Lawyers for players from Alberta’s two NHL teams told a labour relations board hearing panel today it has no choice but to declare the lockout illegal under provincial law.
"The lockout action is contrary to the laws of this province and no one gets to choose whether these laws apply to them in this province," Bob Blair, the players’ lawyer told the panel. "The law is the law is the law."
Blair said NHL players are special in that they work in a unique sports business but he stressed they are employees of Alberta companies, governed by Alberta law, and the NHL can’t arbitrarily take away their rights.
"Anyone who seeks to do business in this province is subject to the laws of this province and must order their business to comply," Blair said, adding this was an "inconvenient truth" that labour boards and lawyers have had to explain to American companies, and unions, in the past.
"It’s a fact of jurisdictional life," he said.
The NHL is seeking to dismiss the players’ association’s complaint. Its lawyer, Peter Gall, argued the NHL Players’ Association has always operated under national American labour law, with the consent of the players.
He said it is operationally impossible to have a league of 30 teams operate under numerous legal jurisdictions. He pointed out that all 30 teams – Canadian and American – have only ever bargained with the players’ association, and only under American labour law.
"The league is governed by U.S. labour law and always has been," Gall said. "That has been the legal regime that has governed all the disputes that have arisen between NHL players and the league."
Show of solidarity by players at hearing
Several Oilers players attended the hearing, including forwards Sam Gagner and veteran Ryan Smyth. Goalie Devan Dubnyk spoke on the players’ behalf before the hearing.
"We would certainly like to be at the rink, and practising and training and getting prepared for the season," he said.
"We've just said that we want to play and the NHL seemed to be in a pretty big rush to get the lockout going and we don't feel like they followed proper procedures, so we would like to get a deal done and hopefully the ruling goes our way and it will push them to get a deal done quicker."
Gall argued that if U.S. law does not apply, the Alberta labour code still should not apply because no collective bargaining takes place in Alberta that would bring the players under the code.
Gall went further, arguing that even if the board found Alberta’s labour code did apply to the relationship between the players and the league, it should decline to issue an order finding the league in breach of the code because it would be harmful to collective bargaining.
Twenty-one players from the Edmonton Oilers and Calgary Flames – including Jarome Iginla, Shawn Horcoff, and Michael Cammalleri– along with the NHL Players’ Association - have filed a complaint with the Alberta Labour Relations Board, arguing that a lockout would be unlawful in Alberta.
The NHL and the players are in a dispute over revenues. The owners want players to give them a bigger share. The NHL locked out the players last weekend. Training camps did not open today as scheduled and the league has already cancelled all pre-season games until Sept. 30th.
Alberta teams could be paid, still practice if NHPLA succeeds
If the players win at the labour relations board, they would legally be allowed to proceed as if there was no lockout. They would do everything but play in games, and collect their salaries, which kick in after the scheduled season opener on Oct. 11th. "It's something where if you have two teams that are practising and that are together and then the league comes back, obviously we have an advantage," Oilers defenceman Nick Schultz said during a practice earlier this week.
"I'm not sure how happy other teams would be about that and I'm not sure how happy the two teams in Alberta would be to be paying their players not to play any games."
In its written argument, the players say the NHL has shifted its legal position to suit its goal of locking out the players. It pointed out that the NHL had sought approval from the board to lockout the players, but withdrew its application on the eve of the hearing, even though it had previously told that, "we have never said (the code) does not apply to this dispute. We have applied for mediation under the code…."
If Alberta’s three-person labour relations panel accepts that the NHL is bound by the province’s labour code, the NHLPA argues the players can not be locked out.
"The language of the code could not be clearer," NHLPA lawyer Bob Blair writes. "Section 72 creates an absolute restriction on the ability of employers, employers’ organizations and persons acting on behalf of employers to lock out, cause a lockout or threaten to lockout."
NHL says it is not bound by Alberta’s code
Quebec’s labour board denied a request for emergency relief a week ago. But the Quebec board also rejected the NHL’s request to dismiss the case and told both sides there could be a future hearing.
It’s not known what precedent a win by the players would have in other provinces, or the United States. But it would almost certainly be raised as a precedent if the labour relations board in Quebec decides to hold another hearing.
The hearing continued into the night Friday and a board spokesman said it could proceed through the weekend. Whichever the case, the spokesman said the panel would not issue a ruling Friday.