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2012-13 Lockout Discussion Part VII: The Last Waltz "Cut the sheet & drop the puck!"

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Old
11-29-2012, 06:40 AM
  #801
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Disclaimer of interest. Union is dissolved. Players can file anti-trust lawsuits against the NHL.

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If NHLPA ever decertified, recertification (or reforming itself) would be condition to a deal - NHL wants Union for antitrust reasons
https://twitter.com/EricOnSportsLaw/...23925660704768

Quote:
Yes - threat of antitrust litigation can be potent MT "@DeWittCBS Eric This is why decertification is such a good negotiation tactic right
https://twitter.com/EricOnSportsLaw/...25703286435841

Decertification takes forever. No 45 day waiting period.

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11-29-2012, 07:45 AM
  #802
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When the NFL decertified in 1989 it was not settled in court until 1992 and there was not a new CBA until 1993. How did they continue to play without a CBA?

Either way the landmark antitrust suit the players won was McNeil v. NFL. At the time the NFL did not have true unrestricted free agency (right of first refusal required compensation for all FA signings). The players successfully made the argument that this right of first refusal rule was an antitrust violation by the league (limited the players' ability to sell their talents in a free market). Reggie White, on behalf of all NFL players, filed a class action suit against the league based on the McNeil decision. The league then opted to settle, giving the players UFA in exchange for a hard cap.

I am by no means a lawyer, but I have a difficult time seeing what current piece of league operations the players will be able to establish as an antitrust violation. Perhaps they go after the draft? Restricted free agency? The cap? Either way none of these are near as restrictive as the NFL's right of first refusal rule.

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11-29-2012, 08:44 AM
  #803
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Against my better judgment, I was hoping the personal stuff was limited to knucklehead fans ("Bettman is treating the PA like children!!!!") and a couple of idiot players. I was hoping this poisonous atmosphere would somehow be kept out of the negotiating room. No such luck I guess, and the mediation only enhances how deep into the sewer this thing is getting.

I hope that the mediator, above all, can get this thing into the proper scope. Get them to realize that theyre negotiating to divide up billions of dollars for playing the game of hcokey, not trying to achieve world peace.

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11-29-2012, 09:27 AM
  #804
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Originally Posted by HatTrick Swayze View Post
When the NFL decertified in 1989 it was not settled in court until 1992 and there was not a new CBA until 1993. How did they continue to play without a CBA?
I don't know for sure but basically without a union teams would have to negotiate with individual players and there could not be any restrictions on the contracts signed, and you wouldn't need a CBA to sign players in that fashion.

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I am by no means a lawyer, but I have a difficult time seeing what current piece of league operations the players will be able to establish as an antitrust violation. Perhaps they go after the draft? Restricted free agency? The cap? Either way none of these are near as restrictive as the NFL's right of first refusal rule.
The hard cap is a anti trust violation I imagine. It's basically legal collusion specifically designed to keep player salaries down. Any situation where the owners have basically agreed with each other to a system that creates some rules on how teams are allowed to offer contracts to players could be considered collusion and an anti trust violation if there isn't a union on the other end of things that keeps it "legal"

I'm not a lawyer either but some people have been itching for a pro sports league to follow this through to its end at some point because it would really bust the whole structure of sports contracts wide open. It would be...interesting.

edit: Basically if it was a real threat and it looked like the players had a case they could win, it would scare the NHL completely ****less and basically every other pro sports league in the US would be flipping out. The owners would lose basically every bit of bargaining power they have in that case. But it's not something quick or easy to do and would be expensive as all hell for the players, they wouldn't get to play in the NHL during that whole process, etc. It's basically an option that ****s everyone over pretty good but in theory could shift the balance of power to the players who could then craft a CBA that is more favorable to them and gives them more power going forward.


Last edited by Levitate: 11-29-2012 at 09:32 AM.
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11-29-2012, 09:58 AM
  #805
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Originally Posted by Levitate View Post
I don't know for sure but basically without a union teams would have to negotiate with individual players and there could not be any restrictions on the contracts signed, and you wouldn't need a CBA to sign players in that fashion.



The hard cap is a anti trust violation I imagine. It's basically legal collusion specifically designed to keep player salaries down. Any situation where the owners have basically agreed with each other to a system that creates some rules on how teams are allowed to offer contracts to players could be considered collusion and an anti trust violation if there isn't a union on the other end of things that keeps it "legal"

I'm not a lawyer either but some people have been itching for a pro sports league to follow this through to its end at some point because it would really bust the whole structure of sports contracts wide open. It would be...interesting.

edit: Basically if it was a real threat and it looked like the players had a case they could win, it would scare the NHL completely ****less and basically every other pro sports league in the US would be flipping out. The owners would lose basically every bit of bargaining power they have in that case. But it's not something quick or easy to do and would be expensive as all hell for the players, they wouldn't get to play in the NHL during that whole process, etc. It's basically an option that ****s everyone over pretty good but in theory could shift the balance of power to the players who could then craft a CBA that is more favorable to them and gives them more power going forward.
I'm not a lawyer either but it seems to me once the union decerts the league no longer has an anti trust exemption. The owners can collude on salaries (the players are free to play anywhere) to their hearts content and decide unilaterally on any other issues they deem necessary. The risk to the owners is obvious but the risks to the players is more than just losing a couple years pay.

If the union decerts there is no CBA.

The owners know that decert is an option. They are currently negotiating understanding the possibility exists.

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11-29-2012, 10:01 AM
  #806
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Originally Posted by ltrangerfan View Post
I'm not a lawyer either but it seems to me once the union decerts the league no longer has an anti trust exemption. If true, the owners can collude on salaries (the players are free to play anywhere) to their hearts content and decide unilaterally on any other issues they deem necessary. The risk to the owners is obvious but the risks to the players is more than just losing a couple years pay.

If the union decerts there is no CBA.

The owners know that decert is an option. They are currently negotiating understanding the possibility exists.
Sports unions and cbas give businesses the monopoly and collusion exemption. Competing companies cannot set industry wide salaries.

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11-29-2012, 10:06 AM
  #807
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Originally Posted by DutchShamrock View Post
Sports unions and cbas give businesses the monopoly and collusion exemption. Competing companies cannot set industry wide salaries.
I'm confused... since a union exists can the NHL collude?

or

If the union decerts ..(and doesn't exist) . can the NHL collude?

If the PA decrts the players can play for any league competing with the NHL. There would be no anti trust exemption.

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11-29-2012, 10:09 AM
  #808
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Originally Posted by DutchShamrock View Post
Sports unions and cbas give businesses the monopoly and collusion exemption. Competing companies cannot set industry wide salaries.
Absolutely true.

They also ensure 30 x 20 = 600 jobs that pay membership (including 3rd and 4th liners) very,very, very well for playing a game. The true downside from the players point of view is that decertification would lead to about 100 jobs that pay absolutely insane salaries for the top players, another 100-200 that don't pay nearly so well for the good players and about another 300-400 jobs that would just go poof.

There's a reason that every major sport in the U.S. operates under the current structure. It's better for everyone involved.

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11-29-2012, 10:10 AM
  #809
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Quote:
Originally Posted by ltrangerfan View Post
I'm confused... since a union exists can the NHL collude?

or

If the union decerts ..(and doesn't exist) . can the NHL collude?

If the PA decrts the players can play for any league competing with the NHL. There would be no anti trust exemption.
Collusion is always illegal.

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11-29-2012, 10:12 AM
  #810
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Quote:
Originally Posted by ltrangerfan View Post
I'm confused... since a union exists can the NHL collude?

or

If the union decerts ..(and doesn't exist) . can the NHL collude?

If the PA decrts the players can play for any league competing with the NHL. There would be no anti trust exemption.
The existence of the Union makes the NHL exempt from antitrust legislation. By collectively bargaining through a Union the players have agree to the conditions that would typically be considered collusion.


I have heard mixed reports on if current contracts would be covered via contract law or if there would be a truly free market immediately. I would assume the former.

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11-29-2012, 10:13 AM
  #811
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Originally Posted by BrooklynRangersFan View Post
Collusion is always illegal.
Thank you.

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11-29-2012, 10:15 AM
  #812
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Originally Posted by HatTrick Swayze View Post
The existence of the Union makes the NHL exempt from antitrust legislation. By collectively bargaining through a Union the players have agree to the conditions that would typically be considered collusion.


I have heard mixed reports on if current contracts would be covered via contract law or if there would be a truly free market immediately. I would assume the former.
Understood.

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11-29-2012, 10:18 AM
  #813
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Absolutely true.

They also ensure 30 x 20 = 600 jobs that pay membership (including 3rd and 4th liners) very,very, very well for playing a game. The true downside from the players point of view is that decertification would lead to about 100 jobs that pay absolutely insane salaries for the top players, another 100-200 that don't pay nearly so well for the good players and about another 300-400 jobs that would just go poof.

There's a reason that every major sport in the U.S. operates under the current structure. It's better for everyone involved.
This what I hope the PA gets. A true free market would result in an extreme salary imbalance between the elite players and the scrubs. It will also cause major on ice competitive balance issues. There would be a lot of Miami Marlins out there. It may also lead to some teams folding because they can't keep up with the spending and still ice a competitive team. Which would lead to lost PA opportunities.

I think the decertification threat is an excellent bargaining move by the PA. I hope it doesn't get to that point, and that cooler heads prevail (ha). I also hope that the players are being advised on potential long term consequences and are not being led off a cliff by Fehr in the name of pursuing an ideal.

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11-29-2012, 10:44 AM
  #814
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Ready for some labour? Next Wednesday is a huge day with the NHL board of governors meeting in New York City. Will commissioner Gary Bettman reserve the most important part of the get-together for the highest levels only? Each team has one governor and at least two alternates with one exception -- the Phoenix Coyotes, who only have the latter. In at least one meeting during the last lockout, there was a point where Bettman told all the alternates to leave, so only the true decision-maker for each franchise would be in there with him.
That will be James "I want us to play hockey" Dolan

Quote:
A number of reports criticised the NHLPA for waiting so long to consider decertification because it takes time. That's true, it can take 45-60 days because a formal vote must happen through the National Labour Relations Board, but there is a slightly different process to be aware of. It's called "Disclaiming." Basically, it means NHLPA executive director Donald Fehr can say he no longer represents the players in collective bargaining. Barring a breakthrough in mediation, it's expected the NHLPA will begin moving in that direction very shortly. It can take effect immediately. It's what the NBA did days before reaching a settlement last November.
Lets go. Union gets put back together when a deal is reached.

http://www.cbc.ca/sports/hockey/opin...n-sigalet.html

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11-29-2012, 10:47 AM
  #815
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Originally Posted by BrooklynRangersFan View Post
Absolutely true.

They also ensure 30 x 20 = 600 jobs that pay membership (including 3rd and 4th liners) very,very, very well for playing a game. The true downside from the players point of view is that decertification would lead to about 100 jobs that pay absolutely insane salaries for the top players, another 100-200 that don't pay nearly so well for the good players and about another 300-400 jobs that would just go poof.

There's a reason that every major sport in the U.S. operates under the current structure. It's better for everyone involved.
Yup, this is also why if the NHLPA decertified, it would also reform before playing again.They also lose pensions, insurance stuff, guaranteed salaries (like you mentioned) etc. Hell, even guaranteed contracts...teams could easily have contracts they could terminate at any time, but players could also easily have contracts that paid them all their money up front.

Neither side really wants decertification and the whole process and where it would lead if a court case went through, but it's a bargaining tool if the players feel like they have nothing else to lose in the process

edit: it may be a fluff piece but if anyone read the article in the Washington Post about Fehr's time as head of the MLBPA, then it definitely doesn't paint him as the kind of guy who deliberately misleads the players and operates on ego and win at all odds.

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11-29-2012, 11:02 AM
  #816
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This is part of the letter Billy Hunter sent to the NBA players after disclaiming last November

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Today, by unanimous vote of the executive committee and player representatives, the National Basketball Players Association disclaimed its status as your collective bargaining representative. As a result, we will now function as a trade association to assist and support NBA players, but we will no longer engage in collective bargaining with the NBA owners. The Players Association will instead dedicate itself to supporting individual NBA players in the assertion of your non-labor rights to be free of any illegal restrictions on competition for your services.

For two and a half years and through more than 50 collective bargaining sessions, we sat at the table and attempted to negotiate a fair labor agreement with the owners. Last week, with the issuance of yet another ultimatum - a take it or leave it final offer of a long-term agreement with unacceptable terms - Commissioner Stern and the owners left us with no other option. It has become clear to us that we have exhausted our rights under the labor laws, and continuing in that forum would not be in the best interests of the players.
Read More: http://sportsillustrated.cnn.com/201...#ixzz2DdFbFZzg

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11-29-2012, 11:04 AM
  #817
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Originally Posted by HatTrick Swayze View Post
This what I hope the PA gets. A true free market would result in an extreme salary imbalance between the elite players and the scrubs. It will also cause major on ice competitive balance issues. There would be a lot of Miami Marlins out there. It may also lead to some teams folding because they can't keep up with the spending and still ice a competitive team. Which would lead to lost PA opportunities.

I think the decertification threat is an excellent bargaining move by the PA. I hope it doesn't get to that point, and that cooler heads prevail (ha). I also hope that the players are being advised on potential long term consequences and are not being led off a cliff by Fehr in the name of pursuing an ideal.
From a player's standpoint, I can't see the sense in decertification.

For the Crosbys (barf) and the Stamkos of the world, I get it. But there are FAR more dime-a-dozen players in the league that would be at risk of losing their jobs permanently.

Wouldn't the majority win-out? Why wouldn't they vote or push against decertification?

For the owners, decertification probably would eventually lead to league contraction. Which, obviously, the league does not want. But, IMO, could help fix some of the league's issues.

RECORD revenues. The league grew from approximately a 1 billion dollar industry to a 3 billion dollar industry in less than a decade. 2 BILLION DOLLAR GROWTH IN LESS THAN A DECADE. And these morons are flushing it down the toilet. Congrats!

I'll take this moment to take a pot shot at Hockey Canada and the CHL. This mentality stems from the CHL. Where prepubescent teenagers are treated like professional athletes. Give them inflated sense of self worth. Give them money (they claim they don't but that's bull ****), free housing, and a rent-a-family. Farming off of the US development programs at lower levels. Buying NCAA recruits.

Hey Canada, the sport that you claim is yours, you destroyed it at the grass roots level. Treat your kids like professional athletes, rather than the amateurs that they are, and you wonder why a league and a union with a majority of players from your country are helping to destroy the league. It's a mentality you grow from the lower levels. Good job.

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11-29-2012, 11:19 AM
  #818
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Originally Posted by SupersonicMonkey View Post

RECORD revenues. The league grew from approximately a 1 billion dollar industry to a 3 billion dollar industry in less than a decade. 2 BILLION DOLLAR GROWTH IN LESS THAN A DECADE. And these morons are flushing it down the toilet. Congrats!
[/COLOR][/SIZE]
Forbes recently reported that the top 3 revenue producing teams are responsible for almost 90% of NHL profits over the course of the lockout.

Your post sympathizes with the dime a dozen players of the league, but doesnt sympathize with the dime a dozen franchises, which is what this lockout is really all about.

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11-29-2012, 11:31 AM
  #819
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The teams that would be most affected by decertification are the same teams that are part of the bloc responsible for this lockout...

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11-29-2012, 11:43 AM
  #820
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Yup, this is also why if the NHLPA decertified, it would also reform before playing again.They also lose pensions, insurance stuff, guaranteed salaries (like you mentioned) etc. Hell, even guaranteed contracts...teams could easily have contracts they could terminate at any time, but players could also easily have contracts that paid them all their money up front.

Neither side really wants decertification and the whole process and where it would lead if a court case went through, but it's a bargaining tool if the players feel like they have nothing else to lose in the process

edit: it may be a fluff piece but if anyone read the article in the Washington Post about Fehr's time as head of the MLBPA, then it definitely doesn't paint him as the kind of guy who deliberately misleads the players and operates on ego and win at all odds.
I don't really understand this. Whats the point of decertifying just to reform? What leverage do they get from that? Seems like it'd waste a ton of time and then they'd reform and we'd still be right where we are right now. I think I'm missing something, which wouldn't surprise me because this decertification talk confuses me to no end. The players don't want to take the lumps the owners are proposing so instead they're going to voluntarily throw away every single right they have?

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11-29-2012, 11:48 AM
  #821
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I don't really understand this. Whats the point of decertifying just to reform? What leverage do they get from that? Seems like it'd waste a ton of time and then they'd reform and we'd still be right where we are right now. I think I'm missing something, which wouldn't surprise me because this decertification talk confuses me to no end. The players don't want to take the lumps the owners are proposing so instead they're going to voluntarily throw away every single right they have?
It's about leverage. Decertification threatens the actual existence of low revenue teams through opening up the NHL to a true free market system (impossible to afford it for those teams I'm talking about). It also opens up the NHL to anti-trust litigation that they would surely lose without the existence of the union.

The union would reform, but only after the ownership made concessions and those concessions would be better for the league than operating without the partnership of a union.

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11-29-2012, 11:51 AM
  #822
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Originally Posted by Tawnos View Post
It's about leverage. Decertification threatens the actual existence of low revenue teams through opening up the NHL to a true free market system (impossible to afford it for those teams I'm talking about). It also opens up the NHL to anti-trust litigation that they would surely lose without the existence of the union.

The union would reform, but only after the ownership made concessions.
Thanks for the information. I'm still a bit confused though, doesn't threatening the existence of low-revenue teams also threaten a lot of high-paying jobs with guaranteed contracts and high minimum salaries for players?

What type of anti-trust lawsuits are we talking about? Is there a link that explains this sort of stuff somewhere? It's all way outside of my field of knowledge.

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11-29-2012, 11:57 AM
  #823
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Thanks for the information. I'm still a bit confused though, doesn't threatening the existence of low-revenue teams also threaten a lot of high-paying jobs with guaranteed contracts and high minimum salaries for players?

What type of anti-trust lawsuits are we talking about? Is there a link that explains this sort of stuff somewhere? It's all way outside of my field of knowledge.
I'm not saying that decertification is without it's risks. A free market system wouldn't have all contracts being guaranteed either. If the NHL does decide that no union and contraction are the best course of action, it will hurt the players for sure. Some of the pay issue is mitigated compared to past lockouts because of the existence of the KHL and willingness of other European leagues to bring in North Americans.

The whole cap system is only okay because the union agrees to a system of salary and contract controls, which exempts the league from anti-trust violations. Without the union or the CBA, it opens them up to that kind of case. I'm sure there are other issues too.

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11-29-2012, 12:00 PM
  #824
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Originally Posted by Bleed Ranger Blue View Post
Against my better judgment, I was hoping the personal stuff was limited to knucklehead fans ("Bettman is treating the PA like children!!!!") and a couple of idiot players. I was hoping this poisonous atmosphere would somehow be kept out of the negotiating room.
So the personal stuff only comes from fans and players. Sure.

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11-29-2012, 12:04 PM
  #825
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Thanks for the information. I'm still a bit confused though, doesn't threatening the existence of low-revenue teams also threaten a lot of high-paying jobs with guaranteed contracts and high minimum salaries for players?
Yes it does, which is why it's not a go-to option. It has downsides for the players as well, and is lengthy and expensive.

Quote:
What type of anti-trust lawsuits are we talking about? Is there a link that explains this sort of stuff somewhere? It's all way outside of my field of knowledge.
Without a union, the cap would be illegal. Any restrictions on contracts would be illegal. Entry level players could be signed to 20 year contracts worth hundreds of millions of dollars (or for conditional contracts worth a pittance). Basically every restriction on contracts that the CBA imposes would be illegal if the union decertifies (though it would take a court case to make that official reality).

That's my basic understanding of it. The NHL as an entity can't constrain the rights of individuals to bargain for their contracts if there isn't a union in place.

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