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Wednesday, March 30, 2005

The NHL Files an Unfair Labor Practice

The NHL has filed an unfair labor practice against the NHL Player's Association. (Found in The Sports Economist.) The NHLPA has apparently warned its members that, should they play as replacement players during a (hypothetical) 2005-06 season, the union will seek to require them to repay the benefits they have received during the lockout. According the the story, players have been receiving between $5,000 and $10,000 per month during the lockout.

In an additional potential ULP, the union has also apparently told agents that, if they represent replacement players, the union will revoke their certification. (Apparently, the NHLPA certifies agents, as does the NFLPA and the MLBPA and the NBAPA. Players may use non-certified agents, but few do.) The NHL is apparently prepared to argue that this is something like an illegal secondary boycott--if you do business with this employer against whom we are on strike, we will not do business with you.

My reading of the law and of the stories about the NHL ULP filing is that a "normal" NLRB would dismiss it. Conditioning lockout or strike benefits on a union member's actually being locked out or on strike seems not only defensible, but wholly logical. It is not an attempt to deny employment to the union members, but to deny union benefits if they accept a job. The only significant issue is the recapture of past paid benefits; my guess is that the NHL wouldn't pursue that in any event. But with the current NLRB, all bets are off.

The agent thing is also interesting, and one on which I have a less steeled opinion. One issue is the basis for union certification of agents. Does it derive from the CBA, or is it a service the union provides to its members? ("Here is a list of agents who, so far as we can tell, competent and trustworthy.") If a service, then, again, I don't see any legal problem. All the union is saying is that we think any agent who would represent a replacement player is not trustworthy and therefore cannot be certified.

This seems to me to be a PR initiative, but basically frivolous. But this is not legal advice and should not be interpreted as such.


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