• CBA Conspiracies

    by Tyler Dellow • December 15, 2012 • Hockey • 10 Comments

    I’m going to write something more lengthy about the NHL’s action against the NHLPA (link: PDF over the weekend for those interested but for now, there’s are two interesting portions that caught my eye:

    …Last night, the NHLPA Executive Committee authorized that a vote be taken over the next four days on whether to authorize the Union’s leadership to disclaim interest in its role as the exclusive bargaining representative of NHL players so that the NHL players could commence antitrust litigation against the NHL in order to secure a more favorable collective bargaining agreement.

    …on information and belief, on December 13, 2012, the NHL players began voting on whether to authorize the Union to disclaim interest in its role as the players’ exclusive bargaining representative at any time prior to January 2, 2013 in order to implement this tactic and commence antitrust litigation. This demonstrates the Union’s preparedness and intention to effectuate its threats of decertification or disclaimer and file antitrust litigation.

    I saw this being reported this afternoon and the curious thing is that I didn’t see the January 2, 2013 date or the four days thing reported anywhere. Aaron Ward reported: “No indication as to IF/WHEN vote even occurs.This is simply AUTHORIZATION. No more,no less.” Nick Kypreos just said that a vote was going to happen. Nobody was reporting anything about January 2, 2013. Nothing about a four day window for a vote. One wonders what the NHL’s source of information is.

    If you assume that the media would have reported this if they had known, an obvious source would be a player or an agent who’s friendly with the league. Indeed, it’s hard to think of any other potential source from which this information could have come. This would drive me wild if I was a member of the PA – it’s one thing to want to resolve this dispute and play hockey and loudly voice those opinions; it’s quite another to do something that undermines the PA’s position if, in fact, that’s what happened here.

    One other thing that caught my eye as I read this pleading: I’ve written lengthy pleadings before over a period of time or worked on pleadings with a group of people. As a general rule, you want your pleadings to flow, from one issue to the next, without repetition that confuses the reader, who wonders why they’re reading it again. When you’re coming back to them, it’s sometimes difficult – you don’t have what you’ve written fresh in your mind, which sometimes causes you to repeat or otherwise mess up what is otherwise a well organized pleading. I imagine that this is particularly true if you’re hurrying to get a pleading filed.

    In this case, paragraph 53 is oddly repetitive of paragraph 43. Paragraph 43 mentions quotes from Ryan Miller, Brad Richards, Shawn Thornton, Cory Schneider, Matt Stajan, Dan Clearly (spell check is a nightmare with legal documents, as any lawyer reviewing his material before oral argument and learning that “tortious” became “tortuous” at some point before the material was delivered to the court knows) and Chris Campoli on the topic of decertification.

    Miller and Schneider are discussed again in paragraph 53, along with a number of other players. It’s kind of a curious form of organization – the pleading would have read much better if paragraph 45, in which it’s alleged that the PA is seeking a mandate from the players to disclaim at any time prior to January 2, 2013, wasn’t plunked into the middle of it but were instead shifted further down into the 50s after the recitation of the NFLPA and NBPA’s use of similar tactics. It’s basically otherwise organized chronologically, which makes sense. I’ve jpg’d the page I’m talking about to make my point:

    It’s kind of odd how paragraph 41 doesn’t mention anything that happened after November 21, 2012, including last week in New York, when the parties seemed to be in a process of exchanging ideas, if not formal proposals, that narrowed the gap between them. If you read paragraph 42, you can see the same thing – you draft that paragraph without needing to know anything that’s happened after November 21, 2012. It’s very much a pro forma thing.

    The two quotes in paragraph 43 that you can see there, from Miller and Don Fehr, are from November 22, 2012 and November 24, 2012, respectively. Curiously, and inconsistent with the structure of the paragraph to that point, it then launches into a bunch of sub-points, in which it provides quotes from various other people. If one was going to organize the paragraph that way, one would have expected the quotes from Miller and Fehr to be similarly organized.

    Paragraph 44 then includes some quotes from a Bob McKenzie story dated November 22, 2012 about how NHLPA players have given “the green light to go down the decertification road” and that decertification is “unquestionably on the next page of the NHLPA playbook and that (decertification) is a viable option that may soon become reality.”

    The odd thing is that paragraph 45, in which the vote bombshell is dropped, is kind of inconsistent with paragraph 44. The full paragraph from McKenzie’s piece is as follows:

    After last night’s player call, it is fair to say that NHLPA executive director Don Fehr has the mandate or green light to go down the decertification road. That doesn’t necessarily mean decertification is imminent or that the actual process is underway, but multiple sources say it is unquestionably on the next page of the NHLPA playbook and that is a viable option that may soon become reality.

    If McKenzie’s right on November 22, 2012, that Fehr has a mandate, then it’s sort of bizarre that the NHLPA is having a vote now. Why have a vote if Fehr has a mandate? Who cares what Bob McKenzie said three weeks ago if you now know that there’s a vote coming? It adds nothing and is inconsistent with the December 13, 2012 vote information. Except…if you were drafting this a few weeks ago and putting in your best knowledge and information, McKenzie’s story would probably be included.

    If you go back and re-read the section headlined “The Current Dispute” at paragraphs 38-58, it kind of looks like the whole thing, with the exceptions of the sub-paragraphs on 43, paragraph 45 about the vote, and a weird sub paragraph at 54(e) (see below) that mentions the December 6 negotiations, could have been written on December 1, at the latest. The reference at 54(e), which is completely out of the blue starts, somewhat oddly with “After those recent negotiations ended on December 6…” despite there being no reference to December 6 anywhere close to that. It actually reads better with the sub-paragraphs at 43 and 54 not there and paragraph 45 is, as I mentioned kind of jarringly inserted. It would not surprise me in the least if this pleading was written, edited on or about December 6 after negotiations failed and then updated and filed again today.

    All of which is to say, I think you can make a reasonably well educated guess that the NHL started preparing for this step around November 22, 2012 and were just waiting for the right moment to strike. It seems likely that they got information from someone in the know that a vote was coming (including information that has not otherwise come into the public domain), plunked it into the pleading and ran down the courthouse. If the PA had a strategy to disclaim and get into a court of its own choosing, given the NHL’s apparent willingness to file sooner, whoever the leaker was may have caused the NHLPA some actual difficulty in terms of ultimately selecting the jurisdiction in which this will be litigated.

    Email Tyler Dellow at mc79hockey@gmail.com

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    10 Responses to CBA Conspiracies

    1. Rhys J
      December 15, 2012 at

      Not to undermine your analysis, but I think it would have been foolish to think that the NHL hasn’t been preparing for this step for months. It’s worth noting that Proskauer Rose has just been through nearly identical negotiations a little less than a year ago when dealing with the NBA and NBPA. As much as “NHL playbook” has been tossed around so much as to become little more than a buzzword, anticipating and planning your course of action just seems like doing your due diligence to me.

      Of course, Fehr’s obviously seen this dog and pony show before and has to have seen this coming. I have next to no legal knowledge, but my best guess as to what would happen next is that the NHLPA would file a counter-suit alleging that the league has violated the spirit of bargaining in good faith by not conceding any money or rights to the players in real terms – it’s a take away negotiation after all. But, like I said, I have no knowledge of the labour law so I really don’t know if this is even possible.

      The big question now is what will Fehr and the NHLPA do now? Continue down the same path and hope for a favourable ruling? Or take action and sue? Something else?

      • Justin
        December 15, 2012 at

        File in Canada. Jurisdictional clusterfuck.

    2. Guy
      December 15, 2012 at

      I would suggest going even one step further. Why wouldn’t the NHL leak information that the NHLPA is disclaiming? This would give them the PR cover to jump out and file their suit first.

    3. dextru@gmail.com
      December 15, 2012 at

      I would suggest going even one step further. Why wouldn’t the NHL leak information that the NHLPA is disclaiming? This would give them the PR cover to jump out and file their suit first.

    4. Clare A
      December 15, 2012 at

      Um…duh. Proskauer Rose’s point all along has been to get this to court, as a big part of what they do is bust unions. They want case law and either the league is okay with it or is “being led down the garden path” like they want people to believe Fehr is doing. The only real surprise is that it’s kind of sloppy.

    5. Gary
      December 15, 2012 at

      Obviously, this shows that the NHL’s plan was to back the PA into a corner so that they’d have to do it and prepared their lawsuit well in advance. Hopefully the judge sees through their BS. It’s clear to me that it’s the NHL who’ve bargained in bad faith here.

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    8. OkotoksLawyer
      December 17, 2012 at

      On the 4 day thing, I wouldn’t discount the possibility that the NHL has no inside information. It’s possible (I would even say likely) that from a pure tactical perspective they wanted to put this application forward and 4 days is the best combination of pure speculation and a reasonably likely period of time for such a vote they could hope to justify when the facts came forward.

      If I didn’t have inside information that’s what I would do. It’s just a pleading after all.

      • Tyler Dellow
        December 17, 2012 at

        If I didn’t have inside info, I’d have just gone with what the media were reporting. I wouldn’t be inventing things to add to it.

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