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Decertification Pros and Cons

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Old
10-28-2012, 07:30 PM
  #1
Laus Deo
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Decertification Pros and Cons

This looks like the only choice left to the players since the last offer was not acceptable and there is no other offer on the the table.

Really what is the point of waiting until next season and hoping for a more benevolent owner outlook? Not happening.

Seriously. What would decertification look like? I haven't really thought too much about it but as time goes on I can't think of any other way to save the season.

Pros for players
Current contracts would be honoured in full.
No more restricted years. Good for the better players.

Cons for players
Any new contracts would not have any minimum salary.

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10-28-2012, 07:49 PM
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thinkwild
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Owners would have no collectively bargained salary restraints that allow them to save them from themselves. They would be left to their own superior business acumen, one on one with an agent to negotiate a salary for a player with no limiting guidelines other than what they are willing to pay.

Obviously this will be good for the sought after players. For the bottom 20% that churn through the league each year, they would likely be on on 1 yr or 2 way contracts probably many less than the current salary minimum too.

But Crosby's real value to the Pens, well that would be interesting to find out.

If there are replacement players and the non millionaires start crossing the line as replacement players, what percentage of the nhl players would be offended enough to vote to decertify i wonder.

Its better for the bottom players if there is a union. It seems hard to argue that it wouldnt be better for the owners if there is a union since that is the only way they can legally get all these things like drafts, salary caps, and restrictive free agency that fans find good for the game and parity. I guess the only ones losing out on potential money due to the union are the best most elite players. The ones many are now calling greedy.

Its a hard question to determine - if there was no union and there was a normal law abiding market place like the rest of the continent, what percentage of revenues would likely be spent on salaries?

Whatever that number is - that is the only way i can think of deciding what is fair. And presumably that number is more than they are being paid now after all thre salary restricting mechanisms of collective bargaining have taken hold.

At what point is enough enough? Are we getting close? Why do owners always sue unions when they do decertify to try and prevent it?

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10-28-2012, 08:01 PM
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Erik Estrada
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Quote:
Originally Posted by thinkwild View Post
...

Whatever that number is - that is the only way i can think of deciding what is fair. And presumably that number is more than they are being paid now after all thre salary restricting mechanisms of collective bargaining have taken hold.

At what point is enough enough? Are we getting close? Why do owners always sue unions when they do decertify to try and prevent it?
From what I read related to the NBA and NFL lockouts of 2011... Because there's a paradigm shift. The applicable law shifts from labor law to antitrust law. The sports leagues (NBA, NFL...) don't want to be forced to defend their corporate practices in light of the Sherman Antitrust Act.

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10-28-2012, 08:11 PM
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Originally Posted by Laus Deo View Post
This looks like the only choice left to the players since the last offer was not acceptable and there is no other offer on the the table.

Really what is the point of waiting until next season and hoping for a more benevolent owner outlook? Not happening.

Seriously. What would decertification look like? I haven't really thought too much about it but as time goes on I can't think of any other way to save the season.

Pros for players
Current contracts would be honoured in full.
No more restricted years. Good for the better players.

Cons for players
Any new contracts would not have any minimum salary.
Pro: no more draft

Con: 1/2 the teams would fold without draft talent as talent would flock to big markets or geographically local teams

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10-28-2012, 10:55 PM
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The good thing for NHL owners if there was a decertification is that the game of hockey is played in many countries so there is no shortage of good hockey players. After that you just need to fill a team with a few elite and solid players.

Teams would no longer need to reveal what any player makes in the game so they don't have to compare pay rates. At the same time teams could try doing long term deals with a player they think has a lot of high end. Why not try to sign a Player from a Euro country to a $1.5 mill / yr contract for 10 years and if it works out you have a great deal.

It would return back to a time where owners could pretty much do whatever they wanted with players and they could get away with it. If people didn't fear change it may even save the owners money if they did this.

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10-28-2012, 10:59 PM
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Originally Posted by Erik Estrada View Post
From what I read related to the NBA and NFL lockouts of 2011... Because there's a paradigm shift. The applicable law shifts from labor law to antitrust law. The sports leagues (NBA, NFL...) don't want to be forced to defend their corporate practices in light of the Sherman Antitrust Act.
I've read that the courts would dismiss the decertification as a negotiation tactic, it's only done to get leverage in negotiations and drags the negotiations into the court room which isn't really what decertification is meant for.

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10-28-2012, 11:06 PM
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No that's exactly what decertification is meant for.

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10-29-2012, 03:54 AM
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Originally Posted by thinkwild View Post
No that's exactly what decertification is meant for.
If it will be blocked by the courts like the previous poster said other what recourse is there? Seems like accept now, later or never are the only other options.

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10-29-2012, 06:43 AM
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I've read that the courts would dismiss the decertification as a negotiation tactic, it's only done to get leverage in negotiations and drags the negotiations into the court room which isn't really what decertification is meant for.
1-I know in the NFL and NBA the PA successfully decertified. But if a League can fight it, it will.
2-Then if a PA decertifies, the League will argue in Court that the Sherman Antitrust Act doesn't apply to their sport.
3-Then the League will argue that they respected the Sherman Antitrust Act.


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10-29-2012, 06:44 AM
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Originally Posted by Laus Deo View Post
Current contracts would be honoured in full.

Would they? Current contracts are controlled by the provisions in the CBA. with that expired what happens? Do those points become null and void? If so, does the guarantee exist within the player contract or CBA, because if its in the CBA and that becomes invalid .....

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10-29-2012, 07:21 AM
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Since restrictions on competition are placed within a CBA, the League is protected from antitrust claims. Because the CBA is still in effect during a lockout, the League is still insulated from lawsuit.

However, if the Union decertifies it essentially kills itself and the CBA no longer applies. This makes sense because the CBA is an agreement between the Union and the League, and if the Union no longer exists, the CBA can't apply.

When the CBA no longer applies, the players can sue the League for antitrust violations.

What does this mean for the League and the players?

To the benefit of the players, the League might have a tough time defending itself in court. After the 1987 strike, the NFLPA decertified and four NFL players sued the NFL for anticompetitive practices. The court ruled in favor of the four players and monetary damages were awarded. The NFL quickly settled once it became a class-action lawsuit.

The pocket money is nice but the real benefit to the players would be that the League's exposure to antitrust lawsuit would give the players more leverage at the CBA negotiating table.

Of course the anticompetitive lawsuits are not indefensible. The NHL could argue that the collective bargaining relationship still exists between the League and the players and the decertification is merely an act of posturing. So while the players have decertified, they're still acting as a group behind the scenes.

The League could also argue that while there are trade restrictions in place, it's necessary for the survival of the League. They could argue that restrictions like the Salary Cap actually encourage competition (read: parity) instead of discourage it. They'll have a tougher time convincing the court that things like RFA encourage competition though.

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10-29-2012, 07:41 AM
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Owners would have no collectively bargained salary restraints that allow them to save them from themselves. They would be left to their own superior business acumen, one on one with an agent to negotiate a salary for a player with no limiting guidelines other than what they are willing to pay.

Obviously this will be good for the sought after players. For the bottom 20% that churn through the league each year, they would likely be on on 1 yr or 2 way contracts probably many less than the current salary minimum too.

But Crosby's real value to the Pens, well that would be interesting to find out.

If there are replacement players and the non millionaires start crossing the line as replacement players, what percentage of the nhl players would be offended enough to vote to decertify i wonder.

Its better for the bottom players if there is a union. It seems hard to argue that it wouldnt be better for the owners if there is a union since that is the only way they can legally get all these things like drafts, salary caps, and restrictive free agency that fans find good for the game and parity. I guess the only ones losing out on potential money due to the union are the best most elite players. The ones many are now calling greedy.

Its a hard question to determine - if there was no union and there was a normal law abiding market place like the rest of the continent, what percentage of revenues would likely be spent on salaries?

Whatever that number is - that is the only way i can think of deciding what is fair. And presumably that number is more than they are being paid now after all thre salary restricting mechanisms of collective bargaining have taken hold.

At what point is enough enough? Are we getting close? Why do owners always sue unions when they do decertify to try and prevent it?
I'd go a little further and say it would be far more than the bottom 20% of the players who would be worse off.

The first thing that would go would be guaranteed contracts, and I would bet we would see a lot more two way deal. In addition, I would expect that the salaries of top players might go up a fair bit but would not be surprised to se the median salary drop a lot.

In 2003-2004 Colorado had a salary budget of $63M+ with three players making over $9M per. Yet their median salary was $750K. Last year they spent a little over $40M on salaries but had a median salalry of $1.35M.

Detroit had a salary budget of $78M with a median salary of $1.5M in 2003-2004. Last year they spent about $64M with a median salary of $3M.

The current CBA has been a huge win for the vast majority of players in the NHL.

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10-29-2012, 08:22 AM
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When the CBA no longer applies, the players can sue the League for antitrust violations.
They can sue, if and only if, the league attempts to keep the same structure and rules in place. And of course they can sue to end the lockout if the NHL does not agree to drop it.

The league could restructure itself to avoid anti trust rules. It would not be the NHL as we know it, but the same goes for the players and I'm sure they would not like the outcome. No one would. Thats why these leagues effectively have an anti trust pass, because their business model is unique enough to require it to operate as they do.


Its a very risky play for the players. it will end the lockout, but it throws many rules out the window. With no CBA players can be treated liek your average everyday employee they want to compare themselves too, somehow I think it would be a big taste of humble pie for many of them.

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10-29-2012, 08:32 AM
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NFL had a judge temporarily rule the lockout illegal however a few days the league successfully fought it and reinstated the lockout.

There's no guarantees, and this would pretty much make the entire negotiation more hostile.

Fehr keeps hinting that there's actions the players are considering if things go south, that may be what he's hinting at.

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10-29-2012, 08:59 AM
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It the only nuke in the PA arsenal and since the NHL already went to Defcon 1 ready to push the button on the season. It a sure bet they will decertify if the NHL try to open camp next September with no CBA in place. The alternative is a player strike that should not be ruled out. The thing about nukes is that they usually leave nasty stuff behind. As for the court siding with the NHL it one risky case to put in front of a US judge! The NFL and NBA might get preferential treatment because they are major US sports but the court might just throw the book at the NHL just to make an example. Because it a safer decision to make a US judge won't get much angst over screwing over the NHL the way they would for the NBA and NFL.


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10-29-2012, 12:43 PM
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I'd go a little further and say it would be far more than the bottom 20% of the players who would be worse off.

The first thing that would go would be guaranteed contracts, and I would bet we would see a lot more two way deal. In addition, I would expect that the salaries of top players might go up a fair bit but would not be surprised to se the median salary drop a lot.

In 2003-2004 Colorado had a salary budget of $63M+ with three players making over $9M per. Yet their median salary was $750K. Last year they spent a little over $40M on salaries but had a median salalry of $1.35M.

Detroit had a salary budget of $78M with a median salary of $1.5M in 2003-2004. Last year they spent about $64M with a median salary of $3M.

The current CBA has been a huge win for the vast majority of players in the NHL.
The last time I checked, the old 80:20 rule applied generally pre-2004, 80% of the money went to 20% of the players. That had gradually shifted to 70:30 3-4 yrs in. The middle and lower level players have done far better (than they should) at the expense of the elite players. Sure, those guys are still paid handsomely, but they're trading off real dollars for risk reduction (the lifetime contract). Moreover, with more elite players locked up to longer term deals in an environment where the cap range rises each year-- that money must be spent. So teams 'overpay' the mid and lower levels, as generally they're more readily available.

The inflationary aspects of this system cannot be overlooked.


Quote:
Originally Posted by Iggy77 View Post
NFL had a judge temporarily rule the lockout illegal however a few days the league successfully fought it and reinstated the lockout.

There's no guarantees, and this would pretty much make the entire negotiation more hostile.

Fehr keeps hinting that there's actions the players are considering if things go south, that may be what he's hinting at.
A PA has the right to decertify. I think what judges have ruled against is decertification during ongoing negotiations. I don't know the actual legal points but I believe it's more about when they choose this path, not that they are somehow legally prohibited from ever doing it. One guess would be that they'd have to go through some steps to show there's an impasse.

Make no mistake about it, the existence of unions under the capped system benefits owners far more than players. As Tom Benjamin once asked, who benefits more from this system, Bettman/Pens or Crosby?

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10-29-2012, 01:28 PM
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A PA has the right to decertify. I think what judges have ruled against is decertification during ongoing negotiations. I don't know the actual legal points but I believe it's more about when they choose this path, not that they are somehow legally prohibited from ever doing it. One guess would be that they'd have to go through some steps to show there's an impasse.
During the 2011 NFL lockout, the NFLPA decertified. The NFL Players then attempted to stop the lockout. They won initially then the Circuit Court reversed it on certain aspects. Circuit Court said:
-A judge could only stop the lockout in case of Free Agents and Rookies.
-A judge could judge on the merits of the case (award damages).

The NFL Players never pursued the case on the merits because they had almost already finalized their negotiations on the new CBA when the judgment came down.

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10-29-2012, 01:56 PM
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As Tom Benjamin once asked, who benefits more from this system, Bettman/Pens or Crosby?

Thats pretty easy. Crosby. He made more than the other two combined.

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10-29-2012, 02:17 PM
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Thats pretty easy. Crosby. He made more than the other two combined.

He made far less than a free market would have given him.

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10-29-2012, 02:18 PM
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Quote:
Originally Posted by Fugu View Post
A PA has the right to decertify. I think what judges have ruled against is decertification during ongoing negotiations. I don't know the actual legal points but I believe it's more about when they choose this path, not that they are somehow legally prohibited from ever doing it. One guess would be that they'd have to go through some steps to show there's an impasse.

Make no mistake about it, the existence of unions under the capped system benefits owners far more than players. As Tom Benjamin once asked, who benefits more from this system, Bettman/Pens or Crosby?
I may be wrong but I believe the issue from the league standpoint was that the NFL PA decertification was merely a tactic to put pressure on the owners to sign a CBA before anti-trust suits were filed.

Basically the complaint was that the decertification wasn't based on the players no longer wanting to be represented by a union (which they have every right to decide) but rather based on a tactic to put negotiating pressure on the owners via anti-trust lawsuits.

I don't think the courts or the NLRB ever ruled on it as the suits and appeals were dismissed when the CBA was settled but as best I could tell the idea was "If you want to decertify, go for it, but you can't say you're decertified just to file suits but behave everywhere else like you're still a union, you have to pick one or the other"

Again, that might be completely wrong, but that's the way I understood it in the news.

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10-29-2012, 02:21 PM
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I may be wrong but I believe the issue from the league standpoint was that the NFL PA decertification was merely a tactic to put pressure on the owners to sign a CBA before anti-trust suits were filed.

Basically the complaint was that the decertification wasn't based on the players no longer wanting to be represented by a union (which they have every right to decide) but rather based on a tactic to put negotiating pressure on the owners via anti-trust lawsuits.

I don't think the courts or the NLRB ever ruled on it as the suits and appeals were dismissed when the CBA was settled but as best I could tell the idea was "If you want to decertify, go for it, but you can't say you're decertified just to file suits but behave everywhere else like you're still a union, you have to pick one or the other"

Again, that might be completely wrong, but that's the way I understood it in the news.

This may be accurate. I too recall that the point became moot as they'd managed to work out an agreement after all.

Where are our 'in-house' lawyers when we need them?

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10-29-2012, 02:22 PM
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He made far less than a free market would have given him.
Very true. I've said that all along.

But how about the bottom 50% of the league? They would make out worse. Perhaps a lot worse.

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10-29-2012, 02:30 PM
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Very true. I've said that all along.

But how about the bottom 50% of the league? They would make out worse. Perhaps a lot worse.
Why is it that people have no problem with the top players sharing their (potential) salary with the bottom half, but it seems the same people balk when the idea of a substantial revenue sharing program is discussed?

After all, the logic behind a CBA and salary cap is it's good for the league as a whole. Meanwhile a strong revenue sharing program would also be good for the league as we could end this whole mess right now if the owners were to step up to the plate and get it done.

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10-29-2012, 03:00 PM
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Why is it that people have no problem with the top players sharing their (potential) salary with the bottom half, but it seems the same people balk when the idea of a substantial revenue sharing program is discussed?

After all, the logic behind a CBA and salary cap is it's good for the league as a whole. Meanwhile a strong revenue sharing program would also be good for the league as we could end this whole mess right now if the owners were to step up to the plate and get it done.
Because there are just not enough dollars for revenue sharing to fix all the problems. Even the staunch supporters of the owners want more RS, but they realize there is only so much you can do.

Even a progressive revenue sharing program such as the NBA's would effectively take 90% of its funding from 3 teams, and not distribute enough to the low end teams to put them where they need to be.

The owners realize this they have made concessions on the RS side. It was in their original proposal.

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10-29-2012, 05:02 PM
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The last time I checked, the old 80:20 rule applied generally pre-2004, 80% of the money went to 20% of the players. That had gradually shifted to 70:30 3-4 yrs in. The middle and lower level players have done far better (than they should) at the expense of the elite players. Sure, those guys are still paid handsomely, but they're trading off real dollars for risk reduction (the lifetime contract). Moreover, with more elite players locked up to longer term deals in an environment where the cap range rises each year-- that money must be spent. So teams 'overpay' the mid and lower levels, as generally they're more readily available.

The inflationary aspects of this system cannot be overlooked.
Agreed on all accounts.

When I listen to some of the lesser players speak it reminds me of some of what I heard from "Joe the Plumber" before the last election. He talked about being completely opposed to increasing the tax on individuals earning over $250K. At the time I got the sense that his position was not simply becasue he had some deep felt philosophical aversion to taxes, (which he may or may not have, I don't know) but rather because someday when he earns more than $250K he did not want to have to pay the tax himself.

Now I see that old Joe is running for Congress and has turned his "15 minutes of fame" into a motivational speaking career. So maybe he is one of the few who actually did cross the magical barrier, but in the end I can't help feel that many people would ignore what might be in their own best interests because of some misplaced hope of winning a lottery.

In the cas of the dispute at hand, it is almost impossible for me to believe that the NHLPA has been able to get roughly 750 players to buy into the party line when in reality they are much more in competition amongst themselves for a limited pot of money than they are with the owners. I'll bet for example that the members of the PA would be 100% behind a return to the system that produced the 80:20 split even though the reality is that most players, even a significant majority, would end up being worse off than they would if they took the owners 50/50 offer and went on with things as they are. In particular, the fact that so many players are willing to throw away earnings that they will never recover for a "principle" that itself benefits so few is amazing to me.

As to the inflationary aspect of the current structure, I do agree that the issue of the money having to be spent has caused a fair bit of this. I still believe that had the cap range been indexed the League would have been better off. We could have at this point a cap range of $46-$78M with the same relative competetive balance as in the first year of this CBA. Dropping the share of HHR to 50/50 we might have a range of $40M-68M which should make life easier for the teams with less revenue.

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