Legal Basis For NHLPA's Rejection of Realignment & Why Not Declaration of War

The NHLPA has rejected the NHL's proposed realignment. The NHL was looking to move from six divisions to four conferences.

The NHLPA has said that it did not consent to the realignment as it was concerned that it could lead to more onerous travel for its members. Donald Fehr and company were also concerned about the disparity in chances of making the playoffs between the smaller and larger divisions.

Here's an excerpt from the NHLPA's press release on the matter:

"The travel estimation data we received from the League indicates that many of the current Pacific and Central teams, that have demanding travel schedules under the current format, could see their travel become even more difficult. On the playoff qualification matter, we suggested discussing ways to eliminate the inherent differences in the proposed realignment, but the League was not willing to do so."

NHL Deputy Commissioner Bill Daly wasn't too pleased. Here's some of what he said:

“The travel issue is not really an issue at all. We put them in touch with (NHL VP/Scheduling, Research & Operations) Steve Hatze-Petros, who believes, given the new matrix, he can actually make travel more efficient...There's always going to be inequities in a playoff format.”

Daly added: “There’s no system that’s perfect. My concern is that those stated concerns were really just pretext for denying consent because the players’ association felt this was an issue that should be addressed in the broader collective bargaining negotiations that are about to take place".

Legal Basis to Reject Realignment

Article 30.4 of CBA provides as follows:

The NHL...shall not, during the term of this Agreement...amend or modify the provisions ...of the League Rules or any of the League's Playing Rules in existence on the date of this Agreement which affect terms or conditions of employment of any Player, without the prior written consent of the NHLPA which shall not be unreasonably withheld.

Since realignment affects the "conditions of employment" for players, the NHL had to get the NHLPA to sign off on realignment.

The same provision of the CBA says that the Union can't unreasonably withhold its consent. The NHL contends that the NHLPA did just that and accordingly is in breach of the CBA.

On the flip side, the basis for the NHLPA's rejection is that it wanted more information from the NHL as to how realignment would affect travel and the playoffs. The NHLPA wanted to make a reasoned decision as to whether the proposed realignment was good for its players, and given what it saw as insufficient information on the impact of the proposed plan, decided to withhold its consent. 

Unreasonably withholding consent is going to be an objective test or analysis. The question is whether, based upon the information, was it reasonable for the NHLPA to act as it did? The decision does not need to be right - just reasonable.

The decision to reject the new format was certainly a significant inconvenience for the NHL. However, based upon the available information, I'm not ready to say that the Union acted unreasonably.

This Shouldn't Be A Surprise

There have been many people attacking the NHLPA for its rejecting the new plan.

How does this come as a surprise?

On the eve of CBA negotiations, it wouldn't be a particularly smart move for the NHLPA to consent to realignment. By doing so, it would forfeit leverage. The NHLPA has to try and secure as much leverage as it can for the CBA talks, and this is one way. Does this represent significant leverage? No. However, it's something.

This was not, however, a declaration of war by the NHLPA. It was simply taking a thoughtful and prudent approach to the issue of realignment, while keeping its eye on the upcoming CBA negotiations.

So yes - CBA negotiations have already started (before getting started). And yes - there are serious issues to hammer out including the players' current 57% share of revenue (inflated when compared to MLB at 47%, NFL at about 48% and NBA at about 50%). There is also the salary floor to deal with.

Still, this doesn't mean we are headed for a lockout. The NHL is enjoying unprecedented growth and it just signed a big television deal (relatively speaking - NFL TV revenue for 2014 will be $7 billion vs. $200 million for NHL). It understands that a labor disruption could put the brakes on its forward momentum and could irreparably harm the game.

Frankly, if the Union is looking for leverage it's just that - the success and growth the NHL is currently enjoying.

What we are seeing now is quite common in the field of labor law. Just part of the bargaining process - that is filled with ebbs and flows.

So talk of a lockout is premature - very premature.