SUN Hockey Pool

NHL facing uphill fight

AL STRACHAN -- Toronto Sun

, Last Updated: 8:35 AM ET

Unfortunately, to understand sports these days, you have to understand a fair bit of law.

Because most people are far too kind, considerate and honest to be lawyers, it follows that most people don't understand the underpinnings of the sports business.

As a result, judging from some feedback, there still are some fans who feel that the National Hockey League could go through the necessary hoops to get a negotiation impasse declared and then use that status to bring in replacement players.

With that in mind, let's look a bit further at what would probably happen if the NHL were to apply to the National Labor Relations Board in the United States to have an impasse declared.

First of all, the NLRB wouldn't want to hear the case. It made that point crystal clear when Major League Baseball tried to go down this path.

But just for the sake of argument, let's say the NLRB did agree to consider the NHL's argument.

STRIKE ONE

"Have you negotiated in good faith?" would be the first question.

The NHL would have to answer that it has, but the NHL Players' Association, which presumably would oppose the NHL's request, would say, "No you haven't. To negotiate, you have to budge off your opening stance and you haven't done that. Your opening stance was a hard cap and you never moved off it."

Strike one.

But once again, let us stretch belief and assume that the NLRB accepts the non-negotiation between the two sides somehow counts as negotiation.

At that point, it would put the NHL to a strict burden of proof with regard to its status as a company like any other under the NLRB's jurisdiction.

"How many of these affected employees have you hired in the past five years?" the NLRB will ask.

"Hire? We didn't hire any of them. Our 30 teams hired them after drafting them."

"Drafting them? That's against the law under the Sherman Anti-trust Act, and for Canadian teams, it contravenes the Competition Act."

At that point the NHL will argue that the Sherman Act can be circumvented if both parties agree. But you can bet your boots the NHLPA would withhold its agreement.

Strike two.

Furthermore, if the NHL were somehow to get the right to use replacements, it would want each team to be able to retain the rights to its players. It wouldn't want them waltzing off as total free agents upon the terminations of each contract.

Again, that's illegal if it is done unilaterally. The NLRB isn't going to allow the NHL to implement a system that is illegal.

Strike three.

The NLRB also is going to ask the NHL to provide legal precedents to show why it should be able to, in essence, break its union.

Of course, there are no such precedents. No sports league has ever been granted impasse status. The NLRB considers impasses between companies and unions that can't come to terms. But the NHL isn't a company in the sense that Ford or GM are companies.

It's an umbrella body that, by virtue of bargained concessions, takes away a number of rights of those who perform under its auspices. It restricts their freedom of movement, imposes discipline upon them, limits their salaries and demands they work under conditions which don't even come close to meeting the required safety standards.

Strike four.

Even the NHL, which always wants its own rules, is out after four strikes.

No impasse ruling.

And, therefore, no replacement players.


Videos

Photos