The weekend brought news of a tentative agreement in the NHL. The question remains, what took so long? Some knowledgeable commentators have already weighed in, with a focus on the negotiation strategies and tactics of the parties. For a good overview, see Professor Mark Thompson’s analysis.
I think we need to pay more attention to the legal framework for negotiations of North American sports. Legal rules around bargaining play a significant role in determining outcomes simply because rules shape behaviours at the bargaining table.
Most professional sports in North America are governed by U.S. federal law (the Canadian Football League being the major exception). Although applications have been made to Canadian labour boards by the NHLPA, those labour boards have declined to get involved.
U.S. labour law has not been effective generally in getting parties to resolve professional sports strikes or lockouts. Alexandra Baumann has written a good overview of the history of strikes and lockouts in professional sports that demonstrates this failure.
A labour relations dispute resolution system that results in turning to the courts and the serious discussion of a “nuclear option” of self-decertification is not effective or healthy. (For a good overview of these developments, see this commentary. And although the NHLPA proposed a “disclaimer of interest” as opposed to decertification, the effect is the same as decertification. For a discussion of disclaimer of interest see this article.)
The National Labour Relations Board deals with two issues in professional sports: unfair labor practices (mostly bad faith bargaining complaints), and the scope of bargaining. It is its role in bad faith bargaining complaints that is important in the current dispute.
The NLRB is apparently not nimble in addressing bad faith bargaining complaints and when an eventual settlement is reached it refuses to rule on the complaint because it is then moot. This has meant very little guidance to the parties on what is and isn’t acceptable in bargaining. For example, the NLRB has not ruled on whether a threat to decertify by a disclaimer of interest is bargaining in bad faith.
The Federal Mediation and Conciliation Service has also been involved in professional sports disputes, including the NHL dispute. Mediation services are voluntary and have had a good track record when used. In the 1992 NHL strike, an FMCS mediator was brought in and an agreement was reached shortly after. And the FMCS mediator was involved in the weekend’s tentative agreement. FMCS mediation in the 2004-2005 lockout was not successful.
Although binding arbitration has been suggested as a possible solution to the challenges of professional sports collective bargaining, this would be an inappropriate precedent. Binding arbitration has traditionally been used in the public sector for essential services or where the number of positions designated as essential limits the effectiveness of strikes. Without discounting the importance of hockey to some local economies and to fans, it is hard to put the NHL in the same league as a public service. The Canadian federal government has also used ad hoc binding arbitration for transportation disputes. Again, the NHL does not match any of the criteria used to justify such an intervention. In addition, binding arbitration requires either the agreement of both parties or legislation – both unlikely prospects.
Baumann makes the following plea for more expeditious NLRB rulings:
The best option for both parties would be an expedited NLRB claims process. This would help avoid litigation, which has been the faster method of ending work stoppages. It would also give parties more guidelines, while still retaining autonomy and freedom to structure the bargaining process in the way that is most beneficial to the league and its individual situation at the time. An expedited process would mean more rulings on what actions constitute bargaining in good faith, and thus can be used, and which actions do not. This would give the parties better guidance through the process of negotiating, without taking away control of the process from the parties, allowing them to make their own decisions of which tactics they should employ to try to gain the best possible position.
Another structural change would be to consider mandatory mediation or conciliation. For sophisticated parties, mandatory mediation may not be necessary, since one presumes they are aware of the benefits of mediation. A conciliation phase prior to a strike or lockout would require the parties to “make their case” to a third party prior to any action. Forcing parties to articulate their positions can sometimes unveil pathways to resolution. However, this would also require legislation, and is unlikely to get much traction in the current American political environment.
The good news is that if the tentative agreement is ratified we won’t have to think about NHL labour disputes until 2020 (or shortly before). By that time it is likely we will have new players at the table which may change the dynamic of negotiations.