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

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Old
11-22-2012, 02:45 PM
  #151
tko78
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Originally Posted by Kimota View Post
Well if one corporation buys all the teams, then that org. would decide where the players go since teams would not exist per se, right. Players would sign contracts with the league, not with teams. Hell that coporation could very well just decide that the NHL is about 50 guys running after a puck and nobody could do anything.
See my post above on the problems with moving from the current ownership format to a single entity format. It's not just a stroke of a pen thing, there are current contracts between individual teams and players, individual teams and suppliers, individual teams and arena owners, etc. You can't just break these contracts without covering the damages.

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11-22-2012, 02:46 PM
  #152
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Quote:
Originally Posted by Kimota View Post
Well if one corporation buys all the teams, then that org. would decide where the players go since teams would not exist per se, right. Players would sign contracts with the league, not with teams. Hell that coporation could very well just decide that the NHL is about 50 guys running after a puck and nobody could do anything.
Except, for one corporation to buy all the teams would require US Dept of Justice approval - after an anti trust investigation of the anti-competitive effects of such a merger, including effects on the labor market - which I think would be very unlikely to be granted.

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11-22-2012, 02:47 PM
  #153
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Quote:
Originally Posted by Kimota View Post
Well if one corporation buys all the teams, then that org. would decide where the players go since teams would not exist per se, right. Players would sign contracts with the league, not with teams. Hell that coporation could very well just decide that the NHL is about 50 guys running after a puck and nobody could do anything.
Which was basically the rationale in the MLS decision. Basically the teams could not legally conspire with each other to violate Sherman because they were all part of a single legal entity. Theoretically that could have happened if Bain Capital's takeover proposal was accepted in 04.


Edited to add that the Bain thing was never going to happen anyway for about a million practical and legal reasons.

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11-22-2012, 02:49 PM
  #154
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Quote:
Originally Posted by Kimota View Post
Well it almost happened in 2004, though.
No. Bain's offer was a pipedream.

It never would have been unanimously accepted by the owners and it would never have gotten Dept of Justice approval.

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11-22-2012, 02:51 PM
  #155
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Originally Posted by OneSharpMarble View Post
Pretty sure you can't own two teams let alone a whole bunch. It would be a conflict of interest.
But we have situation in various leagues where an owner partly own more than one team, right? Bell has stakes in the Habs and Maple Leafs. Also NHL is a business. Any business can be bought. They could say we buy all the teams and but we will turn it into a entertainment company, the NHL is not a sport anymore. So the rules of teams vs teams do not apply to us.

This would be interesting to see what they could and could not do. Like I said it almost happened in 2004 and I wonder if this can be done.

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11-22-2012, 02:53 PM
  #156
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Originally Posted by kdb209 View Post
No. Bain's offer was a pipedream.

It never would have been unanimously accepted by the owners and it would never have gotten Dept of Justice approval.
We would never know if this could be accepted or not. But as I understand the NHL put the kibosh on it because Bain did not offer enough.

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11-22-2012, 02:57 PM
  #157
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Originally Posted by Egil View Post
To go further down this road, without a union and the resulting anti-trust exemption, I think you would have someone (say Jim Balsille for arguments sake) who sues the league for not allowing his "team" to compete. If that line of argument is succesful, then we would quickly have a more European soccer league setup, which is undoubtedly better for the very good but not elite player.
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Originally Posted by Epsilon View Post
This is probably one of the great unknowns of sports antitrust law. It would be pretty fascinating to see it unfold.
The Non Statutory Labor Exemption under a CBA only provides an anti trust exemption with respect to labor issues. It doesn't have any effect on anti trust issues among the League, owners, or potential owners.

The court precedents permitting a League to arbitrarily reject a potential owner were not based on any anti trust exemption - but on the rights of a private partnership or joint venture to choose whom they elect to allow to join.

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11-22-2012, 02:57 PM
  #158
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Quote:
Originally Posted by Kimota View Post
We would never know if this could be accepted or not. But as I understand the NHL put the kibosh on it because Bain did not offer enough.
And there would have been no way some owners like Snider (for instance) would have sold the entirety of their teams for any amount of money. Illitch would probably be another example.

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11-22-2012, 03:21 PM
  #159
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Originally Posted by Kimota View Post
What are you talking about, the players would get killed. The CBA allows to them to have some protection, that X number of players get contracts. Without a union you would have something like one player making 25 million and the others could play for 10 thousand.
Not if any of those other player looks interesting to the Rangers. Remember they gave Bobby Holik $9 million a season almost 10 years ago, what do you think they'll hand out to a decent 2nd line center now!

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11-22-2012, 03:29 PM
  #160
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Fugu,

If the question about intent is raised, there is a possible legal arguement that ownership isn't bargaining in good faith. A court could and likely would rule in favor of a PA lawsuit on Anti-trust grounds.

It is impermissable to negotiate without the intent of reaching an agreement via compromise.

So there better not be emails correspondence or communication of any kind implicating the NHL ownership or their respective representatives in negotiating in bad faith. Just offering proposals and talking isn't negotiating in good faith.

The law requires that parties come to the court with "clean hands". Not negotiating in good faith, if proven would be very bad for the NHL


F1

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11-22-2012, 03:37 PM
  #161
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Originally Posted by Falconone View Post
Fugu,

If the question about intent is raised, there is a possible legal arguement that ownership isn't bargaining in good faith. A court could and likely would rule in favor of a PA lawsuit on Anti-trust grounds.

It is impermissable to negotiate without the intent of reaching an agreement via compromise.

So there better not be emails correspondence or communication of any kind implicating the NHL ownership or their respective representatives in negotiating in bad faith. Just offering proposals and talking isn't negotiating in good faith.

The law requires that parties come to the court with "clean hands". Not negotiating in good faith, if proven would be very bad for the NHL


F1
Could the same issue not be raised for the PA's position?

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11-22-2012, 03:54 PM
  #162
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Quote:
Originally Posted by Falconone View Post
Fugu,

If the question about intent is raised, there is a possible legal arguement that ownership isn't bargaining in good faith. A court could and likely would rule in favor of a PA lawsuit on Anti-trust grounds.

It is impermissable to negotiate without the intent of reaching an agreement via compromise.

So there better not be emails correspondence or communication of any kind implicating the NHL ownership or their respective representatives in negotiating in bad faith. Just offering proposals and talking isn't negotiating in good faith.

The law requires that parties come to the court with "clean hands". Not negotiating in good faith, if proven would be very bad for the NHL


F1
"Negotiating in bad faith" is a Labor Law issue that only applies before decertification. After decertification, the Players (and the Owners) can't use Labor Law anymore. Antitrust Law replaces Labor Law.


Last edited by Erik Estrada: 11-22-2012 at 04:02 PM.
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11-22-2012, 03:59 PM
  #163
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Doubt a court, upon finding evidence of the NHL negotiating in bad faith (remember that ws the original premise) would conclude that the PA was similarly participating.

The PA offered to continue playing under the old agreement as a way to continue playing, the NHL's response was to offer 43% and a host of significant cuts to previously negotiated player rights and contract provisions. Ones they had agreed to before. A number of times. Those actions alone could easily give rise to the conclusion of the court that they had no intent to sign a fair and fairly negotiated CBA. Be advised courts are allowed to infer intent from the parties actions.

Fehr, like him or not, postitioned the PA very well from the beginning and has continued to 'out play' the NHL at almost every turn.

The fact that the negotiations are now stuck, essentially over player contract rights actually favors the union. The NHL consented to these rights a long time ago and the NHL through Bettman continued to extend and even expand those rights, contract after contract for virtually every CBA since Bettman has been commisioner.

In an impartial court, with evidence that the owners began and continued to bargain in bad faith, I wouldn't want to be the owners lawyer. Frankly, they have positioned themselves so that the NHLPA could make a prima facie case for bad faith negotiations as it stands now.

If the union were to decertify, my guess is that a number of lawyers representing both players and agents would be filing a wide range of lawsuits against the NHL.

But hey that's just my opinion. Everyone has one.


Last edited by Falconone: 11-22-2012 at 04:05 PM.
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11-22-2012, 04:10 PM
  #164
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Quote:
Originally Posted by Falconone View Post
Doubt a court, upon finding evidence of the NHL negotiating in bad faith (remember that ws the original premise) would conclude that the PA was similarly participating.

The PA offered to continue playing under the old agreement as a way to continue playing, the NHL's response was to offer 43% and a host of significant cuts to previously negotiated player rights and contract provisions. Ones they had agreed to before. A number of times. Those actions alone could easily give rise to the conclusion of the court that they had no intent to sign a fair and fairly negotiated CBA. Be advised courts are allowed to infer intent from the parties actions.

Fehr, like him or not, postitioned the PA very well from the beginning and has continued to 'out play' the NHL at almost every turn.

The fact that the negotiations are now stuck, essentially over player contract rights actually favors the union. The NHL consented to these rights a long time ago and the NHL through Bettman continued to extend and even expand those rights, contract after contract for virtually every CBA since Bettman has been commisioner.

In an impartial court, with evidence that the owners began and continued to bargain in bad faith, I wouldn't want to be the owners lawyer. Frankly, they have positioned themselves so that the NHLPA could make a prima facie case for bad faith negotiations as it stands now.

If the union were to decertify, my guess is that a number of lawyers representing both players and agents would be filing a wide range of lawsuits against the NHL.

But hey that's just my opinion. Everyone has one.
Seems like a reasonable assumption to me.

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11-22-2012, 04:14 PM
  #165
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Originally Posted by Falconone View Post
Doubt a court, upon finding evidence of the NHL negotiating in bad faith (remember that ws the original premise) would conclude that the PA was similarly participating.
I have no law background so maybe someone here that does can chime in, is there a distinction to be made between negotiating in bad and refusing to negotiate?

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11-22-2012, 04:55 PM
  #166
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MOD

So you are telling me that anti-trust laws and the Sherman act wouldn't be in play here?


Last edited by Fugu: 11-22-2012 at 04:57 PM. Reason: quotes deleted post
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Old
11-22-2012, 05:09 PM
  #167
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Originally Posted by kdb209 View Post
Except, for one corporation to buy all the teams would require US Dept of Justice approval - after an anti trust investigation of the anti-competitive effects of such a merger, including effects on the labor market - which I think would be very unlikely to be granted.
Exactly.

Also, if we are to assume that Federal Baseball Club vs. National League does not apply to pro hockey, as the courts have consistently hinted at over the years, then would it not be a violation of the Sherman Act for the NHL to force a particular team to sell its ownership to some entity attempting to acquire the entire league? In other words, no such total acquisition could take place if even one team was against it which, undoubtedly, the Leafs, Canadiens, Rangers, Red Wings, Bruins, and Flyers would be, just for starters, unless the buying price was ridiculously high (and even then they might still not agree).

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11-22-2012, 06:17 PM
  #168
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Originally Posted by Falconone View Post
Doubt a court, upon finding evidence of the NHL negotiating in bad faith (remember that ws the original premise) would conclude that the PA was similarly participating.

The PA offered to continue playing under the old agreement as a way to continue playing, the NHL's response was to offer 43% and a host of significant cuts to previously negotiated player rights and contract provisions. Ones they had agreed to before. A number of times. Those actions alone could easily give rise to the conclusion of the court that they had no intent to sign a fair and fairly negotiated CBA. Be advised courts are allowed to infer intent from the parties actions.

Fehr, like him or not, postitioned the PA very well from the beginning and has continued to 'out play' the NHL at almost every turn.

The fact that the negotiations are now stuck, essentially over player contract rights actually favors the union. The NHL consented to these rights a long time ago and the NHL through Bettman continued to extend and even expand those rights, contract after contract for virtually every CBA since Bettman has been commisioner.

In an impartial court, with evidence that the owners began and continued to bargain in bad faith, I wouldn't want to be the owners lawyer. Frankly, they have positioned themselves so that the NHLPA could make a prima facie case for bad faith negotiations as it stands now.

If the union were to decertify, my guess is that a number of lawyers representing both players and agents would be filing a wide range of lawsuits against the NHL.

But hey that's just my opinion. Everyone has one.
My opinion quite simply is the league wanted to negotiate a year ago, the union refused. Negotiating in bad faith indicator to the players.

The owners kept the same economic system during negotiations that the players were willing to play under, the players refused to acknowledge this. Negotiating in bad faith points to the players.

The owners final offer (as it now stands) would be the best deal for players in terms of pay with the closest comparables. Negotiating in good faith points to the owners (and the players too as their system is something at least close).

The owners have moved substantially off their initial position towards the players. The players have somewhat too.


I just cannot see how anyone can prove the owners are negotiating in bad faith. They tried early and have offered a better deal than the comparables.

That is just not one the players can win.

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11-22-2012, 06:19 PM
  #169
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In Bob McKenzie's new article he discusses the decertification issue:

MCKENZIE: THREE CBA-RELATED ISSUES TO BE DEALT WITH SOON
http://www.tsn.ca/nhl/story/?id=4100...ce=twitterfeed

Quote:
3. Decertification.

It's already the word-du-jour, and for good reason.

On pretty much every NHLPA conference call with the players in past weeks, there's been some discussion on the potential of decertification as an NHLPA strategic tool. But on each of those calls, the emphasis always turned towards negotiating a settlement with the NHL and decertification was shelved.

Until last night's conference call, that is. For the first time, when decertification was brought up, there was no stated objective to it. A number of NHL players who might have otherwise have raised an objection or concern to it didn't because they said the climate on the call, after the NHL rejected what the players thought was a significant proposal, was too hot to talk of moderation.

After last night's player call, it is fair to say that NHLPA executive director Don Fehr has the mandate or green light to go down the decertification road. That doesn't necessarily mean decertification is imminent or that the actual process is underway, but multiple sources say it is unquestionably on the next page of the NHLPA playbook and that is a viable option that may soon become reality.

...
First, the NHLPA must petition for the mere opportunity to decertify. A petition signed by one-third of the NHLPA is required to launch the process. If that petition is successfully executed, decertification could go to a membership vote, with simple majority rules.


Last edited by Fugu: 11-22-2012 at 06:33 PM. Reason: copyright
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11-22-2012, 06:31 PM
  #170
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Originally Posted by Halibut View Post
Not if any of those other player looks interesting to the Rangers. Remember they gave Bobby Holik $9 million a season almost 10 years ago, what do you think they'll hand out to a decent 2nd line center now!
But there are 700 players. And without the CBA they would have zero benefit and would have to pay for travels, hotels, etc...

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11-22-2012, 06:34 PM
  #171
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If the NBA and NFL decertified, why didnt their players all end up changing teams?

Or is that they voted to decertify but the threat of it happening ushered in a new CBA before it happened?

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11-22-2012, 06:36 PM
  #172
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Originally Posted by blasted_Sabre View Post
If the NBA and NFL decertified, why didnt their players all end up changing teams?

Or is that they voted to decertify but the threat of it happening ushered in a new CBA before it happened?

The latter appears to be what happened. The matter was never tested in anti-trust cases, but players from both leagues had filed cases.

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11-22-2012, 06:39 PM
  #173
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Originally Posted by Epsilon View Post
Exactly.

Also, if we are to assume that Federal Baseball Club vs. National League does not apply to pro hockey, as the courts have consistently hinted at over the years, then would it not be a violation of the Sherman Act for the NHL to force a particular team to sell its ownership to some entity attempting to acquire the entire league? In other words, no such total acquisition could take place if even one team was against it which, undoubtedly, the Leafs, Canadiens, Rangers, Red Wings, Bruins, and Flyers would be, just for starters, unless the buying price was ridiculously high (and even then they might still not agree).
But someone was interested in doing it in 2004 and when there's so much money involved you don't go into this blind. These guys had studied the possibilities. Plus after you buy the team, you avoid the competitive-type laws if you rebrand as entertainment instead of sport. Another possibility would be for this corporation to buy the teams except the usual big markets Top 7. So it would be 8 entities. Of course these teams like the Rangers and Habs etc...would have greater independance....

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11-22-2012, 06:40 PM
  #174
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Andi Petrillo ‏@andipHNIC
Just spoke to a locked player who is leaning towards decertification. Said "we can't play under league's proposal, so why not blow it up?"

I wonder if anyone explains to them the downside of de-certification?

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11-22-2012, 06:41 PM
  #175
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Originally Posted by UsernameWasTaken View Post
Andi Petrillo ‏@andipHNIC
Just spoke to a locked player who is leaning towards decertification. Said "we can't play under league's proposal, so why not blow it up?"

I wonder if anyone explains to them the downside of de-certification?

In your opinion, what are the up- and downsides?

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