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Lawyer's Look at the Legal Strategies

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Old
12-26-2012, 11:49 PM
  #1
RedWingsNow*
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Lawyer's Look at the Legal Strategies

Worth a read:
http://hockeyprospectus.com/article.php?articleid=1415

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Both sides are taking an enormous risk—a risk vastly beyond the differences that separate them. Either side's last best offer, while not perfect, was well within the range of reason and was far superior to the extensive loss of revenue and brand destruction that has occurred throughout the lockout and since these last best offers.

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Old
12-27-2012, 12:45 AM
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Conflicted Habs fan
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Quote:
Originally Posted by Captain Bob View Post
Good read, it reinforces some of my thoughts of the matter:

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The NHLPA may well successfully persuade the judge that the NHL owners were engaged in a harsh, unyielding series of ultimatums, rather than true give-and-take negotiations; and as a result, the union was unable to achieve an agreement satisfactory to a majority of its members.
Quote:
I would not want to be the owner of the Florida Panthers, Phoenix Coyotes, Columbus Blue Jackets, or St. Louis Blues in a world without a CBA. It is proof positive of the adage "Be careful what you wish for, because you just might get it."

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Old
12-27-2012, 12:46 AM
  #3
xkirax
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If the case goes to conclusion, I believe Judge Engelmayer will rule that the lockout will no longer be valid if the NHLPA commits to having its members refrain from union representation for a year. I also predict Judge Engelmayer will rule that all pending contracts are valid and enforceable. I expect him to reason that the owners made a business calculation in entering the contracts when they realized the new CBA negotiations could be unsuccessful, and that in the absence of a specific exclusion, the owners are bound by the terms of the contracts.

Both sides are taking an enormous risk—a risk vastly beyond the differences that separate them. Either side's last best offer, while not perfect, was well within the range of reason and was far superior to the extensive loss of revenue and brand destruction that has occurred throughout the lockout and since these last best offers. Consequently, there is no logical explanation for the conduct of either side. As such, Judge Engelmayer is likely to see both sides as being unreasonable and stubborn. It has been my experience that when judges—and especially Federal Judges—find both sides to be intransigent, they bring to bear the full majesty of their judicial powers.
wow this sounds like a flat out WIN for the NHL Players a total 100% win wow they cant be a union for a year they get to try out how a league without a Union would be for them for a year then decide if its not best for them .... im sure they will find out that a Union in sports is BAD

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Old
12-27-2012, 10:07 AM
  #4
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Yeah, it's a 100% sure fire win for the NHLPA......if you want to take the opinions of a self-proclaimed pro-PA personal injury lawyer as gospel.

I'll await the opinions of labor law professionals before planning a victory parade. LOL.

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12-27-2012, 11:03 AM
  #5
Do Make Say Think
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Uncharted territory, don't take anyone who says "I think the judge will rule that..." seriously.

So far the only reasonnable assertion made by people who know legal issues is that precedent in these kinds of cases seems to favour the PA. Anything beyond that is pure speculation and should be taken with a huge grain of salt.

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12-27-2012, 11:07 AM
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hotpaws
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Originally Posted by Conflicted Habs fan View Post
Good read, it reinforces some of my thoughts of the matter:
How could the PA prove the owners offer was unacceptable to the majority of the players when they never allowed a vote to take place ?

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Old
12-27-2012, 11:57 AM
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Conflicted Habs fan
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Originally Posted by hotpaws View Post
How could the PA prove the owners offer was unacceptable to the majority of the players when they never allowed a vote to take place ?
By "offers" you probably are referring to Bettman's "take it or leave it" extortionist demands.
In case you didn't hear the news, by voting for a disclaimer of interest the players are stating that Betman's ultimatums are unacceptable.
http://www.vancouversun.com/sports/N...043/story.html

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12-27-2012, 12:09 PM
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Falconone
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Interesting read

Well, it's an interesting read as others have said.

More interesting was the lack of his referencing prior precedant rulings in his analysis.

He is also right in his anticipation of the District Court's judge possibly being unhappy with having this case taking the courts time and attention.

The possibility that the judge could bring the full force and effect of his office in his ruling could prove to be such an economically devastating result that will be hard to overcome.

However, I'm not sure how he views the 3rd and 4th line player salaries being significantly less than currently offered/signed. Because the statement in which he makes the NHL responsible for existing signed contracts, should hold for ALL players under contract. The superstars and the 2nd, 3rd, 4th. liners as well as the 5-8 d-men.

I don't agree with his assessment of the DOI request and filing being a mistake. By waiting to the last minute and then again verifying through a vote is an approach that could be used to show that the PA was bargaining in good faith, and are only taking the DOI/decertification step as a last resort.

But, judges are funny people and how they view the pleadings in matters is beyond anyones guess.

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Old
12-27-2012, 12:10 PM
  #9
thinkwild
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Quote:
I also predict Judge Engelmayer will rule that all pending contracts are valid and enforceable. I expect him to reason that the owners made a business calculation in entering the contracts when they realized the new CBA negotiations could be unsuccessful, and that in the absence of a specific exclusion, the owners are bound by the terms of the contracts.
This seems to be one of the more pivotal rulings - are the contracts still valid after decert? If they aren't, then the players appear to lose all leverage and the owners might just be willing to take their chances in that environment. Make whole then goes out the window. Otherwise, especially if they dont toll the contracts, they could be better off than the make whole currently being negotiated allows for?


My first thought was as this lawyer suggested - the cba is just a framework for negotiating the contracts. Even after decert. there would still be contracts. And ironically, as many have been beating the players over the head with the idea that players knew when signing the contracts they could be rolled back, i guess the owners also knew there was a possibility they wouldnt get agreement for their plan.

One interesting wrinkle could be the fact that there is linkage, as the contracts as negotiated can only be finally determined after escrow. Can the courts rule the contracts are valid but the surrounding escrow etc isnt?

But i do agree with this lawyer in that both sides are taking an enormous risk. The judge might just not take kindly to their using the courts to try and get out of compromising and may pull a page out of the NHLs own reffing playbook and pull one side out of the scrum at random and penalize them, especially since there is little likelihood that any ruling on this issue would cascade down as precedent to the normal world of employers and labour.

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Old
12-27-2012, 12:11 PM
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Quote:
Originally Posted by Conflicted Habs fan View Post
By "offers" you probably are referring to Bettman's "take it or leave it" extortionist demands.
In case you didn't hear the news, by voting for a disclaimer of interest the players are stating that Betman's ultimatums are unacceptable.
http://www.vancouversun.com/sports/N...043/story.html
What? No. Where are you getting that from? I don't even think you know what a disclaimer of interest is. They're stating that that they don't want to be represented by a union anymore; it's a disclaimer of interest between employees and it's union, not between a union and an employer's offer sheets. IMHO it's a sham and will be handled as such.

I wish someone would 'extort' me by offering me 2.2 m/year and a pension plan.

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Old
12-27-2012, 12:18 PM
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DuklaNation
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Quote:
Originally Posted by Conflicted Habs fan View Post
By "offers" you probably are referring to Bettman's "take it or leave it" extortionist demands.
In case you didn't hear the news, by voting for a disclaimer of interest the players are stating that Betman's ultimatums are unacceptable.
http://www.vancouversun.com/sports/N...043/story.html
A disclaimer is not a vote on a proposal. The article doesnt state this either.

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Old
12-27-2012, 12:21 PM
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This lawyer's interpretations seem unsubstantiated at best. He must do a lot of TV work. His view on the contracts is puzzling when you dont support with the specific clauses in their SPC. That case is not black and white and appears to be open to appeals which can drag this thing out.

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Old
12-27-2012, 12:21 PM
  #13
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Quote:
Originally Posted by Conflicted Habs fan View Post
By "offers" you probably are referring to Bettman's "take it or leave it" extortionist demands.
In case you didn't hear the news, by voting for a disclaimer of interest the players are stating that Betman's ultimatums are unacceptable.
http://www.vancouversun.com/sports/N...043/story.html
Not sure how you came up with that conclusion. It says nothing about Bettman's ultimatums. It says it doesn't like the job the union is doing (even possibily not liking that they never had a chance to vote on the NHL's offers). That's assuming its not just a bargaining ploy, which it obviously is.

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Old
12-27-2012, 12:27 PM
  #14
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So the judge would not only rule the lockout illegal but he would also transform a disclaimer of interest into a decertification, something that normally takes a formal vote by the union members and a waiting period?

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Old
12-27-2012, 12:57 PM
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santiclaws
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Meh. A personal injury lawyer second-guessing two of the most prominent labor lawyers in North America. Not that we don't all do it, but I don't really see much unique insight.

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12-27-2012, 05:17 PM
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Erik Estrada
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My view on the relative strength of the NHL's legal arguments... From most to least compelling Claim in their lawsuit.

1-The Norris-LaGuardia Act deprives the federal courts of jurisdiction to enjoin or restrain the ongoing lockout. (First Claim)
2-The "sham" or insufficient disclaimer (Included in Third Claim)
3-Implied immunity because of lockout right guaranteed by labor laws (Fourth Claim)
4-Statutory Labor Exemption of S. 20 Clayton Act (Second Claim)
5-No antitrust damages can flow from Norris-LaGuardia-protected lockout (Fifth Claim)
6-SPC void and unenforceable (Seventh Claim)
7-Lockout passes Rule of Reason Test (Sixth Claim)

Regarding adding the "SPC void and unenforceable", it's main purpose would likely be just to scare Players from voting to dissolve the union... In the unlikely event a federal judge would declare that these contracts ruled by individual state contract laws are void and unenforceable, it's main use for the NHL would be to just shut down the league (different from a lockout). A federal judge couldn't force businesses to operate.


Last edited by Erik Estrada: 12-27-2012 at 05:36 PM.
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Old
12-27-2012, 05:26 PM
  #17
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This guy's prediction about allowing decertification -- with no chance for reforming as a labor org for 12 months -- might be just what the doctor ordered.

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12-27-2012, 05:58 PM
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What about labor laws in Canada? Unlike the US there is nothing like the NLRA that covers the entire country. Each province has it's own labor laws. For example in Ontario a union may decertify only in the final 3 months of a collective agreement and before the union files notice to negotiate a new contract. Why doesn't the NHL say "that is fine but the Leafs and Senators are still members of a union. The NHLPA didn't decertify under the terms of the Ontario Labor Relations Act?" Let the NHLPA do what they want. The NHL could file in Ontario (and perhaps each other province) that the NHLPA is still certified there. I mean the NHL and NHLPA have chosen to do business in Canada. Therefore they have also agreed that they respect the laws of Canada.

Craig Wallace

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12-27-2012, 06:02 PM
  #19
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I think without a doubt, the legal arguments definitely favour the PA.

A draft, free agency rights, contracting restrictions, are all anti-competitive in their very essence. Long term, the biggest concern has to be whether or not contracts remain valid, but I have a tough time believing that most of the guys with long term deals couldn't get the same or better in a non-unionized environment. The PA would likely also try to declare it an illegal lockout from the beginning (4x damages I believe), but I have a tough time believing they'd win that.

I think the real downside comes in just how long it will take to get there, and the damage it would do in the process. The league had something like $3.3b in revenue last year. With at least a year lost, and no CBA, I have a real tough time believing they'll come anywhere near that. The players may get 75% of league revenues... but if that league's making $2b in revenue, they're not doing any better.

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Originally Posted by cam042686 View Post
What about labor laws in Canada? Unlike the US there is nothing like the NLRA that covers the entire country. Each province has it's own labor laws. For example in Ontario a union may decertify only in the final 3 months of a collective agreement and before the union files notice to negotiate a new contract. Why doesn't the NHL say "that is fine but the Leafs and Senators are still members of a union. The NHLPA didn't decertify under the terms of the Ontario Labor Relations Act?" Let the NHLPA do what they want. The NHL could file in Ontario (and perhaps each other province) that the NHLPA is still certified there. I mean the NHL and NHLPA have chosen to do business in Canada. Therefore they have also agreed that they respect the laws of Canada.

Craig Wallace
The NHLPA could in theory remain certified in Canada, that doesn't mean the NHL would have to negotiate with them, as the CBA was likely signed under american jurisdiction, where the NHLPA no longer exists.

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Old
12-27-2012, 06:16 PM
  #20
xkirax
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Quote:
Originally Posted by cam042686 View Post
What about labor laws in Canada? Unlike the US there is nothing like the NLRA that covers the entire country. Each province has it's own labor laws. For example in Ontario a union may decertify only in the final 3 months of a collective agreement and before the union files notice to negotiate a new contract. Why doesn't the NHL say "that is fine but the Leafs and Senators are still members of a union. The NHLPA didn't decertify under the terms of the Ontario Labor Relations Act?" Let the NHLPA do what they want. The NHL could file in Ontario (and perhaps each other province) that the NHLPA is still certified there. I mean the NHL and NHLPA have chosen to do business in Canada. Therefore they have also agreed that they respect the laws of Canada.

Craig Wallace
You might of missed the whole thing a few months back where it came out that the Union is not recognized in Canada, and the providence's already ruled that they would not get involved in this thing and told both sides to keep it out of their courts

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Old
12-27-2012, 06:26 PM
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Originally Posted by xkirax View Post
You might of missed the whole thing a few months back where it came out that the Union is not recognized in Canada, and the providence's already ruled that they would not get involved in this thing and told both sides to keep it out of their courts
That didn't happen in Ontario. The Ontario Labor Relations Boards ruled in the summer that the lockout was legal in Ontario It was Alberta and Quebec that declined to proceed back in the fall. BC and Manitoba have issued no such ruling.

Craig Wallace

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Old
12-27-2012, 06:46 PM
  #22
xkirax
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Originally Posted by cam042686 View Post
That didn't happen in Ontario. The Ontario Labor Relations Boards ruled in the summer that the lockout was legal in Ontario It was Alberta and Quebec that declined to proceed back in the fall. BC and Manitoba have issued no such ruling.

Craig Wallace
but that does not change the fact that there is no NHLPA in Canada, so the rest of my statement stands

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12-27-2012, 06:59 PM
  #23
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Originally Posted by santiclaws View Post
Meh. A personal injury lawyer second-guessing two of the most prominent labor lawyers in North America. Not that we don't all do it, but I don't really see much unique insight.
You can't argue with his key points

* disclaimer might or might not be ruled a sham

* contracts might or might be voided

* scrubs might or might not be screwed

* bottom teams might or might not be screwed

* a judge might or might not make rulings on what a league with no CBA can do

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Old
12-27-2012, 07:15 PM
  #24
Rob
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When is the first ruling expected?

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Old
12-27-2012, 09:34 PM
  #25
cam042686
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Originally Posted by xkirax View Post
but that does not change the fact that there is no NHLPA in Canada, so the rest of my statement stands
If there is no NHLPA in Canada then there can be no legal lock-out. You cannot under any jurisdiction in Canada lock out non-unionized employees. (I am a HR Manager and I teach Labor Relations at the college level.)

Craig Wallace

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