Legal Look: Was it unlawful for owners to speak to players?

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Eric Macramalla, TSN Legal Analyst
10/25/2012 1:13:38 PM
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On Tuesday, news broke that NHL's owners were given a 48-hour window to talk to players about the CBA proposal.

"Players were contacting club personnel to inquire about our proposal," said deputy commissioner Bill Daly. "We gave them a limited window in which to respond to those inquiries."

When the news broke, there were questions as to whether it was lawful for NHL owners to speak with the players during a lockout.

The Law on Lockout Talk

During a lockout, there is an obligation on the employer to bargain in good faith with the Union. Part of that includes not going around the Union and bargaining directly with the employees.

Efforts to bypass the recognized bargaining agent of the players, namely, the Union, and negotiate directly with the employees/players may be seen as violating labor law and could give rise to an unfair labor practice charge being filed by the Union.

The key here, though, is the word "bargain." 

The owners can't bargain directly with the players. However, there is nothing stopping them from talking to the players, or providing them with information or views on the proposals. When speaking to the players, the owners just can't try and sway player opinion on a proposal, negotiate with them, or otherwise interfere with, or hinder, CBA negotiations.

The NHL Memo

Well aware of the labor law principles at play, the NHL dispatched a memo to NHL executives ahead of opening the 48 hour window. The memo very clearly directed executives not to bargain or negotiate with players.

Here's the NHL's memo, which you will see reminds owners that the Union is the sole bargaining agent of the players and that executives can't "negotiate" with the players (I've underlined some of the important parts):

We understand that some of you are being contacted by one or more of your Players and that your inability to respond substantively is creating some awkwardness in your relationships.

Accordingly, and only between now and 11:59 pm (local time) on Friday night (10/19), the NHL By-Law 17.17 prohibition will not be applied to conversations that result from you being contacted by your Players -- PROVIDED, THAT ANY SUCH CONVERSATIONS ARE STRICTLY IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THIS MEMORANDUM. A failure to follow these rules can both set us back in our effort to resolve this work stoppage and cause serious legal problems and will be deemed a violation of NHL By-Law 17.17 (subject to appropriate penalties).

Therefore, please read these rules carefully and be certain that you adhere to them without exception.  They have been designed in light of the fact that the NHLPA is, in fact and in law, the sole collective bargaining representative of the Players and that any effort to motivate the Players must be to have them act through their union, not instead of or in opposition to it.

As a matter of labor law you are permitted to express the views and opinions of the Club and the League concerning the proposal currently on the table.

YOU MAY NOT: "Negotiate" with a Player.  This means you may not explore alternatives or variations to the proposals on the table from either side because that would be prohibited "direct dealing."  You may not ask "What do you want?" or "What do the Players want?"  or "What should the League propose?"  If a Player tells you that he or others are trying to find a different approach, he should be told that all ideas and suggestions should be presented to the Union and not directly to you or anyone else in the League except through the Union.  You may not ask him what he or others have in mind.

If he volunteers what he has in mind you should not respond positively or negatively or ask any questions but instead refer him to the NHLPA.  Likewise, you may not suggest hypothetical proposals that the League might make in the future or that the League might entertain from the Union.

The NHL's directive acknowledged that a failure to stay on script could "cause serious legal problems" for the league. That's a reference to a violation of labor law and a possible unfair labor practice charge.

Violation of NHL By-Law 17.17

The memo also refers to a violation of NHL By-Law 17.17. This refers to Bettman being able to impose fines of up to $250,000 on a team if it goes too far when talking about CBA negotiations (see Jimmy Devellano).

So How Does This All Shake Out?

If the direction in the NHL memo was followed, then it was not unlawful for NHL executives to contact the players. The NHLPA would need to investigate the conversations had with the players to determine if anything was said that constitutes bargaining.

So ultimately, on its face, the NHL didn't cross the legal line by opening the window on the terms set out in its memo.

Will the NHLPA pursue an unfair labor practices charge?

Highly unlikely. That would require a lot of effort and resources to be dedicated to the matter, and it comes with an uncertain outcome. When the NHLPA publicly expressed its disappointment, it did so to send a message that it would like to avoid seeing this happen again.

My guess is that it's time to move on.

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

Bill Daly (Photo: The Canadian Press)

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(Photo: The Canadian Press)
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