'No one gets to choose:' Oilers, Flames players want NHL lockout ruled illegal

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Edmonton Oilers' Ryan Smyth crowds Calgary Flames goalie Miikka Kiprusoff in NHL hockey action in Edmonton January 21, 2012. THE CANADIAN PRESS/John Ulan

EDMONTON - The NHL players' union says the argument is simple: Alberta labour laws apply to the Edmonton Oilers and Calgary Flames.

The NHL Players' Association was in Edmonton on Friday to try to get the Alberta Labour Relations Board to declare the current lockout illegal.

NHLPA lawyer Bob Blair told the panel that the teams are Alberta businesses, so provincial labour laws have to be followed.

"No one gets to choose what labour laws apply to them in this province," Blair said. "The law is the law is the law."

He argued that players from the Oilers and Flames have never agreed to forgo their rights under the Alberta Labour Code.

"It applies to every employer and employee. That is the starting point."

A lawyer for the NHL argued that it's impossible for a league spanning two countries to operate under different laws for each franchise. Peter Gall pointed out that 23 of the 30 teams are in the United States, where labour laws are federally regulated.

The league has always operated under U.S. labour law, he said. The board heard U.S. Federal Court is the final arbiter of any grievances under the contract.

"So all of the players on all of the teams have been included in one bargaining unit," Gall said. "The NHLPA has never bargained with individual teams. It has only bargained with the NHL."

The labour board deferred a decision on the hearing to a later date.

Bill Daly, the league's deputy commissioner, told the panel that there's never been any individual bargaining between players and their teams.

He said it's important that all teams operate under the same rules.

Blair countered by saying the way the league and union have operated in the past is irrelevant.

Blair also pointed out that the NHL had itself applied for a mediator under Alberta labour over the summer in order to ensure it complied with the letter of the province's law.

Daly responded the league wasn't certain as to its legal position in the province. Although it applied for a mediator, it said in its application that it didn't think meetings would have to be held.

"You didn't want to meet with him," said Blair. "You just wanted him in and out."

"That's not how I would necessarily read it," said Daly. "We were going through an Alberta Labour Code process at the time."

Alberta law specifies a mediator must be appointed and given 14 days to work before a lockout vote can be held. The NHLPA argues the league pulled the plug on the talks after only three days.

It's unclear what might follow if the board were to rule in favour of the NHLPA's request, but Daly said he couldn't imagine the fallout if that were to happen.

"It would be extremely destabilizing to how we do business and how we conduct this sports league," he said. "I don't know how we would proceed in the face of separate units in Alberta."

About half a dozen players attended the hearing, including Oilers forward Sam Gagner, goaltender Devan Dubnyk and veteran Ryan Smyth.

Last week, players from the Montreal Canadiens launched a similar case in Quebec and the labour relations board there turned down their request for a temporary injunction against the lockout. But it also ruled that more hearings are needed to make a final decision on the application. No date for those hearings has been set.

The lockout is nearly a week old and there have been no formal talks between the two sides since Sept. 12. Training camps were to have opened Friday. The league has already cancelled pre-season games through Sept. 30 and several players have signed with teams in Europe.

The two sides remain far apart on key economic issues.

The NHL believes too much money is being paid out in salaries and has proposed a system to address it. Their most recent offer called for the players' share in revenue to be set at 49 per cent next season — down from 57 per cent in the deal that expired last weekend — and proposed that it drops to 47 per cent by the end of the six-year deal.

The union tabled an offer where the salary cap would be set to fixed increases of two per cent, four per cent and six per cent over the next three years. The system would then revert to a percentage-based system for the final two years.