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Lockout Discussion Thread 3.0

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Old
11-25-2012, 02:03 PM
  #151
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Yes. All contracts would be voided and any form of interactions between teams to try to regulate salaries (including the draft in general) would be liable under the anti-thrust laws as price fixing. It would be a massive free for all just like the soccer leagues in Europe.
I don't see how contracts themselves would be voided under decertification. Contracts are legally binding on both parties involved. The CBA did not create contract law. Contract law existed regardless of the CBA and thus the contracts need to be respected. The purpose of the CBA was to bring order to the the things that were either not regulated by contract law or modify certain aspects of contract law. Upon decertification the only thing left would be the contracts between the players and the teams and the contents of those contracts would still need to be respected. The CBA itself, which is the mechanism that controlled all the various interactions, would be voided. Therefore, there would be no salary cap; Gomez's contract could be bought out without any repercussions; any unsigned player (RFA or not) could sign with any team of his choosing; any drafted player not yet signed could sign with any team of his choice; etc.


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11-25-2012, 02:27 PM
  #152
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I don't see how contracts themselves would be voided under decertification. Contracts are legally binding on both parties involved. The CBA did not create contract law. Contract law existed regardless of the CBA and thus the contracts need to be respected. The purpose of the CBA was to bring order to the the things that were either not regulated by contract law or modify certain aspects of contract law. Upon decertification the only thing left would be the contracts between the players and the teams and the contents of those contracts would still need to be respected. The CBA itself, which is the mechanism that controlled all the various interactions, would be voided. Therefore, there would be no salary cap; Gomez's contract could be bought out without any repercussions; any unsigned player (RFA or not) could sign with any team of his choosing; any drafted player not yet signed could sign with any team of his choice; etc.
Unless I'm mistaken the current contracts all have the CBA as their basis, without it the contracts are void.

Examples of this basis can be seen with respect to: (and most likely a lot more.)
- No trade clauses.
- No movement clauses.

Players are completely in denial if they think decertification insures them any kind of payment whatsoever. All it can help with is putting an end to the lockout.

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Contracts are legally binding on both parties involved
Not under Labour law as I understand it. Since those were signed with the use of a union as intermediary, they would be void if such intermediary is broken up.


Last edited by vokiel: 11-25-2012 at 02:34 PM.
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11-25-2012, 02:31 PM
  #153
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It would be a definite gong show that the NHL would likely not recover from.

an owner free for all.

players especially the lesser players trying to figure out doctors, insurances, travel, hotels, trainers, etc etc etc.

possibility of non guaranteed contracts for a good portion of non star players.

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11-25-2012, 02:40 PM
  #154
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It would be a definite gong show that the NHL would likely not recover from.

an owner free for all.

players especially the lesser players trying to figure out doctors, insurances, travel, hotels, trainers, etc etc etc.

possibility of non guaranteed contracts for a good portion of non star players.
Obviously, most teams would still cover doctors, insurance, travel, and training.

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11-25-2012, 02:41 PM
  #155
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Originally Posted by vokiel View Post
Unless I'm mistaken the current contracts all have the CBA as their basis, without it the contracts are void.

Examples of this basis can be seen with respect to: (and most likely a lot more.)
- No trade clauses.
- No movement clauses.

Players are completely in denial if they think decertification insures them any kind of payment whatsoever. All it can help with is putting an end to the lockout.



Not under Labour law as I understand it. Since those were signed with the use of union as intermediary, they would be void.
The endgame in decertification is to file an anti-trust suit and suing for damages for locking out the players and failing to respect their contracts. But there's really no point in decertification if once they decertify the player's contract are null and void. How can you sue for damages if the contracts are null and void? But that's one of the legal arguments that the NHL will make if the union decertifies. For the NHL, the contracts will be null and void for the exact reasons you are stating. The NHLPA will argue otherwise. I just don't think that in reality the courts would buy that argument since the contracts are term contracts that are set to expire after certain amounts of time (the term differs for each player).

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11-25-2012, 02:56 PM
  #156
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The end game in decertification is to file an anti-trust suit and suing for damages for locking out the players and failing to respect their contracts. But there's really no point in decertification if once they decertify the player's contract are null and void. How can you sue for damages if the contracts are null and void? But that's one of the legal arguments that the NHL will make if the union decertifies. For the NHL, the contracts will be null and void for the exact reasons you are stating. The NHLPA will argue otherwise. I just don't think that in reality the courts would buy that argument since the contracts are term contracts that are set to expire after certain amounts of time (the term differs for each player).
The current lockout isn't illegal. The goal of decertification is to make it illegal from the moment there's no union. The only damages that players could claim would be for price fixing when the lockout is made illegal. So if the league starts their activities as soon as the PA opts for decertification I don't see which damages they can argue about. The owners will just, as you say, argue about a clean slate and try re-negotiating contracts without a CBA in the way.

There's no retro-activity here. You can't claim that you're no longer a union therefor you should receive damage payments for when you were. That makes no sense. Add that you can't either as a player say I was making X as an employee with CBA advantages therefor I should be making X as a company trading with the same company. I don't see how this can work. It's certainly crooked if it does imho.

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11-25-2012, 03:12 PM
  #157
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Obviously, most teams would still cover doctors, insurance, travel, and training.
maybe maybe not. depends on how po'ed the owners are.

do owners only give these benefits to certain players? that could fracture the players especially ones that dont make as much. Same as guaranteed contracts. How would many players feel if 20 percent of the league had guarantees while the rest didnt or had much better benefits.

What you say may be true in terms of stars but the rest, i wouldnt count on it.

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11-25-2012, 03:27 PM
  #158
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The current lockout isn't illegal. The goal of decertification is to make it illegal from the moment there's no union. The only damages that players could claim would be for price fixing when the lockout is made illegal. So if the league starts their activities as soon as the PA opts for decertification I don't see which damages they can argue about. The owners will just, as you say, argue about a clean slate and try re-negotiating contracts without a CBA in the way.

There's no retro-activity here. You can't claim that you're no longer a union therefor you should receive damage payments for when you were. That makes no sense. Add that you can't either as a player say I was making X as an employee with CBA advantages therefor I should be making X as a company trading with the same company. I don't see how this can work. It's certainly crooked if it does imho.
The argument by the NHLPA will be that they are owed compensation from the moment the NHLPA is decertified because at that point the lockout will be deemed illegal by virtue of the fact that there the players no longer have a bargaining agent. I don't believe I said anything about retroactivity of damages prior to decertification... The damages will come as a result of the NHL cancelling the whole season if the NHLPA decertifies, which Daly already said they would.

This is validated by the fact what the Habs, Flames and Oilers players attempted to do earlier in September which is to get an injunction to call the lockout illegal because the union is not registered in those respective provinces. The injunctions were rejected because they were not deemed urgent but the Tribunals will still hold a hearing later. As such, if the labour tribunals end up determining that there is no union and thus the lockout is illegal, the players from Alberta and Quebec teams will actually have to be allowed to work which essentially means the Habs, the Flames and the Oilers would have to honour their contracts. But, I'm not sure if the tribunals will accept the argument that they have no bargaining agent.

If, however, the NHLPA decertifies altogether, the thinking on the part of the NHLPA and the players is that ALL 30 NHL teams will need to honour the contracts despite there being no CBA in place. The NHL, as I said in my previous post, will argue that the contracts are all null and void, which is also your argument. The Courts will need to decide if they are or not. That is why decertification is a measure of last resort because only one side will be left standing. If the Courts side with the NHL that the contracts are null and void, then the NHL can turn around and say, take our initial 43% HRR offer or nothing. If the Court sides with the players, then the owners will be on the hook for all the money that they failed to pay the players since decertification and then they still need to renegotiate the CBA. The damages for breach of contract would be in the billions.

Essentially, my point is that the players would NOT decertify unless they thought that there contracts would be null and void. That defeats their entire objective. They fully expect their contracts to be honoured with decertification.


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11-25-2012, 03:45 PM
  #159
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They re-certify and re-negotiate a new CBA? Hahaha right. You know the fact that the NFL eventually won its case could have a serious impact here. It would certainly be an entertaining legal case, that's for sure.

Here's a question: What if the league answers the decertification by disbanding? They too could just disband and re-form eventually, no?

Edit: http://www.matchsticksandgasoline.co...elations-board

Basically, the PA is a union and has operated as such in the past therefor it should be considered a Union. It's the "if it looks like a duck, swims like a duck and quacks like a duck, it must be a duck" argument.


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11-25-2012, 03:50 PM
  #160
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They re-certify and re-negotiate a new CBA? Hahaha right. You know the fact that the NFL eventually won its case could have a serious impact here. It would certainly be an entertaining legal case, that's for sure.

Here's a question: What if the league answers the decertification by disbanding? They too could just disband and re-form eventually, no?
do the nhl own all the franchises? the canadiens existed previous to the nhl. if the league folded could the canadiens join another league?

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11-25-2012, 03:52 PM
  #161
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You sound very confident. If Fehr was that confident, they would have already done it
Fehr doesn't make the decisions, the players do. It is risky for them, a lot of them...Fehr can try to convince them but he can't force them to do it.

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11-25-2012, 03:54 PM
  #162
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maybe maybe not. depends on how po'ed the owners are.

do owners only give these benefits to certain players? that could fracture the players especially ones that dont make as much. Same as guaranteed contracts. How would many players feel if 20 percent of the league had guarantees while the rest didnt or had much better benefits.

What you say may be true in terms of stars but the rest, i wouldnt count on it.
small market teams would have to probably as they'd want good players too

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11-25-2012, 03:55 PM
  #163
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do the nhl own all the franchises? the canadiens existed previous to the nhl. if the league folded could the canadiens join another league?
No they don't own squat, except for the Phoenix Coyotes. The NHL is a corporative association. They share some interests through contractual means, that is all. I don't know the legal details of how the NHL could disband other than it would have to be an agreement between the 30 owners.

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11-25-2012, 03:56 PM
  #164
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They re-certify and re-negotiate a new CBA? Hahaha right. You know the fact that the NFL eventually won its case could have a serious impact here. It would certainly be an entertaining legal case, that's for sure.

Here's a question: What if the league answers the decertification by disbanding? They too could just disband and re-form eventually, no?
I'm pretty sure the NFL never outright won its case. The Courts decided twice to refuse two injunction attempts by the players to allow the parties to continue to negotiate. The implications of such a decision scare the courts because there's so much money on the line and it would probably take years to appeal the decision so they prefer to facilitate mediation. In the end, the two sides came to an agreement.

The NHL could disband in theory but the losses would be monumental. It would essentially void all the contracts they signed with different media and sponsorships. It would be the end of the NHL as we know it. All the teams that have lease agreements with arenas might lose the benefit of term and be ordered to pay the remaining years right away. The NHL would probably lose all their trademark rights too. It would be much harder for the NHL to disband and restart than the NHLPA.

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11-25-2012, 04:14 PM
  #165
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I'm pretty sure the NFL never outright won its case. The Courts decided twice to refuse two injunction attempts by the players to allow the parties to continue to negotiate. The implications of such a decision scare the courts because there's so much money on the line and it would probably take years to appeal the decision so they prefer to facilitate mediation. In the end, the two sides came to an agreement.

The NHL could disband in theory but the losses would be monumental. It would essentially void all the contracts they signed with different media and sponsorships. It would be the end of the NHL as we know it. All the teams that have lease agreements with arenas might lose the benefit of term and be ordered to pay the remaining years right away. The nHL would probably lose all their trademark rights too. It would be much harder for the NHL to disband and restart than the NHLPA.
Well the NHL losing trademark rights doesn't mean the teams losing their own trademarks. If it's the owners are collectively agreeing on disbanding, they can agree on keeping their own trademarks which I'm pretty sure they already own and exclusively loan to the NHL. (e.g. Colorado still owns Nordiques, Phoenix owning Jets, etc.. )

I was just asking because that's what the players would be doing essentially. Pretty much re-starting a new company under a new name to avoid or bring legal matters.

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11-25-2012, 04:38 PM
  #166
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Well the NHL losing trademark rights doesn't mean the teams losing their own trademarks. If it's the owners are collectively agreeing on disbanding, they can agree on keeping their own trademarks which I'm pretty sure they already own and exclusively loan to the NHL. (e.g. Colorado still owns Nordiques, Phoenix owning Jets, etc.. )

I was just asking because that's what the players would be doing essentially. Pretty much re-starting a new company under a new name to avoid or bring legal matters.
The NHLPA is not a corporation. It's a bargaining agent that is recognized by virtue of the labour legislation of the jurisdiction where it is registered. Corporations must be incorporated whereas union must be certified. Once a certified union becomes recognized, it and its members obtain certain protections and advantages in relation to the employer that non-unionized employees did not have. It's much easier to decertify than to wind up a company.

For the team trademark stuff, I'm not really sure how that would work. It would be interesting to know whether the teams can leave the NHL and keep their trademarks. I'm sure the franchise agreement with the NHL has provided for that possibility.

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11-25-2012, 04:47 PM
  #167
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Fehr doesn't make the decisions, the players do. It is risky for them, a lot of them...Fehr can try to convince them but he can't force them to do it.
Why are you arguing semantics? If Fehr thought is was a low risk/high reward move he would encourage the players in that direction. Who else would they turn to for an opinion on that matter.

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11-25-2012, 04:50 PM
  #168
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Average salary is the more important number, especially in the case of players like Chara who should play out their contracts. If A is making 6 million one year and 9 million the next, it's equivalent to 7.5 million twice.

He's worth a lot more than his contract to Jeremy Jacobs. The Boston Bruins are profitable, and that's because they go deep in the playoffs most years.... they've played over 40 playoff games in the past three years; and they have a great regular season record that puts butts in seats.
No it's not. Not when you're trying to establish whether or not a player was over/underpaid during one said year.

As for him being worth more, that's debatable.

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11-25-2012, 05:19 PM
  #169
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small market teams would have to probably as they'd want good players too
maybe maybe not. i guess it depends on the degree. you will definitely see which teams will run it like a business.

The teams in the red currently will not maintain the current benefits the players have received.

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11-25-2012, 05:30 PM
  #170
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Why are you arguing semantics? If Fehr thought is was a low risk/high reward move he would encourage the players in that direction. Who else would they turn to for an opinion on that matter.
I'm not arguing semantics. Fehr might think this is a good option but it's going to be a tough sell for the majority of the union. It's high risk, high reward, more of a last resort type of move.

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11-25-2012, 07:26 PM
  #171
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I'm not arguing semantics. Fehr might think this is a good option but it's going to be a tough sell for the majority of the union. It's high risk, high reward, more of a last resort type of move.
You're probably right that it's going to be a tough sell. It probably involves most current players losing money, and there's risk involved. But:

- Many players are angry. It looks like they were ready to accept the equivalent of the NBA CBA, but Bettman & co. insisted on going a step further, a facewash after the whistle. It may not be rational from a self-interest POV, but hockey players are emotional, competitive people.

- If they don't decertify now, there's a good chance they will in 6 years, after another lockout. Some people believe that the owners will be satisfied with 50% of revenues... I don't believe it, and I don't think players do.

- Something that was puzzling to me in the recent Erik Cole interview was his comments about fighting for future players. Maybe this is what he had in mind. It would make a lot more sense than if he was referring to the make whole battle. If some players are thankful for those who battled in 94-95 and feel the obligation to do something for the next generation, taking the difficult road to a post-CBA league could be the best way to go about it.

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11-25-2012, 07:35 PM
  #172
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I think decertification would be an asinine move and hope that guys like Neuvirth and Hamrlik know enough others of like mind to prevent the union from doing such a stupid move. That type of move would only help the rich players and damage the weaker lights of the players union.

Of course, with idiots like Bolland (man, if I tweeted that I want my boss dead I would lose my job faster than I could finish typing the tweet. I guess the players' sense of entitlement extends beyond hockey fame and fortune...sigh...) running around, it is amazing that the players haven't managed to screw themselves completely...oh, wait, they are locked out because they can not understand why the guys who pay all of the bills want 50% of the money. Never mind, I actually do understand why the NHLPA is FUBAR at the moment...

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11-25-2012, 07:40 PM
  #173
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I'm not arguing semantics. Fehr might think this is a good option but it's going to be a tough sell for the majority of the union. It's high risk, high reward, more of a last resort type of move.
You might be right... although the players have the final say, my gut feeling is that they rely heavily on Fehr to determine what strategy is best to pursue at any given time

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11-25-2012, 08:01 PM
  #174
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I think decertification would be an asinine move and hope that guys like Neuvirth and Hamrlik know enough others of like mind to prevent the union from doing such a stupid move. That type of move would only help the rich players and damage the weaker lights of the players union.
Actually, fighting an antitrust battle probably helps Neuvirth a lot more than fighting the current CBA dispute. He's a young player who has a lot of contracts ahead of him. More competitive free agency could help him find a team that could use his talents if the Caps decide to go with Holtby. I'm understand Neuvirth being frustrated right now, he's fighting to preserve current contracts while he himself doesn't have one beyond this season... but fighting for a better future makes more sense for a talented 24 year old goalie.

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11-25-2012, 08:09 PM
  #175
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Decertification would remove a lot of dead wood from the league like Scott Gomez.

My previous position was that from a Habs standpoint the best option was to have a 2012-2013 season, to allow us to complete our rebuild/tank/transition/development. However, decertification would be fantastic for the Habs. We're one of the few teams that could afford a 100 million dollar payroll.

If the 2013 NHL entry draft is cancelled, each of MacKinnon, Jones, Barkov, Drouin, and Lindholm should be offered a 6 year, 38 million dollar contract from the Habs, with a 2 million dollar signing bonus and 6 million per season salary. We can really mop up. Toronto and New York will be our only competition, so we might only get 1 or 2 of them... better than the 1 we would have had with a season.

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