By Sahil Jani
Hockey. Canada’s passion. America’s afterthought. Some might even claim it be a relic of the Cold War. Regardless your feelings towards the sport, the current lockout imposed by the National Hockey League poses an interesting conundrum in relation to the legal standard of choice when it comes to multi-national sporting leagues. The NHL lockout—with games currently suspended until November 1—is in limbo over several key issues regarding, for starters, the veracity of the claims in support of said lockout. The NHL and National Hockey League Players Association (“NHLPA”) have both previously utilized Canadian and US law to enforce and adjudicate disagreements through their storied history, culminating into the mess we see today. The Alberta Labour Relations Board released their October 10 decision in support of the NHL’s position for a lockout. But was it the right decision?
Which Authority Has Jurisdiction?
What can be attributed to ostensibly a strategic decision, rather than one of uniformity, certain Canadian and US authorities have jurisdiction over disputes between the NHL and NHLPA. The doctrine of primary jurisdiction “applies where a court has jurisdiction of the action but faces an issue where an agency’s expertise on the issue, not within the court’s general competence, might warrant the court staying the action while it refers the issue to that agency.” Brady v. NFL, 779 F. Supp. 2d 992, 1013-1014 (D. Minn. 2011). Here, the Alberta Labour Relations Board (“ALRB”) and the United States National Labor Relations Board (“NRLB”; via the National Labor Relations Act) have both a genuine claim for ownership of this issue. In a decision (“An application brought by the National Hockey League Players’ Association…”)The ALRB specifically mentions that they “received lockout vote applications on behalf of the NHL…despite the NHL filing for a lockout with the NLRB,” indicating the presence of mind for these professional organizations to utilize all legal avenues available to them. National Hockey League Players’ Association v Edmonton Oilers Hockey Corp, CanLII 58944, 3 (AB LRB, 2012). One cannot be surprised that a matter of jurisdiction is subsequently questioned by the losing party in such a case. Ironically, the purpose of primary jurisdiction is to “ensure uniformity of results” and where the circumstances demand “the expert and specialized knowledge of the agencies involved.” United States v. Western Pac. R.R. Co., 352 U.S. 59, 64 (U.S. 1956).
The Cobra Effect
Not surprisingly, the noncommittal nature of both the ALRB and NRLB not only keeps both parties relevant, but quite significant in affording a “second avenue” of application for the NHL and NHLPA. The reasoning behind the genesis of the NRLA was to protect the rights of employees and employers, to encourage collective bargaining, while ensuring that the general welfare for those contributing to US economy was sufficiently met. NATIONAL LABOR RELATIONS BOARD, NATIONAL LABOR RELATIONS ACT (2012). But the applicability of two governing organizations has led to a burgeoning of the cobra effect, where a plausible solution to an issue—here, a labor dispute—has led to a problem that has the potential to make things worse. We know the ALRB classifies this case as “sui generis,” or “of its own kind of class,” in an effort to mitigate the novelty of its ruling by effectively defenestrating precedent, while cleverly eschewing the need for any outside participation by any third party (read: NLRB). Edmonton Oilers Hockey Corp., at 2. We’ve seen this type of latent activity lead to further disputes before (as evidenced in the NFL lockout scenario).To clarify, this is not an argument to publicize the vindication or vilification of a particular side, but to highlight the difficulty of managing venue and jurisdictional bias.
Brady v. NFL
The NFL and NFLPA have a long history of litigation over collective bargaining agreements stemming decades. Brady v. NFL, 640 F.3d 785, 787 (8th Cir. Minn. 2011). Understandably, both parties wish to secure rights and obligations best suited to their position. In their most recent dispute, like in Edmonton Oilers, the NFL wished to lockout the Players in order to proffer economic leverage over negotiations. The NFL used the auspices of the Norris-LaGuardiaAct to buttress support for a lockout against the union-represented Players to preclude an injunction ordering the contrary. Brady, 640 F.3d 792. In response, the Players decertified their union and brought forth an antitrust suit against the NFL, practically, an identical claim in a round-about fashion to avoid the Act. But one of the justifications for the creation of the Norris-LaGuardia Act in its “broad language” was to “take out the federal courts ‘out of the labor injunction business.’” Jacksonville Bulk Terminals, Inc. v. Int’l Longshoremen’s Ass’n, 457 U.S. 702, 712, 102 S. Ct. 2672, 102 S. Ct. 2673, 73 L. Ed. 2d 327 (1982) (emphasis omitted) (quoting Marine Cooks & Stewards v. Panama S.S. Co., 362 U.S. 365, 369, 80 S. Ct. 779, 4 L. Ed. 2d 797 (1960)). This was done intentionally to limit the scope of multi-jurisdictional locales (ie. eliminating the courts from jurisdiction would allow for the NLRB to take sole control over adjudication) which if not done, in some form or another, could contribute to the desalination of uniformity among its holdings. And indeed this did happen when the NLRB was bypassed for a court decision. The lower court’s injunction to estop the lockout was overruled by the US Court of Appeals for the Eighth District. The injunction order was stayed and an employer-friendly lockout ensued. Brady at 794.A similar situation occurs in Matthews v. National Football League Management Council, 688 F.3d 1107, 1116-1117 (9th Cir. Cal. 2012). Bruce Matthews, a former NFL player, filed for workers’ compensation in California where the labor code is construed more liberally than his contractually obligated state of Tennessee. Because CA law allowed for the “minimum contacts” test, allowing for filing there if there was sufficient contact with the state, Matthews was presented with a “choice of law” (based on the jurisdiction selected) circumstance. The court was forced to adjudicate in determining the appropriate venue because of competing jurisdictions and opted to hold for his contractually bound obligations to file a claim in Tennessee.
Jurisdiction as a Matter of Public Policy
Venue selection—and by extension, jurisdiction—is important not because of geographic filing convenience to the moving party, but because it best presents the ability for a particular entity to prevail in court. The NHL and NHLPA “have never established definitely which jurisdiction’s labour laws govern their relationship,” naturally leading to confusion over which board is “empowered to adjudicate their disputes.” Edmonton Oilers, CanLII 58944 at 2. The Alberta Board was very careful in declaring that this particular case “involves a unique set of circumstances involving a unique work environment” which is “not intended to have broader application.” Id. at 3. But this inherently does have a broader implication in multi-jurisdictional politicking. It’s not in the best interest of public policy for a ruling body when faced with the decision to recuse itself from a particular case to fail to do so because of the protections offered to it by a lack of administrative oversight. This author believes that in cases where a secondary authority is best suited to presiding over a particular issue, there ought to be a heightened sense of justification to remove the authority from its duty. In the instant case, the ALRB recognized the difficulty of the particular circumstances, but opted to hear the arguments anyways. Fortunately, they took care not to greatly expand the powers given to the organization.
Final Considerations
Ultimately, the ALRB held in favor of the lockout. But not exactly. The ALRB chose to decline to adjudicate on the manner claiming that there is “no dispute the lockout declared by the NHL is legal and pursuant to the NLRA,” but then also went on to state “we are of the opinion this is a case where it makes labour relations sense to exercise our discretion not to make a declaration of unlawful conduct and not to issue any remedy.” Edmonton Oilers, CanLII 58944 at 12. The concluding arguments prima facie from the ALRB indicate a strong consideration to not have to deal with questions such as: “Do Canadian labor laws apply to the US?” (or visa-versa); or “Is it amendable to bypass US legislation to hear a case in Canada?”; or for a more practical matter, “If the lockout is not deemed valid (at least in Canada), is it reasonable for US teams to have to travel to Canada to solely play the Canadian teams?”
Was this the right decision? Probably. But only because anything else would’ve opened up a firestorm of legal complexities and arguments. Plus, someone has to think of the fans.
