So, here's the plan. The National Hockey League shuts down the season, then starts next year with replacement players.
You can be excused for believing that such a scenario is possible, even likely, because you hear it parroted about in so many circles.
But that doesn't make it right. In fact, it's downright inaccurate.
For starters, let's look at the legislation involved. In the United States, labour laws are a federal matter; in Canada they're provincial.
In three of the four provinces in which the NHL operates -- Ontario, British Columbia and Quebec -- the legislation is quite clear: Replacement workers are not allowed.
In Alberta, the league might be able to do it, but it would not be easy. So for all intents and purposes, if there were a replacement league, it would not have any Canadian teams.
ONLY ONES WHO CARE
Since Canadian fans seem to be the only ones who care that a lockout exists at the moment, what's the sense of that?
On to the United States. If replacement workers were to be used there, the NHL would have to go to the National Labor Relations Board and get an impasse declared.
The basis of the league's case would have to be that it has negotiated in good faith, but the two sides are so intransigent that there is no hope of a settlement.
But how can the NHL plead that? It hasn't negotiated at all. It has simply said again and again for three years that the union must accept its hard-cap demands.
Some of these hard caps were camouflaged a bit, but the essence was the same. They were hard caps.
Stating and restating your primary demand and refusing to budge off that point does not constitute negotiating. So on that point alone, the NHL's attempt to get an impasse declared would fail. And with no impasse, there can be no replacement league.
Those who say "the National Football League did it," are right. But they forget -- or never knew -- that the NFL players didn't have a union at the time. It had been decertified. The NHL players have not the slightest intention of following that course of action.
Those who think that the use of replacement players would be easy to implement should ask themselves one basic question: If it were that easy, why wouldn't every big company in the United States do it?
Why wouldn't General Motors go to the NLRB and say, "We want to hard-cap our workers' salaries at $7 an hour and implement 12-hour workdays and they won't agree. Declare an impasse so we can bring in replacement workers."
Major League Baseball started to go down that path but didn't get very far. The NLRB made it clear that this was not the kind of case it wanted to hear and baseball went back to the negotiating table.
The NLRB, after all, is a quasi-governmental agency and not the Supreme Court. It wants to follow precedents, not set them, and there is absolutely nothing in U.S. labour history that would lend any precedent whatsoever to a sports league being granted impasse status.
Furthermore, NHL commissioner Gary Bettman insists that he and his governors never have discussed the possibility of implementing replacement players. Although such pronouncements sometimes have to be taken with a grain of salt, in this case, he's almost certainly telling the truth.
Bettman is first and foremost a lawyer and he knows full well the dangers of discussing such a scenario with the governors. If one of them got caught swindling (which seems to happen with remarkable regularity) he could make a deal with prosecutors to blow the whistle on the league's antitrust discussions. Can you say, "triple damages"?
That's why Bettman and the governors don't talk about it. That, and the fact that it isn't going to happen.