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Mirtle: NHLPA’s hard-liners hint at decertification after latest offer rejected

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Old
11-22-2012, 10:17 PM
  #226
guyincognito
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Originally Posted by Egil View Post
If the Players decertify they won't be paying for meals and flights unless they had a true cheap skate owner. While those are currently contractually obligated in the CBA, those items are simply part of doing business, and would be covered. Maybe a few really terrible owners would skimp, but almost every team would keep the status quo.
Why should they have to pay for it if not contractually obligated? You'd be looking at something like pro wrestling where some guys get vastly better things than other guys.

If Crosby goes up to Mario and says he wants his own damn plane to fly him to games and Mario says yes, he gets that. If someone wants a car or they want to be fed at Ruth's Chris every night, and they get it, they get it.

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11-22-2012, 10:18 PM
  #227
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I would assume it's in the CBA, the players are not independent contractors and would not be negotiating such things in their contacts.

If they decertified? Well then they could negotiate that kind of stuff as independent contractors.
If the decertify, wouldn't the league only be bound to what's in the players contracts?

So I guess the league could say "Ok. Next game is in Los Angeles. See you on the ice" and just leave the players to fend for themselves.

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11-22-2012, 10:22 PM
  #228
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If they decertify, could the owners impose their CBA and invite players to form a new union with an understood 50-50 relationship? Is that on the up and up?
No, I believe the point to breaking the union would remove everything that controls spending etc.. ie Legally, the league can't limit the amount individual teams can spend.

As for the comments about 3/4th line players, I don't know that they would be paid less. Most teams/fans know these are the players that win cups and I think all salaries would be relative to on ice capabilities. I would assume, most teams stay in around the same in terms of spending with the big market teams trying to buy a cup throwing the competitive balance WAY off. That being said, I think it would put a bit of pressure to move the teams that are "losing" money.

I don't know it would be a horrible decision on the players part, they can request anything they like in a contract. Insurance, guaranteed deals, hotels etc... it's up to the teams to sign or decline on them - we all know the owners need saved from themselves so....

Would be a MESS for small market owners and kind of scary for the players as no one knows what that system looks like.

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11-22-2012, 10:24 PM
  #229
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Originally Posted by PensFanSince1989 View Post
Basically that they were never trying to get an actual deal done. NHL was working toward a deal. Simply because it's not a deal the NHLPA currently likes, doesn't make it in bad faith. It would be hard for either side to be proven at this point to be negotiating in bad faith.
It's hard for either side to claim they're negotiating in good faith really, since the owners have made by my count two real offers in six months (one the ridiculous 57-43 split, the other the 50-50 PR grab with contract limits and other stuff thrown in that the players would never accept), and the PA has made one real offer in six months.

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11-22-2012, 10:24 PM
  #230
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Intent seems to be the key word.

What else do you think is needed to demonstrate bad faith negotiation?
I believe the NHL current offer is better than the deal the players would have gotten if both sides had agreed to binding arbitration in the summer. This alone nullifies any claim that the NHL is negotiating in bad faith.

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11-22-2012, 10:26 PM
  #231
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Originally Posted by Disgruntled Observer View Post
If the decertify, wouldn't the league only be bound to what's in the players contracts?

So I guess the league could say "Ok. Next game is in Los Angeles. See you on the ice" and just leave the players to fend for themselves.
Well, if players show up late and they forfeit, that doesn't help things out.

But you could see some serious nickel and diming and class systems within the guys on the team. Maybe the big shot guy stays at the W and the scrubs end up at the Hampton Inn next door.

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11-22-2012, 10:41 PM
  #232
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There's a lot of speculation above and a lot of "what ifs"; I think a good summary would be that teams and individual players would be free to enter into agreements as they saw fit.

I don't imagine things would look too different from how they look now; we're not dealing with players in the 1930s nor are we dealing with employment/labour laws as they then existed (or didn't exist). Even a less than bright player would be bright enough to hire a lawyer to negotiate for them as it would be in there best interest.

The big down side for the players would certainly be the loss of some of the group benefits (e.g., pension).

The HUGE downside to the owners would be a complete loss of cost control measures.

Make no mistake about it, the NHL needs the union as much as the players need the NHL; which is humorous in a way...

There's also a certain sense of irony in the fact that the owners enjoy relatively unfettered capitalist ideals on the "making money" side, but want to fetter the players' ability to engage in similar transactions and, indeed, control their own costs and allow for the survival of their weaker brethren by negotiating with the union.

If the owners aren't careful, they may just kill the goose that lays the golden egg here.

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11-22-2012, 10:47 PM
  #233
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Originally Posted by PensFanSince1989 View Post
Basically that they were never trying to get an actual deal done. NHL was working toward a deal. Simply because it's not a deal the NHLPA currently likes, doesn't make it in bad faith. It would be hard for either side to be proven at this point to be negotiating in bad faith.
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I see it completely opposite in that only the PA has asked to give up something IF you use the old CBA as your starting point. It seems to be a natural starting point since it was the last legal agreement between the two parties.

However, I'm not a lawyer, so I don't know what the litmus test is legally.
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That wouldn't be how it works. There's nothing that says you have to give and take from the last CBA. The league can easily argue that it strongly feels that the last CBA put the league at financial peril, and that it thought it required these concessions in order to make the league more viable.

To say you are negotiating in bad faith means you are negotiating just for appearance, not actually trying to get a deal done. And that I think would be an extremely hard thing for someone to prove of the NHL. I actually think it'd be easier to show of the NHLPA than of the NHL right now. Basically, you'd have to show that there's some ulterior motive to the NHL's actions here, opposed to just trying to get the deal that they want done.
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Can I ask you if you're a lawyer who understands the litmus test courts require?

I've thrown this out as my own speculation with the qualifier that I'm not legally trained. I'm at least referring to some legalese another member posted upstream.

Is this your own interpretation of how you think the law works or how you know the law works?
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Originally Posted by PensFanSince1989 View Post
I'm not a practicing lawyer, but am trained as one. I'm not an expert on this field, but it is my understanding of 'negotiating in bad faith'.

Negotiating in bad faith is basically when you are just negotiating for appearances.

I don't see the NHL with an ulterior motive here and I don't see them negotiating for appearances. I think you can make a stronger case for the NHLPA than you can for the NHL. I guess the only thing you could say is if the NHL was actually trying to break the union opposed to actually make a deal, but I don't think that's whats going on.
Yup. AIUI, the NLRB has held that refusing to move off a negotiating point is not bad faith bargaining as long as that party is continuing negotiations with the intent of coming to an agreement - even if only an agreement on terms that the other side might find unacceptable.

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11-22-2012, 10:54 PM
  #234
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No, I believe the point to breaking the union would remove everything that controls spending etc.. ie Legally, the league can't limit the amount individual teams can spend.

As for the comments about 3/4th line players, I don't know that they would be paid less. Most teams/fans know these are the players that win cups and I think all salaries would be relative to on ice capabilities. I would assume, most teams stay in around the same in terms of spending with the big market teams trying to buy a cup throwing the competitive balance WAY off. That being said, I think it would put a bit of pressure to move the teams that are "losing" money.

I don't know it would be a horrible decision on the players part, they can request anything they like in a contract. Insurance, guaranteed deals, hotels etc... it's up to the teams to sign or decline on them - we all know the owners need saved from themselves so....

Would be a MESS for small market owners and kind of scary for the players as no one knows what that system looks like.
If I was a grinder or bottom pairing D, I'd be really worried about this option.

Decertification's almost like launching a bomb with a biological payload. It might kill your enemies. But if the wind's wrong, it might decimate your own armies worse.

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11-22-2012, 10:58 PM
  #235
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Originally Posted by kdb209 View Post
Yup. AIUI, the NLRB has held that refusing to move off a negotiating point is not bad faith bargaining as long as that party is continuing negotiations with the intent of coming to an agreement - even if only an agreement on terms that the other side might find unacceptable.

Seems pointless to having any rule on the matter then. You can show up to the room each day, say the proposal is still the same and sit and chat.

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11-22-2012, 10:59 PM
  #236
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I got a feeling there's a lot of powerful people in the sports world (owners/agents/lawyers) who would love to see the NHLPA decertify --- just to see how it plays out in a guinea pig league.

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11-22-2012, 11:00 PM
  #237
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I believe the NHL current offer is better than the deal the players would have gotten if both sides had agreed to binding arbitration in the summer. This alone nullifies any claim that the NHL is negotiating in bad faith.

This is an interesting way to frame it. Why would either side agree to binding arbitration? Why do you believe an arbiter would have given the PA a worse deal?

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11-22-2012, 11:01 PM
  #238
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The way I see it the players want the nhl to continue with a majority of the teams losing money. Their solution for the economic difficulties of those clubs is for the successful teams to ship money to the teams losing money. I have a hard time believing a reasonable court would find that to be fair and reasonable bargaining by the union and bad faith by the nhl owners whose majority are losing money or at least not getting any reasonable return on their investment. The fact that a contract was initially too union friendly or turned into that does not mean that the ownership is bargaining in bad faith when it ASKS FOR THE UNION TO ACCEPT LESS any more than if the reverse had occurred. Fehr has convinced the players that that is the case. As to decertification it will become clear that that route is nothing but nonsense--the league will end up with half the teams--ok that is good for northern fans-and hundreds of players will be leaving North America to pay for AHL wages in strange countries with limited benefits and little chance of endorsement money even from the local car agency or grocery store. It is true that the nhl made huge mistakes going into areas that cannot support nhl prices, cannot fill rinks, do not have local tv contracts etc. that enrich the coffers, etc. They got expansion fees but that money has long gone to pay for operating losses by other owners in those losing cities and by "revenue sharing" from the successful clubs. 10 teams shelling out 200 million a year for ten or fifteen years is hard to make up from expansion fees....In the meantime several hundred players got nhl big bucks they would not otherwise get--and they want to decertify! Spare me.......

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11-22-2012, 11:10 PM
  #239
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Well, if players show up late and they forfeit, that doesn't help things out.

But you could see some serious nickel and diming and class systems within the guys on the team. Maybe the big shot guy stays at the W and the scrubs end up at the Hampton Inn next door.
If the players make a habit of not showing up, then they can be fired. Just like anybody else in the world that has a contract.
Then the owners aren't obliged to the contracts anymore.

I admit this is all sillyness.
But so is decertification. It's the players essentially doing a low blow.
I'd imagine the owners would respond in kind with low blows.
Things would get ugly.

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11-22-2012, 11:17 PM
  #240
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Originally Posted by Disgruntled Observer View Post
If the players make a habit of not showing up, then they can be fired. Just like anybody else in the world that has a contract.
Then the owners aren't obliged to the contracts anymore.

I admit this is all sillyness.
But so is decertification. It's the players essentially doing a low blow.
I'd imagine the owners would respond in kind with low blows.
Things would get ugly.
No, I'm not sure that anything can be done to existing contracts. They would be enforced as they are. Which is another weird thing that makes me think this isn't actually a serious move.... the top end of the PA, most of them have lifetime/semi-lifetime contracts, they have nothing to gain from this.

And since wrestlers are the only independent contractors I can think of.... here's another sticky thing.... merchandise.

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11-22-2012, 11:21 PM
  #241
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Downside agreements. If you get hurt you don't reach your full earning potential on your contract. If you stay healthy and help the team win or make money, you get paid more. Maybe a % of gate.

Really if you're looking for an example of how this environment works, you'd look at the WWE. There's no reason to guinea pig it.

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11-22-2012, 11:35 PM
  #242
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I don't think the players have the balls to decertify. I certainly wouldn't. Too much of an unknown. While it would certainly be Hell on wheels for the owners, it would probably be that for a lot of players too. A few players would do fabulously well, but the farther down the food chain you go the worse it gets. In Ontario, the minimum salary would be $10.25/hour. Maybe less in Tennessee.

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11-22-2012, 11:50 PM
  #243
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I don't think the players have the balls to decertify. I certainly wouldn't. Too much of an unknown. While it would certainly be Hell on wheels for the owners, it would probably be that for a lot of players too. A few players would do fabulously well, but the farther down the food chain you go the worse it gets. In Ontario, the minimum salary would be $10.25/hour. Maybe less in Tennessee.

Then tell me this. Why wouldn't they just sign the NHL's October offer to get a full season in?

I've held all along that they're all in once the lockout starts taking a chunk out of the season, or they needed to have capitulated back in Sept/Oct. If they didn't think through decertifying (and I think they did since the two other PAs followed that path)... what's the point here?

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11-22-2012, 11:55 PM
  #244
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Then tell me this. Why wouldn't they just sign the NHL's October offer to get a full season in?

I've held all along that they're all in once the lockout starts taking a chunk out of the season, or they needed to have capitulated back in Sept/Oct. If they didn't think through decertifying (and I think they did since the two other PAs followed that path)... what's the point here?
There's a difference between thinking it through and using it as a means to an end.

Decertifying to actually attempt to nuke the system is a crazy, crazy Pandora's box. Doing it to make your opponent THINK you are willing to attempt to nuke the system.... not so crazy.

I would guess the majority of the PA have no idea what this entails, other than possibly forcing the owners to pull the plug on the lockout and honor the current contracts.

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11-23-2012, 12:09 AM
  #245
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Then tell me this. Why wouldn't they just sign the NHL's October offer to get a full season in?

I've held all along that they're all in once the lockout starts taking a chunk out of the season, or they needed to have capitulated back in Sept/Oct. If they didn't think through decertifying (and I think they did since the two other PAs followed that path)... what's the point here?
THis is what I wonder.

The players hired Fehr for a reason.
They didn't hire Fehr so they could replay 2006, and sit out for four months only to cave in again.

But what?
My question is, why do you need to decertify to go after the cap?

Why not just say, "We don't like the cap and any offer you make with a cap is rejected." and then stick to it?

Sports unions don't need to decertify to make unions work, They need to have the guts and fortitude to stick it out.

To me, decertification is likely to cause the PA more harm than good.

Thing is, so far, the PA has done nothing buy signify concessions.

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11-23-2012, 12:11 AM
  #246
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There's a difference between thinking it through and using it as a means to an end.

Decertifying to actually attempt to nuke the system is a crazy, crazy Pandora's box. Doing it to make your opponent THINK you are willing to attempt to nuke the system.... not so crazy.

I would guess the majority of the PA have no idea what this entails, other than possibly forcing the owners to pull the plug on the lockout and honor the current contracts.
My guess is the Fehr is making damn sure the players know what it is.

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11-23-2012, 12:12 AM
  #247
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This is an interesting way to frame it. Why would either side agree to binding arbitration? Why do you believe an arbiter would have given the PA a worse deal?
I do not think they would agree to it, notice that the PA did not mention mediation until they had on paper the owners agreeing to 50/50 and make whole. This is because the best they could hope for mediation would be 50/50 with no make whole. Any mediator would look at the current CBAs in the comparable leagues and the best of those deals is 50/50. I believe most would look at the NFL because it has the closest system and suggest a CBA starting at 50% and dropping to 48%. I have no idea what would happen on the contracting issues but I also have no idea why they matter to either side when the amount paid to the players will be the same.

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11-23-2012, 12:14 AM
  #248
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If they didn't think through decertifying (and I think they did since the two other PAs followed that path)... what's the point here?
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I would guess the majority of the PA have no idea what this entails,

You're both right, I think.

With the quiet inclusion of the 67.5 cap minimum and the stipulation that player's salaries couldn't decrease year-over-year in real dollars, Fehr was able to show to the PA a willingness to concede while knowing that it's still a delinked proposal hanging out in sheep's clothing.

The end game for Fehr, who came out of retirement for all of this, is to see what might happen and be part of it all.

This my not jibe with the needs and wants of a lot of his members, but they hired him and they'll have to live or die by his tactics.

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11-23-2012, 12:25 AM
  #249
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From this article, there's mention of a paper, which can be downloaded (I've added the link below), but the same theme comes up again:



It's an interesting debate-- who needs unions more in today's legal environment?

Link to the abstract. Click on the Download button to get a PDF copy:
http://papers.ssrn.com/sol3/papers.c...act_id=1978517

Most important thing I learned from the paper is that calling what the NFL and NBA did a 'decertification' isn't quite accurate. Bobby M's latest claiming that a third of the PA would need to petition the NLRB, then wait two months for it to take effect is accurate, but a more immediate option is "Disclaim of Interest", which is what the other two PAs opted to do.

Anyone interested in this subject should read this paper.

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11-23-2012, 12:25 AM
  #250
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My guess is the Fehr is making damn sure the players know what it is.
It depends. If it's a ploy, it's alot easier to explain.

PRO: Might force the owners back to the table.
CON: Owners might decide to see which way the court wind blows, because if you go to court and lose (and there is precedent).... it's over. Season lost, $1.8B down the drain, capitulation/coup.

If it's not a ploy the pros and cons are too numerous to even begin to explain.

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