Sep 15

Checking: Is There Potential for Unintended Ramifications from the NHL Lockout Challenge?

The last few years have been active for those interested in labor-management relations in the world of professional sports.  Last year saw the lockout of NFL players and a delay of the NBA season because of a breakdown in negotiations.  Only the MLB and the MLB Players Association seemed able to amicably negotiate a new collective bargaining agreement.

This year’s conflict has been the negotiation of a new collective bargaining agreement (CBA) for players in the National Hockey League (NHL).  The current agreement was set to expire at midnight Saturday.[1]  While the parties have continued discussion in recent days and weeks, it has been reported that they remain far apart on compensation and revenue sharing[2], the two central issues in the negotiations.[3]  Now it appears the parties have ceased the bargaining process altogether.[4]  The players have stated they would gladly continue to play while a new agreement is negotiated[5], however, the owners have already voted to implement a lockout if a new agreement is not reached today.[6]

During previous lockouts in other sports, the union and its player-members have attempted to find ways around the lockout in an effort to ensure the players continue to receive paychecks while an agreement is being negotiated.  Last year NBA players attempted to decertify their union, which would have allowed them to bring an anti-trust claim against the league to end the lockout.[7]  Now, the NHL Players Association (NHLPA), along with a number of players, is attempting to partially block the lockout through an application filed with the Quebec Labor Relations Board.[8]

On Wednesday, the NHLPA and sixteen players from the Montreal Canadiens filed an application to have the potential lockout deemed illegal in Quebec because the NHLPA is not a recognized union within the jurisdiction.[9]  Quebec labor laws state that if an employee is not represented by a union certified within the province, he or she cannot be locked out of the workplace.[10]  The argument made in the application is that since the players for the team located within Quebec do not have a union, the owners cannot enforce a lockout of these players.[11]  On Friday, the Quebec Labor Relations Board denied the request from the union and the players for an immediate injunction against the potential lockout.[12]  The Board will, however, hold a lengthier hearing on the merits of the claim at a future time.[13]

Players from the Edmonton Oilers and the Calgary Flames have filed an application with the Alberta Labor Relations Board seeking similar relief on the grounds that the NHL did not follow the proper protocol for negotiations[14]; a hearing is scheduled for September 21st.[15]

The move by the players and the union to block the lockout on grounds that the union is not certified to represent the players in Quebec raises the question of what will be the ramifications if they are ultimately successful with the application.  There is no indication that the Montreal Canadiens have ever attempted to use the NHLPA’s non-certification status within the province against either the players or the union.  If, however, the Quebec Labor Relations Board finds that the players are unrepresented employees within the meaning of its labor laws, one has to wonder if the team will attempt to be as creative as the union has been through its current strategy.

The document that binds the owners to the NHL would likely come into play and may force the owners to abide by the new CBA.  But it is conceivable that the owners of the Canadiens could, under such a scenario, refuse to recognize the new collective bargaining agreement (assuming the NHL and the NHLPA are able to negotiate a new agreement) on the grounds that its players are not represented by the union that negotiated the agreement and, therefore, not protected by it.  This would mean that many of the provisions traditionally found in CBAs involving professional sports leagues, including procedures for drafting and trading players, player reserve systems, salary guidelines, and safety and health programs, would not apply to the Canadiens.  It is hard to conceive of what this would mean not just for the team in question, but for professional hockey as a whole.  Would the team be considered to be its own league?  How would it compete against other teams?  From where and how would it obtain its players?  What if the New York Rangers were interested in obtaining a player from the Canadiens – how would the trade be executed and would it be recognized as a valid trade?

It is unclear whether any of this would come to pass if the Quebec Labor Relations Board rules in favor the players and the union after holding a full hearing.  Given the reliance of the Montreal Canadiens on the NHL and the other teams subject to the CBA to turn a profit, it is likely that the team would be inclined to abide by the new CBA and not attempt to rock the boat.  However, in light of the history of recent labor unrest in the professional hockey world, such a move down the road during a future labor dispute should not be ruled out and the union should not entirely discount its possibility.


[1] Eben Novy-Williams, NHL Owners, Players Tweak Proposals as Labor Deadline Looms, Bloomberg News, Sept. 13, 2012.

[2] Id.

[3] Id.

[4] Ira Podell, NHL says no bargaining with union Saturday, Boston Globe, Sept. 15, 2012.

[5] Novy-Williams, Deadline, supra.

[6] Katie Strang, NHL Owners Support Lockout, ESPNNewYork.com, Sept. 13, 2012.

[7] Gabriel A. Feldman, The Legal Issues Behind the NBA Players’ Decertification Strategy, Huffington Post, Nov. 8, 2011.

[8] Novy-Williams, Deadline, supra.

[9] Novy-Williams, Deadline, supra.

[10] Jeff Z. Klein, N.H.L. Union Tries Legal Maneuver in Canada, New York Times, Sept. 11, 2012.

[11] Novy-Williams, Deadline, supra.

[12] Sports XChange, NHLPA denied delay of impending work stoppage, Chicago Tribune, Sept. 14, 2012.

[13] Id.

[14] Podell, No bargaining, supra.

[15] Sports XChange, Denied delay, supra.

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