The NHL's Power Play

So the mediation has not worked and the NHL has decided to bring out their legal weapons.   The NHL made two legal filings ton Friday.  First, the NHL filed a class-action complaint in New York Federal Court aiming for declaratory relief that their lockout was legal.  This was a strategic move to get home field advantage in any legal dispute.  In the NFL lockout, the NFLPA players filed their antitrust lawsuit in the Eighth Circuit because that circuit has been characterized as union friendly as opposed to the Second Circuit, where the New York Federal Court resides in and is seen more pro-employer.  This mirrors the tactic taken by the NBA in their most recent lawsuit.  Could this be a prelude to the NHLPA union decertifying and bringing an anti-trust suit?

I would not be surprised if the NHLPA decertifies,  especially based on what the NHL has complained in their Unfair Labor Practice charge they complained of to the National Labor Relations Board.  The NHL complained that "by threatening to 'disclaim interest,' the NHLPA has engaged in an unlawful subversion of the collective bargaining process and conduct that constitutes bad faith bargaining under the National Labor Relations Act."

The NHLPA did not exactly deny the facts of the accusation, but moreso denied the law when they responded by saying that the "NHL appears to be arguing that players should be stopped from even considering their right to decide whether or not to be represented by a union."  The NHLPA had previous discussions on whether to issue a "disclaimer of interest" where the union walks away from representing players, with its primary advantage being that it is quicker than decertification and more informal.

It looks like the winter may be over before we see some action on the ice. 

Best wishes to Michael Weiner, MLBPA Head

MLBPA Executive Director Michael Weiner has begun treatment for a brain tumor.  Weiner plans to continue to work during his treatment and held a conference call with the player representatives of all 30 clubs where he told them they can and should call him if they need anything.  It is no wonder that he is so trusted and respected by the players, by higher ups in the Commissioner's office, and even by your humble blawger.  Mr. Weiner gave an informative and candid talk at the Sports Lawyers Association Meeting this past May.  He also was extremely patient as he answered all my questions when I approached him after his panel, which I greatly appreciate.   We wish Mr. Weiner a speedy and healthy recovery! 

The New MLB Draft

We are mere moments into the MLB Amateur draft and the Houston Astros with the first overall pick have already made headlines with their surprise first pick in Puerto Rico Baseball Academy's SS Carlos Corea. Is due to the new CBA?  Most reporters had pegged the Astros choice coming down to Byron Buxton and Mark Appel.   This is an interesting draft as it will be the first time that the draft pool bonus cap is utilized.  WEEI's Alex Speier wrote a great primer on the new draft rules. Let's take a look at those rules below the fold. 

Shameless Plug: Social Media in Sports: Can Professional Sports League Commissioners Punish 'Twackle Dummies'?

Please excuse this interruption to your regularly scheduled May Day reading as I shamelessly plug my article, which was recently published by the Pace I.P., Sports & Entertainment Law Forum. 

With celebrities, politicians, athletes, and non-athlete-kinda-Twitter famous-so not really celebrities, finding themselves in hot water due to some unfortunate comments they made via social media, I thought out loud---well---actually wrote out loud, as to whether professional sports league commissioners had the authority to punish their respective sports stars for tweeting bone-headed comments.   From my abstract:

Billy Hunter: "The Hunted" Pt. 2 Fisher Pres. Edition

Billy Hunter is being hunted again.  As you may remember, during the NBA Lockout there was a contingency of NBA Agents who formed Team Agent and tried to finagle the ouster of Billy Hunter as the NBPA Executive Director.  At the time, Union President Derek Fisher stood and propped Hunter up.  But it seems the tide changed during the lockout as mistrust between the two leaders grew and boiled over after Bloomberg reported that Hunter's family members and businesses had been paid $4.8 million by the union since 2001.  In response, Fisher called for an independent audit, which initially was signed off by the NBPA Executive Committee.

But the NBPA Committee quickly reversed course.  Hunter explained his family's involvement to the Executive Committee and then pushed the spotlight back onto Fisher and asked for his resignation due to the "numerous instances over the past six months, where Fisher engaged in conduct detrimental to the union, including acting in contravention of the players' best interests during collective bargaining, declining to follow the NBPA Constitution, and failing to uphold the duties of the Union President." 

Opening Day MLB Collective Bargaining Agreement Odds and Ends

Happy Opening Day one and all!  There is no greater feeling than that of opening day in major league baseball as each club and its fans enters a state of eternal optimism!  Who remembers who won last year's World Series?  Even the Cubbies can wait a few days before the eternal mantra of "wait until next year"starts being uttered in Wrigleyville.  Heck, with Major League Baseball and the MLBPA agreeing to add one more wild card per each league, they may even get to wait until late July before they throw in the towel.   Yes, as I described before, Commissioner Bud has gone wild card crazy.  Up against a stringent deadline and scheduling nightmare, the Commissioner's Office and MLBPA representatives were able to work together to come to an agreement for this season.  While the World Series and League Championship Series will remain, for 2012 only in order to deal with the scheduling nightmare, the parties agreed the five-game Division Series will begin with two home games for lower seeds, followed by up to three home games for higher seeds. Division Titles and Wild Card slots will also be decided by a one-game play-in if necessary, as opposed to the prior use of head to head records.  The way the playoff system will work is that the two wild card teams will play a one game play-off to decide who moves on to the division series.  This also creates a competitive incentive to win the division as division winners will have two off days prior to the start of their series, where as the wild card teams will likely have to burn an ace pitcher to make it to the next stage.  In lauding the deal, Cardinals Manager Mike Matheney pointed to how exciting the last day of the season was last year and how that this system can guarantee that type of excitement every year.

The Continued Interest in Professional Athletes' California Workers' Comp Claims

The NFL and the NFLPA is in a world of hurt these days (pun intended).  With accusations flying that  NFL Coaches offered "injury bounties" and legal claims being filed alledging that the most popular professional sport in America did not do enough to provide for the safety of its forefathers, it is no wonder that my blawg post on professional athletes workers compensation has been one of my most read articles.  In that September 22, 2011 post, Attorney Greg Grinberg, writer and editor of WCDefenseCA, succinctly explained why California has become the popular go-to jurisdiction for professional athletes to file their worker's compensation claims. 

Attorney Grinberg has continued this discussion with a series of in depth blawg posts, which further explore this issue.  Today, he discussed the Seminal Case: Injured Workers’ Insurance Fund of the State of Maryland v. Workers’ Compensation Appeals Board (2001) 66 Cal. Comp. Cases 923 (writ denied) involving Baltimore Colt Cleveland Crosby, which held that even though Crosby played only one game in California, he still was entitled to workers' comp. under California's labor code.  I encourage all readers who are interested in this subsection of professional sports law to head on over to WCDefenseCA, to participate, and to read Attorney Grinberg's "Visiting California for Workers' Comp" series. At the conclusion of his series, I plan on dedicating a post summing up Attorney Grinberg's posts while also providing my own opinions and interpretations regarding the issues he discusses. 

What happened to the NFL's HGH Testing Policy?

Penalty Flag! Excessive Celebration!  
The NFL and NFLPA should have taken the advice from"Pulp Fiction" character, Winston Wolf', instead of being so quick to congratulate themselves on being the first professional sports league to collectively bargain for Human Growth Hormone (HGH) testing.  Much to Commissioner Goodell's displeasure, the NFL and NFLPA were not able to implement HGH testing in the just concluded NFL Season. Even though they agreed to start testing for HGH in principle, however an HGH test has yet to be agreed to in any particularity.

During a pre-Super Bowl press conference, NFLPA Executive Director DeMaurice Smith's stated that HGH testing discussions are ongoing but there is no guarantee that an agreement will be reached before the 2012 NFL season. In fact, Smith declared:

"No one will bully us into a test"

The Legal Costs for Super Bowl XLVI

Yesterday's Super Bowl definitely was an exciting finish to an NFL Season that was on the brink of never occurring.  Remember that lockout that threatened to wipe out the season?  Well, here's a friendly a reminder I am sure most labor lawyers would be interested in.   The average Super Bowl ticket cost  $1,999.00, which is small beans in comparison to the amount that the NFL Players Association paid in legal fees incurred this past year. 

The Am Law Daily took an in depth look at how much was spent in legal costs leading up to the NFL lockout from March 1, 2010 through February 28, 2011.  The NFLPA, like all other Unions, have to file public LM-2 forms with the National Labors Relations Board.  The NFLPA spent approximately $63.2 million on representational fees including outside legal fees, and an additional $1.7 million on lobbying and political activities.  The top three law firms to rake in legal fees Latham & Watkins ($3.1 million), Dewey & LeBoeuf ($2.9 million), and Patton Boggs ($948,983).   DeMaurice Smith, former Latham and Patton Boggs Partner, and who is the current NFLPA Executive Director, did not do too shabby for himself either.  After agreeing to accept a $1 salary while the lockout was going on, Smith collected $1.5 million in back pay and an additional $1 million bonus for a job well done in resolving the labor quagmire. 

It will be interesting to see how large the legal fees were for next years disclosure that will include fees earned related to the lockout that occurred from March 2011 through July 2011.  I'll also provide a rundown of the NBPA and MLBPA's legal costs related to their CBA expenses once they become available.  However, Am Law Daily did a good job estimating their respective (MLBPA and NBPA) legal costs based on past disclosures. 

Bud Gone Wild (Card)

Bud Selig has a fever and the only cure is more wild cards.  Selig has taken a definitive stance that two additional wild card teams will be added to THIS upcoming season's postseason.  However, the MLBPA and Executve Director Michael Weiner don't think we should not hold our breath.

"The 2012 season was not designed to accommodate an extra round of playoffs," Michael Weiner, executive director of the Major League Players Association, told USA TODAY. "We're having discussions to see if it can work. We'll decide in the next month or so if we're able to do it." 

ESPN's Jayson Stark reported that others around the league also have their doubts. He reports that General Managers, TV Executives, and even Selig's own people think that it will be extremely difficult to rearrange the schedule to allow for contingencies, such as potential tie-breakers, and the additional wild card round.  MLB and MLBPA already decided to eliminate their archaic tie-breaking formula, which was based on such scientific determinative outcomes of a "coin flip"; now, all division ties will be broken on the playing field.  Time has been allotted for these potential tie breaking games for this season, but it is becoming difficult to find the time needed for the wild card round due to travel and prevent a snowy world series.   

Realignment and It Feels so Good Pt. 2: "Cold as Ice"

In part 1 of my realignment series, I discussed Major League Baseball's future realignment, where the Houston Astros will move from the National League Central Division to the American League Western Division.  Major League Baseball and the Major League Baseball Players Association agreed to this as part of their newly ratified collective bargaining agreement.

Like Major League Baseball,  the National Hockey League wanted to realign their divisions for the 2012-2013 season.  In December, the NHL's Board of Governors were forced to realign due to the Atlanta Thrashers move to Winnipeg.  It did not make much sense to keep the Canadian team in the Southeast division so they did a one-for-one swap moving the Jets into the Western Conference.  Moreover, the NHL Board of Governors also voted on a complete overhaul plan that made even more sense in their eyes.  The plan was to realign the league into a 4-conference setup where the top four teams in each conference would make the playoffs and the initial two playoff rounds would consist of inter-conference match-ups.  However, much to the chagrin of the NHL's Board of Governors, the proposal was rebuffed by the National Hockey League Player Association and their new executive director, Donald Fehr.

Realignment and It Feels so Good... Pt. 1

I took my blogging hiatus right as I was in the middle of my top 10 issues most likely to be addressed in the new MLB Collective Bargaining Agreement.  As I easily predicted--- I was not able to get through all top ten; in fact, I made it through three...   Nonetheless, number four on my list was going to be a discussion on REALIGNMENT!

As most of you know, in 2013, the Houston Astros will be moving to the American League West.    However, this came at a cost to ex-Astros owner Drayton McClane, who ended up having to take a discount on the sale of the team to persuade incoming owner Jim Crane to sign off on the move.  But why would Commissioner Selig sign off (some might say orchestrate) a transaction that ended up lowering the team's sale value.  Let's put on our tinfoil hats and cue the conspiracy theory...

I've fallen and I can't get up...

Kidding... But really, it has been a long while since I last posted.  A lot has happened since I left last---as I predicted, the NBA followed MLB's lead in signing new collective bargaining agreements and we were treated to a Christmas miracle with a NBA tip off (even if David Stern was the Grinch that stole CP3 from the Lakers).  I do apologize for my lack of action regarding these events, but unfortunately the holidays, my victorious march in the Constitutional Daily Fantasy Football League, and that crazy thing called "life" took up too much of my precious spare time.   I have said Kaddish and sat shivah for the loss of my beloved Green Bay Packers and I am ready to keep you up to date on all sports labor and employment law developments.  Happy New Year!  

On deck: "Realignment and It Feels so good..."

edit: it is with great irony, and also unintentional, that I decided to resurrect this blawg on the eve of SOPA blackout day...