The NHL Lockout: Questions for International Labor Law

Will the Canadiens be paid during the lockout?

International law is a tricky concept to tackle. If law implies governance, then, by definition, law applies only to a governed region. And since no two countries operate under the same governing body, international law is ultimately toothless.

But sometimes international law must be addressed, as in instances in which a multinational legal issue arises. The ongoing NHL players’ lockout presents such a case, providing insight into the convoluted arena of international law, namely with respect to labor and employment.

First, let’s lay the groundwork for the issue at hand. The National Labor Relations Act (NLRA), which serves as the chief authority on U.S. private sector labor law, maintains federal jurisdiction over matters of interstate commerce. The NHL, whose operations depend upon commerce across states (i.e. games), therefore falls under the purview of the NLRA. Under the NLRA, both employers and employees may use economic weapons, such as strikes and lockouts, during collective bargaining negotiations.

But what happens when interstate commerce becomes international commerce? Seven of the thirty NHL teams are based in Canada, a notable proportion considering that the three other major sports leagues contain in total only two Canadian teams. Technically, despite bargaining under the NLRA, these owners and players are subject to Canadian law. So where does our conception of labor law fit into this hazy framework?

Canada, of course, does not care about the NLRA; it functions pursuant to its own codes and laws. For one, up north, labor law is strictly provincial in nature. According to the Vancouver Sun, under Quebec law, an employer may issue an employee lockout only if those employees are members of a board-certified union. The NHLPA is not certified by Quebec’s labor relations board, potentially rendering the lockout impermissible in Quebec.

Recently, players for the Montreal Canadians have taken advantage of this clause to seek an injunction against the NHL lockout in Quebec court. If granted, the labor relations board could enjoin the lockout for Montreal players only, granting them regular pay and benefits while players for the other twenty-nine teams remained locked out. In the history of NHL labor relations, however, not once have players tried to use the Canadian court system to enjoin a lockout. The very fact that the NHL and NHLPA have bargained under the NLRA for decades may suggest that these player efforts are nothing more than unfounded distractions.

Even if courts in Quebec enjoin the lockout and compel Montreal ownership to pay its players, there is little evidence that this maneuver on its own will have any impact on widespread bargaining issues. But this viewpoint may be shortsighted, as a successful injunction could have a palpable impact on the axis of bargaining power in player-owner negotiations.

If the players are indeed successful in Canadian court, that success could perhaps prompt players on other Canadian teams to similarly challenge the lockout in their respective provinces. In fact, Edmonton Oilers and Calgary Flames players have already attempted to do so (albeit unsuccessfully, though they are currently appealing the decision).

What is crucial here is the inverse relationship between the number of successful “personalized” injunctions and owner bargaining power. With each Canadian team’s success in court, owner bargaining power is slashed, if only marginally. If all Canadian teams were victorious, however, a considerable number of owners would be forced to pay players in vain, since the ongoing lockout for U.S. teams would preclude games from being held. In such a case, a sustained lockout makes little, if any, economic sense for owners. And with nearly a quarter of owners placed in this position, owners on the whole may soften their bargaining stance, especially in an industry where economic interdependence is so pronounced.

Of course, this scenario requires many hypothetical situations to materialize. It appears highly unlikely that all Canadian players will seek to enjoin the lockout, let alone succeed in this endeavor. Nonetheless, the ongoing NHL lockout provides for an interesting study of international issues as they apply to labor and employment law.