entity that is the NHL.

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11-19-2012, 10:11 AM
  #55
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Originally Posted by Crease View Post
The Supreme Court contemplated this in 1922. In Federal Baseball Club v. National League, the Supreme Court held that the Sherman Antitrust Act did not apply to Major League Baseball because it didn't consider baseball interstate commerce for the purposes of the Sherman Act. Since that decision, sports organizations have been given exemption to Sherman using the same logic.
No they haven't, both the courts and Congress have flatly refused to extend antitrust exemptions to other sports, with the exception of for the purposes of television (and a few years ago Congress was talking about revoking the NFL's antitrust exemption with regards to that), and baseball's no longer applies to any labor-related issues.

Professional sports organizations can get around the Sherman Act due to the Non-Statutory Labor Exemption, by having a negotiated CBA with the Players' Association.

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11-19-2012, 10:14 AM
  #56
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Originally Posted by Epsilon View Post
No they haven't, both the courts and Congress have flatly refused to extend antitrust exemptions to other sports, with the exception of for the purposes of television (and a few years ago Congress was talking about revoking the NFL's antitrust exemption with regards to that), and baseball's no longer applies to any labor-related issues.

Professional sports organizations can get around the Sherman Act due to the Non-Statutory Labor Exemption, by having a negotiated CBA with the Players' Association.
Thanks Epsilon. I was confused about that part. Thanks for clarifying. That would explain why the NHLPA decertifying would expose the NHL to antitrust litigation.

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11-19-2012, 12:01 PM
  #57
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Originally Posted by BonkTastic View Post
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.
Totally agree.

Things like guaranteed contracts, the pension, travel and meal allowances, etc., all become open to whatever a player can negotiate, and as I understand it every player (including rookies) would effectively be a UFA if not under contract.

IMO, star players, and potential star players, would really cash in, and 80% of the league would be making significantly less than they do now.

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11-19-2012, 12:32 PM
  #58
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IMO, star players, and potential star players, would really cash in, and 80% of the league would be making significantly less than they do now.
That's where the NHLPA has to be careful. Push too hard, go too far, and the end result could be Fehr hurting 80% of the players he represents.

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11-19-2012, 12:48 PM
  #59
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Originally Posted by BonkTastic View Post
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.
I agree, but.... since every contract would need to be negotiated with each player individually, do you think Crosby's or Weber's agents wouldn't build in golden parachutes? They also could entertain bids from any team that wanted to bid, and the teams couldn't talk to each other about what was being offered. If there's no cap/CBA, bonuses, options, fringe benefits... a house on a tropical island.... anything would be possible.

Edit: I see others have said as much.

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11-19-2012, 01:26 PM
  #60
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Originally Posted by Beukeboom Fan View Post
Totally agree.

Things like guaranteed contracts, the pension, travel and meal allowances, etc., all become open to whatever a player can negotiate, and as I understand it every player (including rookies) would effectively be a UFA if not under contract.

IMO, star players, and potential star players, would really cash in, and 80% of the league would be making significantly less than they do now.
In my opinion, it would be complete chaos and the NHL as we know it would cease to exist. There would be far fewer teams in any future professional league and hundreds of NHL and minor league players would lose their jobs.

But hey, go for it Donny.

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11-19-2012, 01:45 PM
  #61
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In my opinion, it would be complete chaos and the NHL as we know it would cease to exist. There would be far fewer teams in any future professional league and hundreds of NHL and minor league players would lose their jobs.

But hey, go for it Donny.

"Donny" seems to be outlining all the options for his constituency.

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11-19-2012, 01:56 PM
  #62
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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.

I would expect the NHL would take the same approach that the NBA took: essentially arguing that the decertification is a sham negotiating tactic rather than a genuine impasse. One other position the NBA advanced that was never legally ruled on is that all player contracts would be void in the absence of a union and collective bargaining agreement. How a court might find that argument if the NHL took a similar view I have no idea. Ultimately the NHL would prefer to have a PA union to collectively bargain with.

Brown v NFL seems to set a precedent that the NHL would be largely immune to anti-trust claims for some period before and following the determination of an impasse, though the ruling doesn't establish specific time boundaries. It was interesting that anti-trust lawsuits were still brought by players in the NFL and NBA cases in spite of that ruling, though none were resolved in court.


Brown v NFL is an interesting read for those inclined to court rulings.
http://www.law.cornell.edu/supct/html/95-388.ZO.html

Quote:
If the antitrust laws apply, what are employers to do once impasse is reached? If all impose terms similar to their last joint offer, they invite an antitrust action premised upon identical behavior (along with prior or accompanying conversations) as tending to show a common understanding or agreement. If any, or all, of them individually impose terms that differ significantly from that offer, they invite an unfair labor practice charge. Indeed, how can employers safely discuss their offers together even before a bargaining impasse occurs? A preimpasse discussion about, say, the practical advantages or disadvantages of a particular proposal, invites a later antitrust claim that they agreed to limit the kinds of action each would later take should an impasse occur. The same is true of postimpasse discussions aimed at renewed negotiations with the union. Nor would adherence to the terms of an expired collective bargaining agreement eliminate a potentially plausible antitrust claim charging that they had "conspired" or tacitly "agreed" to do so, particularly if maintaining the status quo were not in the immediate economic self interest of some. Cf. Interstate Circuit, supra, at 222-223; 6 Areeda, supra, at 1425. All this is to say that to permit antitrust liability here threatens to introduce instability and uncertainty into the collective bargaining process, for antitrust law often forbids or discourages the kinds of joint discussions and behavior that the collective bargaining process invites or requires.

We do not see any obvious answer to this problem. We recognize, as the Government suggests, that, in principle, antitrust courts might themselves try to evaluate particular kinds of employer understandings, finding them "reasonable" (hence lawful) where justified by collective bargaining necessity. But any such evaluation means a web of detailed rules spun by many different nonexpert antitrust judges and juries, not a set of labor rules enforced by a single expert administrative body, namely the Labor Board. The labor laws give the Board, not antitrust courts, primary responsibility for policing the collective bargaining process. And one of their objectives was to take from antitrust courts the authority to determine, through application of the antitrust laws, what is socially or economically desirable collective bargaining policy. See supra, at 3-4; see also Jewel Tea, 381 U. S., at 716-719 (opinion of Goldberg, J.).

Both petitioners and their supporters advance several suggestions for drawing the exemption boundary line short of this case. We shall explain why we find them unsatisfactory.
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The problem is aggravated by the fact that "impasse" is often temporary, see Bonanno Linen, supra, at 412 (approving Board's view of impasse as "a recurring feature in the bargaining process . . . a temporary deadlock or hiatus in negotiations which in almost all cases is eventually broken, through either a change of mind or the application of economic force ") (internal quotation marks omitted); W. Simkin & N. Fidandis, Mediation and the Dynamics of Collective Bargaining 139-140 (2d ed. 1986); it may differ from bargaining only in degree, see 1 Hardin, supra, at 691-696; Taft Broadcasting Co., 163 N. L. R. B., at 478; it may be manipulated by the parties for bargaining purposes, see Bonanno Linen, supra, at 413, n. 8 (parties might, for strategic purposes, "precipitate an impasse"); and it may occur several times during the course of a single labor dispute, since the bargaining process is not over when the first impasse is reached, cf. J. Bartlett, Familiar Quotations 754:8 (16th ed. 1992). How are employers to discuss future bargaining positions during a temporary impasse? Consider, too, the adverse consequences that flow from failing to guess how an antitrust court would later draw the impasse line. Employers who erroneously concluded that impasse had not been reached would risk antitrust liability were they collectively to maintain the status quo, while employers who erroneously concluded that impasse had occurred would risk unfair labor practice charges for prematurely suspending multiemployer negotiations.
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For these reasons, we hold that the implicit ("nonstatutory") antitrust exemption applies to the employer conduct at issue here. That conduct took place during and immediately after a collective bargaining negotiation. It grew out of, and was directly related to, the lawful operation of the bargaining process. It involved a matter that the parties were required to negotiate collectively. And it concerned only the parties to the collective bargaining relationship.

Our holding is not intended to insulate from antitrust review every joint imposition of terms by employers, for an agreement among employers could be sufficiently distant in time and in circumstances from the collective bargaining process that a rule permitting antitrust intervention would not significantly interfere with that process. See, e.g., 50 F. 3d, at 1057 (suggesting that exemption lasts until collapse of the collective bargaining relationship, as evidenced by decertification of the union); El Cerrito Mill & Lumber Co., 316 N. L. R. B., at 1006-1007 (suggesting that "extremely long" impasse, accompanied by "instability" or "defunctness" of multiemployer unit, might justify union withdrawal from group bargaining). We need not decide in this case whether, or where, within these extreme outer boundaries to draw that line. Nor would it be appropriate forus to do so without the detailed views of the Board, to whose "specialized judgment" Congress "intended to leave" many of the "inevitable questions concerning multiemployer bargaining bound to arise in the future." Buffalo Linen, 353 U. S., at 96 (internal quotation marks omitted); see also Jewel Tea, 381 U. S., at 710, n. 18.

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11-19-2012, 02:26 PM
  #63
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"Donny" seems to be outlining all the options for his constituency.
Even the ones that should never be considered.

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11-19-2012, 02:35 PM
  #64
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That may be true. I don't think there are any winners when either a strike or lockout is pursued.

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11-19-2012, 03:24 PM
  #65
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That may be true. I don't think there are any winners when either a strike or lockout is pursued.
Wait, I thought the owners WON last time.

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11-19-2012, 07:01 PM
  #66
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Originally Posted by Crease View Post
The Supreme Court contemplated this in 1922. In Federal Baseball Club v. National League, the Supreme Court held that the Sherman Antitrust Act did not apply to Major League Baseball because it didn't consider baseball interstate commerce for the purposes of the Sherman Act. Since that decision, sports organizations have been given exemption to Sherman using the same logic.

That being said, I understand where you're coming from. The alternative side of the coin is that while the franchises compete on the field, they require unique cooperation off the field to ensure the overall financial health of the single entity that is the NHL.
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Originally Posted by Epsilon View Post
No they haven't, both the courts and Congress have flatly refused to extend antitrust exemptions to other sports, with the exception of for the purposes of television (and a few years ago Congress was talking about revoking the NFL's antitrust exemption with regards to that), and baseball's no longer applies to any labor-related issues.

Professional sports organizations can get around the Sherman Act due to the Non-Statutory Labor Exemption, by having a negotiated CBA with the Players' Association.
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Originally Posted by Crease View Post
Thanks Epsilon. I was confused about that part. Thanks for clarifying. That would explain why the NHLPA decertifying would expose the NHL to antitrust litigation.
Yup. The SCOTUS has long realized that it's 1922 decision in Federal Baseball Club v National League - which gave baseball it's peculiar anti-trust exemption by ruling that Baseball was not interstate commerce - was completely wrong. They have consistently rejected any attempts to extend it to other sports/leagues, but have twice upheld it as Stare Decisis - and passed the buck to Congress to change it if they so chose.

The Court upheld it with a one paragraph unsigned decision in Toolson v. New York Yankees, Inc., 346 U.S. 356 (1953)
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In Federal Baseball Club of Baltimore v. National League of Professional Baseball Clubs, 259 U. S. 200, this Court held that the business of providing public baseball games for profit between clubs of professional baseball players was not within the scope of the federal antitrust laws. Congress has had the ruling under consideration, but has not seen fit to bring such business under these laws by legislation having prospective effect. The business has thus been left for thirty years to develop on the understanding that it was not subject to existing antitrust legislation. The present cases ask us to overrule the prior decision and, with retrospective effect, hold the legislation applicable. We think that, if there are evils in this field which now warrant application to it of the antitrust laws, it should be by legislation. Without reexamination of the underlying issues, the judgments below are affirmed on the authority of Federal Baseball Club of Baltimore v. National League of Professional Baseball Clubs, supra, so far as that decision determines that Congress had no intention of including the business of baseball within the scope of the federal antitrust laws.

Affirmed.
They upheld it again in the Curt Flood case - Flood v. Kuhn - 407 U.S. 258 (1972) . Justice Blackmun wrote:
Quote:
In view of all this, it seems appropriate now to say that:

1. Professional baseball is a business, and it is engaged in interstate commerce.

2. With its reserve system enjoying exemption from the federal antitrust laws, baseball is, in a very distinct sense, an exception and an anomaly. Federal Baseball and Toolson have become an aberration confined to baseball.

3. Even though others might regard this as "unrealistic, inconsistent, or illogical," see Radovich, 352 U.S. at 352 U. S. 452, the aberration is an established one, and one that has been recognized not only in Federal Baseball and Toolson, but in Shubert, International Boxing, and Radovich, as well, a total of five consecutive cases in this Court. It is an aberration that has been with us now for half a century, one heretofore deemed fully entitled to the benefit of stare decisis, and one that has survived the Court's expanding concept of interstate commerce. It rests on a recognition and an acceptance of baseball's unique characteristics and needs.

4. Other professional sports operating interstate -- football, boxing, basketball, and, presumably, hockey [Footnote 19] and golf [Footnote 20] -- are not so exempt.

...

This emphasis and this concern are still with us. We continue to be loath, 50 years after Federal Baseball and almost two decades after Toolson, to overturn those cases judicially when Congress, by its positive inaction, has allowed those decisions to stand for so long and, far beyond mere inference and implication, has clearly evinced a desire not to disapprove them legislatively.

Accordingly, we adhere once again to Federal Baseball and Toolson, and to their application to professional baseball. We adhere also to International Boxing and Radovich, and to their respective applications to professional boxing and professional football. If there is any inconsistency or illogic in all this, it is an inconsistency and illogic of long standing that is to be remedied by the Congress, and not by this Court. If we were to act otherwise, we would be withdrawing from the conclusion as to congressional intent made in Toolson and from the concerns as to retrospectivity therein expressed. Under these circumstances, there is merit in consistency, even though some might claim that beneath that consistency is a layer of inconsistency.

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11-19-2012, 07:40 PM
  #67
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I know at one of my hotels, the union decertified and the owners ended up bending the workers over the canteen counter. How would decertification help the players?
I think decertification only really works in jobs where you are highly valuable and nearly impossible to replace. There are no jobs at a hotel that you couldn't take someone off the street and teach them how to do in a day or two. Try finding another Pavel Datsyuk on the street

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What would be the repercussions of the Union decertifying? The NBAPA did it last year didn't they?
There would be numerous repercussions, mainly a bunch of teams would fold almost immediately.

There would be no draft, so you could expect to see a lot more homerism in young guys signing with their teams growing up as a child. Toews in the 'Peg? Tavares going straight to Toronto out of junior? Do you honestly think a guy like Nash would go to Columbus if he wasn't forced there by the rules of the league? Or that Tavares would go to the Island by choice? Big markets like LA, NYR, Toronto, Montreal, Chicago, Detroit would be able to HORDE every good player out there with no system to equalize for the also rans.

There would be no unrestricted free agency either, once a contract ran out, you are free to sign with anyone you wanted.

It would probably shrink the league by a good 30-40% but it would make for a much stronger game afterwards (I think anyway).

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11-19-2012, 09:26 PM
  #68
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I think decertification only really works in jobs where you are highly valuable and nearly impossible to replace. There are no jobs at a hotel that you couldn't take someone off the street and teach them how to do in a day or two. Try finding another Pavel Datsyuk on the street



There would be numerous repercussions, mainly a bunch of teams would fold almost immediately.

There would be no draft, so you could expect to see a lot more homerism in young guys signing with their teams growing up as a child. Toews in the 'Peg? Tavares going straight to Toronto out of junior? Do you honestly think a guy like Nash would go to Columbus if he wasn't forced there by the rules of the league? Or that Tavares would go to the Island by choice? Big markets like LA, NYR, Toronto, Montreal, Chicago, Detroit would be able to HORDE every good player out there with no system to equalize for the also rans.

There would be no unrestricted free agency either, once a contract ran out, you are free to sign with anyone you wanted.

It would probably shrink the league by a good 30-40% but it would make for a much stronger game afterwards (I think anyway).
please oh please, Fehr decertify

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11-19-2012, 11:32 PM
  #69
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Originally Posted by Blackhawkswincup View Post
Which would lead to NHL pushing for non-guaranteed contracts
There would be nothing to push for, each player could sign a non-guaranteed contract or a guaranteed one.

Each contract would be dependent upon negotiation between the player and team

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11-19-2012, 11:49 PM
  #70
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Originally Posted by Stix and Stones View Post
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...
Again, that would benefit a few dozen top players and about five or six teams who could afford to give big-buck guaranteed contracts. The rest would be stuck with lowball offers and no guaranteed deals.

Anyway, decertification is a legal twilight zone. No way does the NHLPA do this. It won't lead to any happy result.

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11-20-2012, 12:09 AM
  #71
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Originally Posted by Stix and Stones View Post
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...
And they tell him to [mod] hit the road.

We are talking about the players taking a small step backwards in pay, and not even that really with the "make whole" provision, just a small speed bump really, compared with losing guaranteed contracts? No chance they wade into those deep waters. Too many players with way too much to lose. It would potentially cost many players tens of millions of dollars.


Last edited by Fugu: 11-20-2012 at 12:34 AM. Reason: not necessary to do that
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11-20-2012, 12:33 AM
  #72
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I imagine we don't see a decertification unless the season gets cancelled.

Edit: It that happens, I wonder what the chances are of a group of owners breaking off to form a new league? I can see the Fehr-Bettman feud resulting from a decert being a MAD deal. Sorry if that's been discussed and disproven before and I missed it.

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11-20-2012, 12:38 AM
  #73
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if the union decertifies, any know what happens

1. Trades - assume they are outlawed, or at least effectively automatically ntc'd

2. Existing contracts - do they default back to the team that signed them?

3. Will some teams/players try and get out of their contracts?

4. Draft dead?

5. ELCs dead? All rookies might have a cause to challenge their ELC contracts legitimacy and get them annulled.

6. Unsigned prospects now UFAs?

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11-20-2012, 02:54 AM
  #74
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Originally Posted by Crease View Post
The length of time it takes for the courts to settle the antitrust dispute is key here. Lawyers for both the NHL and NHLPA realize that antitrust litigation can take years. So I don't believe the prospect of paying treble damages would put any significant pressure on the NHL to lift the lockout in the short-run.

When they filed anti-trust suits during the baseball strike didn't it take less than a week until a judge issued an injunction against the owners?

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11-20-2012, 03:15 PM
  #75
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Brown v NFL seems to set a precedent that the NHL would be largely immune to anti-trust claims for some period before and following the determination of an impasse, though the ruling doesn't establish specific time boundaries. It was interesting that anti-trust lawsuits were still brought by players in the NFL and NBA cases in spite of that ruling, though none were resolved in court.


Brown v NFL is an interesting read for those inclined to court rulings.
http://www.law.cornell.edu/supct/html/95-388.ZO.html
"Following
the United States Supreme Court’s 1996 decision in Brown v. Pro Football,
Inc.,11 a union wishing to pursue an antitrust claim against management
cannot escape the strictures of the non-statutory exemption until its labor
dispute is “sufficiently distant in time and in circumstances from the
collective-bargaining process.”12

This standard has subsequently been
interpreted to require that employees dissolve their union—and thereby
completely forgo all of the benefits accorded to them under labor law—
before pursuing an antitrust claim against management.13
(See, e.g., Michael C. Harper, Multiemployer Bargaining, Antitrust Law, and Team
Sports: The Contingent Choice of a Broad Exemption, 38 WM. & MARY L. REV. 1663,
1722 (1997) (“professional team sport athletes . . . can still free themselves to bring
antitrust challenges to league-imposed labor market restraints by decertifying their union and thereby eliminating any collective bargaining process with which antitrust challenges could interfere.”); Eric D. Scheible, Note: o Runs. o Hits. One Error: Eliminating Major League Baseball’s Antitrust Exemption Will ot Save the Game, 73 U. DET. MERCY L. REV. 73, 99 (1995) (finding that Brown implies that employees must either forgo unionization or decertify an existing union before pursuing any potential antitrust remedies against management). "


http://papers.ssrn.com/sol3/papers.c...act_id=1978517

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