Home » More & Less Hockey » Pain threshold: can the NHL do what others couldn’t?

Pain threshold: can the NHL do what others couldn’t?

The NHL wants to void player contracts if the NHLPA succeeds in any action to disclaim interest or decertify?  No kidding.  Isn’t that what the NHL has been trying to do all along?  Maybe not void those contracts, but certainly they have tried to cut out the bits they don’t like.  The NHL is also claiming that any attempt to disband the NHLPA would be a sham because the players are completely unified behind their union and its leader.  This despite earlier accusations that said leader has misled and grievously abused those players.  Whatever.

This cannot simply be about a few contracts that NHL owners regret signing.  It simply can’t be about 2 years difference in desired CBA length.  It can’t be about how to divide up the pie, between players, teams and other teams.  If that’s what it were about, both negotiating committees need to be confined to padded rooms.  I may loathe Gary Bettman’s public manner but I don’t believe he is an imbecile.  The capacity of Donald Fehr’s brain has never been in question.  So what are these guys really fighting about?  Like a married couple screaming about which tv show to watch, the real problem cannot be defined using the words they let us hear.  It smacks of a really big blow-up that will leave scorch marks well beyond the borders of pro hockey.

To put the NHL lawsuit in context, I started with this breakdown from Mark Spector.  That raised a bunch of other questions so I went to read the NHL’s suit.  The NHL of course puts the suit in context: their context.  Not trusting the plaintiff in a case, I decided I had to go back to 2011, back to the 70s, maybe even to 1932.  I know, I probably need to see the doctor, but the only way I know to deal with compulsion is to let it run its course.

1932.  That’s where I find the Norris-LaGuardia Act.  It basically says that courts won’t interfere with a group’s peaceful, legal efforts to organize and negotiate for employment contracts.  That applies to both employers and employees.   Every one of these recent collective bargaining cases begins with Norris-LaGuardia.  This tells me that no one has succeeded in “breaking” that code, not really.  If they had made any headway in any direction away from it, they would be citing something else.  Laws are funny that way.

Fast forward to the 2011 Brady v NFL case. That’s a link to the NFL’s appeal. After a District Court granted the players an injunction against the lockout, the NFL appealed.   The appeals court went to great lengths to explain why they would say no more than that the District court ruling was wrong because the court had improperly applied Norris-LaGuardia:

Given our conclusion that the preliminary injunction did not conform to the provisions of the Norris–LaGuardia Act, we need not reach the other points raised by the League on appeal. In particular, we express no view on whether the League’s nonstatutory labor exemption from the antitrust laws continues after the union’s disclaimer.

So, no help there for someone trying to stop a players association from dissolving and starting anti-trust actions.  Also not much help for anyone else really.

The dissent to that opinion voices precisely the concerns I have- that such a decision doesn’t just “not interfere in labor negotiations.”  It weighs heavier to one side than the majority decision suggests:

Despite the repeated efforts of the legislative branch to come to the rescue of organized labor, today’s opinion puts the power of the Act in the service of employers, to be used against non-unionized employees who can no longer avail themselves of protections of labor laws. Because I cannot countenance such interpretation of the Act, I must and hereby dissent.

I wonder if the NBA and the NHL got some hope from that?  “Hey, he said the power of the Act is in the service of employers!  That’s us!”

You could say the Brady case inspired the 2011 NBA suit, which is pretty much the NHL suit in rough draft form.  Since the NBA and the NBPA also settled, we don’t know how that would have played out in court.  This could be precisely why the NHL and the NHLPA are going down the same road.   The question is, are the parties involved– and I don’t just mean in hockey– interested enough to know how it could go to drag this out to the bloody end, now?  Can the NHL kill the scary monster that is union dissolution and anti-trust lititgation?

That reminded me of a piece from the New York Times about what the hell all this craziness is really about:

But why the lockout, and why did the N.F.L. fight so hard? Because the league was fighting a bigger fight, one that is representative of a war beneath the surface of the modern economy — the war between capital and talent. -Roger Martin, New York Times, Sept 28 2012

I feel like all this focus on labor unions leaves something to be desired for this class called “talent.”  What if you let people run willy nilly where they want without a union to fence them in?  You end up having to negotiate contracts with each and every fussy one of them, and then abide by that contract under regular old contract law.  Free-range contract law is a lot less forgiving than those fuzzy things conceived under the NHL CBA blankets.

Did the NFL and the NBA simply lack the stomach to see this through?  Or were both those cases just feeling-out efforts, a chance to see if the legal climate had moved far enough away from that stuffy old “protection of labor” impulse?  Some of both?

It is entirely possible that the NHL could die on this hill, for the sake of beleaguered owners everywhere.  On the other side, will the NHLPA be the sacrificial lamb to the rights of talent to organize?  I guess it depends on who wins a fight that has absolutely nothing to do with hockey, aside from the fact that it’s small enough to be unmoved by fan complaints.  NHL owners, as Mark Spector points out, are quite used to losing money.  They won’t be swayed by such dangers.  They simply don’t have as much to lose as those NFL or even NBA owners did.  They might be Capital’s ace up the sleeve.  They could bring organized talent down in ways none of the big guys could.  I would  characterize it as a noble sacrifice if their objectives weren’t so despicable.

Unlike Spector, I don’t think Fehr simply overplayed his hand.  I don’t believe he didn’t know hockey isn’t baseball.  I think he knew it very well, and that’s why he looked so calm, while Bettman and Daly didn’t, even though the NHL was the side getting ready to declare war.  I believe the bizarre posturing from both sides has been a weak preamble to a showdown.  The only thing left is to light the fuse with the players’ consent.  Are they willing to be used as cannon fodder?

Putting employees, especially talented ones, in their place is no small task.  There’s this bloody free market out there that feeds them even if they leave your house.  Stopping the owners’ pig-headed push for a return to serfdom is no small task either, and I believe many talented people in all kinds of industries would say it is worth sacrificing the members of one player’s union.

If I believe all that, I guess I have to kiss the season good bye, and possibly the next and the next.  But at least I know what the fight is about.  It sure as hell isn’t about Zach Parise’s contract.

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