Litigation appears likely in lockout
ST. PAUL, Minn. — Six weeks after NHL management and union representatives met across the bargaining table, neither side has blinked during a lockout that is vaporizing the 2004-05 schedule by the day and threatening to turn the season into an asterisk.
Each hour that passes without any negotiating raises the stakes in an increasingly bitter standoff that could draw into play the conflicting labor laws of the United States and Canada and instigate legal skirmishes.
Conventional wisdom among labor lawyers and scholars from both countries is that the NHL is positioning itself to declare a legal impasse that would pave the way for owners to implement a salary cap, invite the players back to work under management conditions and use replacements to fill the jobs of those who refuse.
“It’s economic warfare,” said Kevin Coon, a Toronto labor attorney who specializes in management. “The level of inactivity among the owners is a deliberate part of their strategy to show the players they’re not going to tinker around with any of the offers (the players) put on the table, and they are trying to shift the ground to operate from their position of strength.”
It is a classic weapon used in collective bargaining, but an inherently risky strategy that would ensure litigation.
The NFL and Major League Baseball employed replacement players to crush strikes with mixed results.
Still, NHL owners broached the subject during the run-up to the lockout, which started Sept. 15 and continues into its 36th day.
The league’s chief legal officer insists management wants to form a partnership with the players association, which refuses to negotiate a salary cap, not drive a stake through it.
“At some point in the process, we have legal rights available to us that would allow us to make a detailed proposal, negotiate that to impasse, and if it is not accepted, implement it unilaterally and open our doors for business,” said Bill Daly, who is negotiating for the owners. “That’s all theoretical. That is not something we have given consideration to at this point.”