*Official* CBA Negotiations and Lockout Thread

[gizmo2337]

Reminder: the parties are fighting over contracting rights now. Max length of term and % variance.

At this point in time, this lockout doesn't seem to be about money anymore, they seem to agree on that part. Getting tired of seeing money arguments when the $$$ is pretty much settled.

However, I can see this morphing into Olympic participation fight, transition rules to turf the recent big contracts etc etc. ..

==

On the first day of lockout, the Bettman gave a plea

a deal that force the players over-sea

On the second day of lockout, the Bettman gave a plea

two seasons lost and a deal that force the players over-seas

On the third day of lockout, the Bettman gave a plea

three labor stoppage , two seasons lost, and a deal the force the players over-seas

[The Bookie]

Absolutely. It's pretty annoying to see people wander in to this thread and pull out the million/billion talking point, it's old news* and bad tact towards those of us who've been discussing this in detail over the past 90+ days.

*not to be confused with user oldnews, who adds a lot of useful info

[poetica]

On the first day of lockout, the Bettman gave a plea

a deal that force the players over-sea

On the second day of lockout, the Bettman gave a plea

two seasons lost and a deal that force the players over-seas

On the third day of lockout, the Bettman gave a plea

three labor stoppage , two seasons lost, and a deal the force the players over-seas

[EmployeeoftheMonth]

God you're weird....and misinformed.

[poetica]

God you're weird....and misinformed.

[Cromeslab]

Does anyone find it odd that the NHL named specific players in their lawsuit.just wondering,was hoping someone could shed some light on this.

[The Bookie]

if you look on the previous page, EotM was having an argument with VancouverCanucksRock (who seems to have developed a hybridized style of trolling between fwybwed's incoherent gibberish and drybone's aggressive random capitalization) so I assume that was directed towards them

[poetica]

Does anyone find it odd that the NHL named specific players in their lawsuit.just wondering,was hoping someone could shed some light on this.

[The Bookie]

league struck first in an attempt to gain the upper hand in a possible legal duel

For months, the National Hockey League and National Hockey League Players’ Association have argued over how to split up $3.3 billion in revenue without coming to a compromise.

Despite members of both factions admitting they aren’t that far apart, they haven’t found enough common ground to end this ridiculous lockout.

Last Friday, they decided to add another wrinkle to the proceedings. While the NHLPA talked about a “disclaimer of interest” to dissolve the union and potentially gain rights under anti-trust laws, the NHL filed a class-action complaint in federal court in New York seeking a declaration confirming the lockout is legal and asking that all contracts become void.

That’s just what every hockey fan wanted: a legal battle to solve the lockout.

Eric Macramalla, legal analyst and partner at the Gowlings law firm, explained why the NHL rushed to take the early lead in legal proceedings.

“The NHL wanted to secure home-ice advantage as far as the courts go,” he said. “There are some courts in the U.S. that are more sympathetic to the owners, while some are more sympathetic to the players.

“When you file a lawsuit first, it can become challenging for someone who files a second lawsuit in another jurisdiction to have that second lawsuit actually go forward. You end up having dueling lawsuits, and it becomes a fight over where this case will be heard. If you are the one who files first, sometimes you have a better chance that it will heard where it was initially filed.”

Does the NHL have the advantage now?

“Not necessarily,” said Macramalla. “The NBA filed their suit in August of 2011 asking the judge to rule that the lockout is legal and all their contracts be void. That November though, the NBAPA disclaimed interest and launched an antitrust lawsuit against the NBA. Twelve days later, the sides settled.

“The NHL is arguing that the lockout is legal and, if the NHLPA is dissolving itself by way of a disclaimer of interest; it’s a sham. The only reason the players are blowing up the union is to extract leverage in negotiations and that is not good faith bargaining,” said Macramalla.

For weeks, you’ve probably heard that the union might decertify, but that is incorrect. Decertification is a much larger legal animal, and one the players likely won’t pursue right away.

“Decertification is a lot more formal and robust process. It takes about 45 days to get the entire process complete. It is not instant like a disclaimer of interest. The disclaimer of interest can have the players in court the very next day, while decertification is just plain slower,” said Macramella.

It is important to recognize that if the players disclaim interest, that will not make their contracts null and void. That is why the NHL asked to declare the contracts void when they filed their action on Friday.

How many of you long for the days where you argued over whether Shawn Horcoff was a No. 2 or 3 centre, rather than whether the NHL’s lawsuit is more likely to succeed than the NHLPA’s potential disclaimer of interest? I know I do.

Many feared the NHL’s actions and the pending disclaimer of interest would officially end the dream of hockey in 2013. Luckily, history shows that is not the case.

“The disclaimer of interest is basically a legal shortcut, allowing the union, or in this case the players’ association, to simply announce it no longer represents the players,” said Macramalla. “While the NHLPA is revoking itself as the bargaining agent for the players, they can still negotiate on behalf of the players as long as it is within very strict perimeters. The sides can still talk about the core issues. The only issue is when they do strike a deal; they have to reconstitute or reform the union before you can vote on the collective bargaining agreement and get it ratified by the players.”

Unions disband to attempt to pressure a league to settle.

“The reason this is a good move for unions is that if you go to court and file an antitrust lawsuit and the court sides with you, it can award hundreds of millions of dollars against the NHL, plus lift the lockout,” Macramalla continued. “Those are real legitimate threats. Historically, this kind of thing can help the parties reach a settlement quicker. It certainly helps to apply pressure on the NHL to settle on terms that are more favourable than they are proposing now.”

I seriously doubt the NHL or NHLPA would want a judge to decide their long-term fate. Last year, the court of appeal put the NFL lockout back in place temporarily and the judges warned the players and the NFL that neither party would like their decision. The courts calmly, but forcefully, told them they’d be better off settling their differences themselves.

Let’s hope the judges feel the same about the NHL and NHLPA.

[gizmo2337]

How about...

On the fourth day of the lockout, Bettman gave a plea

four expansion teams, three labor stoppages, two seasons lost, and a deal to force the players overseas.

On the fifth day of the lockout, Bettman gave a plea

five year contract limit, four expansion teams, three labor stoppages, two seasons lost, and a deal to force the players overseas.

[Cromeslab]

Source: http://www.cbc.ca/sp...atest-move.html

The negotiating committee is named I guess because the league is accusing them specifically, as acting representatives of the union, of not negotiating in good faith (proving once and for all that lightening does not strike down liars).

I believe the purpose for naming the New York based players was to two fold, 1) because they are local residents it makes them relevant to the court in question, and 2) because they represent all types of players. By including such a spread of players the NHL is hoping that any ruling made would be valid against any and all players. Otherwise, certain players might have been able to sue regardless of the NHL's suit outcome had it not specifically pertained to their situation. Basically, they're trying to cover all of their bases.

[Mauii]

What has the NHL actually given up in these "negotiations" to make up for the concessions they are asking from the players?

Thus far, the NHL's last proposal only consisted of reducing the players HRR, reducing the $ what the owners had signed them up for at ridiculous amounts by teams that couldn't afford them just before the expiration of the CBA, which leads one to believe that said teams probably really had no intention of honoring said contracts, because bottom line they didn't have the funds to do so but nevertheless was passed by the NHL, which would appear to have been negotiated in bad faith on part by the team, in addition to limiting the lengths of contracts. The only concession the league has made for reducing the players HRR and taking away contracting rights, is that they get to keep other existing rights they already had, and it would be this proposal the players are asked to take it or leave it and consequently leaving them at an impasse. All due respect, under the circumstances where players are only being offered an agreement that reduces their pay and contracting rights, and not honor their contract in full and in return get to keep other contractual rights they already had, wherein could the NHL make claim that they have negotiated in good faith and the players have not? And by further refusing to "negotiate" and conclude matters with the players rightful union representative and not wanting to involve a mediator, and pretty much telling the players take it or leave it, despite claims by the NHL that they are far apart does not help the NHL's cause or claims of the NHLPA negotiating in bad faith by dissolving either. Under the circumstances, the union really has no other alternative.

Arguably the 2004 lockout was concluded because while the players gave up on the no salary cap, in return they got guaranteed unlimited contracts. Sounds like a fair and reasonable negotiation/exchange. In the current proposal by the NHL, what exactly are the players getting in return for reducing their HRR share that could entice them to seriously consider your latest offer?

[Primal Optimist]

Absolutely. It's pretty annoying to see people wander in to this thread and pull out the million/billion talking point, it's old news* and bad tact towards those of us who've been discussing this in detail over the past 90+ days.

*not to be confused with user oldnews, who adds a lot of useful info

[Primal Optimist]

What has the NHL actually given up in these "negotiations" to make up for the concessions they are asking from the players?

[gizmo2337]

All due respect, under the circumstances where players are only being offered an agreement that reduces their pay and contracting rights, and not honor their contract in full and in return get to keep other contractual rights they already had, wherein could the NHL make claim that they have negotiated in good faith and the players have not?

[Mauii]

Primal the NHL hasn't given up anything all they've been doing is taking (taking the players HRR share, taking away monies owed to them under contract, taking away contracting rights) in addition to instilling a take it or leave situation. The only concession the NHL has made was that the players can keep some of their existing rights, and because the players will not accept this deal, which is understandable, and the NHL's take it or leave it offer and refusing to further negotiate with the union, the NHL is making claim the players are negotiating in bad faith because they are going with option two?

Does the NHL even understand the operative condition to "negotiating"? Surely, the NHL must know offering a "take it or leave it" scenario that does not offer significant concessions to the other party, but actually has quite the opposite effect, is not conducive to a collaborative agreement nor can it be a positive negotiating tactic and certainly not in keeping with "negotiating in good faith"...negotiating being the operative word and good faith being the terms and conditions under which the discussions are to transpire between the two parties. Where the league lacks in meeting the first condition...namely refusing to "negotiate" with the NHLPA and arguably compromising the second condition "good faith", the NHLPA cannot be accused of "negotiating in bad faith" by dissolving because the NHL simply was not even present/open to "negotiating" with the union which is probable cause for the disclaimer of interest. Where player's rights cannot/are not being fairly and equitably negotiated by the NHL through the NHLPA, other alternative means will have to be employed.

Arguably, the players have a stronger claim because the league simply will not "negotiate" with the union, especially with their "take it or leave it" as the leagues parting words. The only way to move forward is by way of dissolving the union.

As I see it Fehr has played his cards right, where the NHL is the house of cards on the verge of collapsing and the King who built it will go down with it. I actually think there are owners who wants the union to break. In keeping with Bettman's character he will go down fighting at all costs, and his expansion teams will likely go down with him, and the stronger teams will have the freedom to build the teams as they wish. The NHL will survive but will be reformed as we know it. I don't know why the BOG can't just make this simple and elect to terminate Bettman's executive role instead of going through all the dramatics...yet again. Whoever is running this show/NHL really should just get out of the pro sport industry and into theatrics. There just seems to be more focus on the drama then getting the game back on the ice.

[poetica]

LEGAL LOOK: THE NHL'S LAWSUIT AND WHAT'S NEXT

So it finally happened: the NHL filed a lawsuit in New York asking the Court to declare the lockout legal. The lawsuit is against the NHLPA, but also names 36 players as defendants, including Shane Doan, John Tavares and Henrik Zetterberg. The NHL also filed an unfair labor practice charge against the NHLPA with the National Labor Relations Board alleging that the NHLPA hasn't bargained in good faith.

The NHL sued because it believed there was a real threat the NHLPA was going to file a disclaimer of interest, and after that, sue the league to get the lockout lifted.

Eric, Please Remind Me of the Basics First. Thank You.

It's unlawful for competitors to get together and fix the marketplace. If they do so, they open themselves up to antitrust lawsuits. This applies to the NHL, because the 30 team owners are competitors and they get together and place restrictions on the NHL marketplace. Things like a salary cap, free agency restrictions and rookie pay are all on their face antitrust violations. Another thing that is an antitrust violation is the lockout since it's the owners getting together and agreeing to lockout the players.

Here's the thing though. Since these restrictions are inside the protective bubble that is the collective bargaining agreement (CBA), the NHL is protected and the players can't sue for these antitrust violations. So the CBA insulates the NHL from antitrust lawsuits.

That's where a disclaimer of interest comes in. It refers to the NHLPA terminating its right to represent the players, which effectively dissolves the Union. It's not a very formal process, and can be as quick as Donald Fehr sending a letter to the Commissioner's office declaring the NHLPA no longer represents the players as a bargaining agent. Before Fehr does that, he needs the support of the players.

And that leads to the important part - by disclaiming interest, the CBA rule protecting the NHL against antitrust lawsuits may no longer apply and players are now free to sue the NHL for antitrust violations. So a disclaimer of interest is like the pin that bursts the protective CBA bubble.

And the first thing the players would ask a court is to lift the lockout because it's not legal.

Would A Player Lawsuit Be Serious?

Potentially yes. If the players took their lawsuit all the way to trial (which would take years and for that reason is completely unlikely), and a court found the lockout was illegal, the NHL could be forced to pay the players hundreds of millions of dollars in damages.

Ok Let's Move On. Why Did the NHL Sue First?

This was a pre-emptive strike. As I wrote in my November 26, 2012 column, A Primer on Decertification, if I was the NHL I'm filing a lawsuit first, I'm doing it yesterday, and I'm doing it in New York. And that's what the NHL did.

The reason the NHL filed a lawsuit first was to secure home court (or ice) advantage. There are some courts in the U.S. that may be more sympathetic to the league, while others may be more pro-player. For example, a court in New York may be more likely to side with the NHL owners, while a court in California, which is seen as a more progressive and pro-employee state, might side with the players. So the idea for the NHL was to file a lawsuit in a state that is more likely to agree with its position that the lockout is legal. By doing that, and doing it first in a jurisdiction where both sides are connected to, it may be tougher for the players to have their case heard in a court they prefer.

Are You Saying That the NHL Players Can't Sue Somewhere Else?

No – they can. Once the NHLPA is dissolved, the players could bring a court action in a state like California. Thereafter, a messy battle could follow as to where the case should be heard – New York or California.

What Is The NHL Asking For In Its Lawsuit?

The NHL is asking for 2 key things. First, in anticipation of the NHLPA possibly disbanding and the players thereafter looking to ask a court to lift the lockout, the NHL is asking the Court to rubber stamp the lockout as legal. As part of its argument, the league is taking the position that a disclaimer of interest filed by the NHLPA would be a sham since it would be nothing more than a transparent ploy to extract leverage in CBA negotiations with a view to getting the NHL to settle on more favourable terms. A disclaimer of interest is a serious move, the league has argued, and it should not be akin to turning a light switch on and off simply when convenient. The NHLPA's disclaimer of interest is therefore not good faith bargaining and is contrary to law.

What's The Second Thing The NHL Is Asking For?

They are asking the Court to declare all player contracts void if the NHLPA disclaims or decertifies. The term 'void' means invalid. To read about the differences between decertification and a disclaimer of interest, click here.

Please Explain.

The league is arguing that player contracts are governed by the CBA. By extension, if the collective bargaining relationship between the players and the owners ceases by way of the disclaimer of interest or decertification, then the player contracts should also cease. That would make them void. This might be a tough argument for the NHL to make successfully. A judge may not want to strike down the contracts unless the player contracts actually say they are void under these circumstances.

Is The NHL's Lawsuit A Surprise?

No. The NBA did precisely the same thing in August 2011. The NBA filed its lawsuit in New York, asked the Court to declare the lockout legal, and requested that the Court declare all NBA player contracts void if the NBPA was dissolved by way of a disclaimer or decertification.

So that's why the NHL's strategy sounds familiar.

I Hate Lawyers.

I understand. I barely like myself.

Why Does The NHL Lawsuit Also Name The Players Personally? That Doesn't Seem Very Nice.

Apart from naming the NHLPA as a defendant, the NHL lawsuit also personally names a bunch of players including David Backes, Martin Biron, Scott Hartnell and Shea Weber. There is a reason for that. Under antitrust law, different types of players may suffer different types of damages and be treated differently. So the NHL is looking to account for these different scenarios when asking the court to do certain things. For example, the NHL is aware that in the NFLPA Brady court action related to the NFL lockout, the Appeals Court put the lockout back in place except against "free agents and rookies".

Which Side Would Win In Court?

There is a lot of uncertainty in this area. The law is sorted and complex and it's too tough to say which side is favoured in court. The only certainty here is uncertainty.

What's All This NLRB Stuff About?

Apart from its lawsuit in New York, the NHL also filed an unfair labor practice charge with the National Labor Relations Board (NLRB). The league has alleged that by threatening to disclaim interest, the NHLPA has failed to negotiate in good faith, which is a violation of labor law.

Is The NLRB Complaint Another Lawsuit?

No, it's not a lawsuit. The NLRB is a specialized U.S. agency charged with dealing with such things as allegations of unfair labor practices. The NLRB gets about 20,000 cases a year from employees, unions and employers covering a range of unfair labor practices.

The NLRB will determine if the NHLPA has bargained in good faith, or if its tactics constitute bad faith bargaining. At first glance, the NHLPA has made substantive offers to the NHL and has seemingly been engaged in these negotiations. Under the circumstances, the NHLPA may say that with no more room for compromise, the disclaimer of interest was filed as a last resort. If that's the case, this would not be an easy case for the NHL. In any event, don't expect a ruling from the NLRB any time soon. They can take months to issue decisions. In the case of the NBA, the NLRB did not issue a decision despite the lockout lasting over 4 months. So the NLRB is unlikely to be a factor in this lockout.

Could The NHL Lawsuit & NHLPA Disclaimer End The Lockout Quicker?

Yes. No. Maybe. It's not unreasonable to share the view that the introduction of antitrust litigation will encourage the sides to settle. The players filing their own lawsuit, which would not be a surprise to see this week, may also result in further pressure to get a deal done.

There is a precedent. On November 14, 2011, the NBPA disclaimed interest, filed an antitrust lawsuit the next day, and twelve days later the sides agreed on a new CBA. On the flip side, though, after the NFLPA disclaimed interest, the case didn't settle for another 4 months. Of course, the difference between the two is that the NBA was missing games, whereas the NFL season wasn't even underway.

Litigation may also make it more likely the entire NHL season will be lost. However, at this point, declaring that the season is done is grossly premature. In 2005, the season was only called off on February 16. So there remains time to bridge the gap between the sides. As the NHL is not looking to fundamentally change its business model as it did in 2005, conventional wisdom suggests that this should get settled and the NHL should return this season. This lockout, however, has been filled with surprises, and as a result, it's tough to know when the sides will strike a deal.

Eric Macramalla is TSN's Legal Analyst and can be heard each week on TSN Radio 1050. You can follow him on Twitter @EricOnSportslaw.

[oldnews]

[brewdog]

[Bodee]

if you look on the previous page, EotM was having an argument with VancouverCanucksRock (who seems to have developed a hybridized style of trolling between fwybwed's incoherent gibberish and drybone's aggressive random capitalization) so I assume that was directed towards them