![schools can and cannot
Sagas is with the Department of Tourism, Recreation and Sport
Management and Faculty Athletics
Representative, University of Florida, Gainesville, FL. Wigley
is with the Byrd School of Business,
and Faculty Athletics Representative, Shenandoah University,
Winchester, VA. Address author cor-
respondence to Michael Sagas at [email protected]
40
W rong Things Right 41
do when operating their programs related to such things as
recruiting, personnel,
eligibility, and the playing season for their sports.
At the Division I level, the regulations and bylaws that govern
the association
are created by the membership of the association though a
legislative process that
submits proposals for new and revised rules to the Legislative
Council, which
serves as the primary legislative body of Division I. The
Legislative Council is
populated by representatives of member institutions including
athletic department
administrators, Faculty Athletic Representatives, and
conference level administra-
tors. Legislation that is approved by the Legislative Council is
sent to the NCAA
Division I Board of Directors (which is populated by member
institution presidents
and chancellors) tor approval to become effective, unless the](https://image.slidesharecdn.com/lab10soilgeographyinthismoduleyouwillidentifyandexpl-221025203756-f9039295/85/LAB-10-SOIL-GEOGRAPHYIn-this-module-you-will-identify-and-expl-docx-15-320.jpg)
![hockey season,
including the playoffs, a first in the history of professional
sports in North
America.8 This second lockout led to the signing of the CBA.
This sector-based collective agreement, which applies across
North
America, unilaterally stipulates the great majority of working
conditions for all
NHL players, regardless of the team for which they play.
Moreover, it directly
regulates the negotiations of individual employment contracts
between players
and teams by imposing a whole set of standards covering
various aspects of
the employment relationship.9
3. Melanie Aubut, When Negotiations Fail: An Analysis of
Salary Arbitration and Salary Cap
Systems, 10 SPORTS LAW. J. 189, 190 (2003).
4. Id.
5. Id.
6. See generally NATIONAL HOCKEY LEAGUE,
COLLECTIVE BARGAINING AGREEMENT
BETWEEN THE NHL AND THE NHLPA (2005), available at
http://www.nhlpa.com/About-Us/CBA/
[hereinafter CBA].
7. Aubut, supra note 3, at 194.
8. See generally Trois Mois de Lock-Out en 1994-1995,
RADIO-CANADA.CA, http://archives.
radio-canada.ca/sports/hockey/clips/9066/ (last visited Nov. 1,
2009).](https://image.slidesharecdn.com/lab10soilgeographyinthismoduleyouwillidentifyandexpl-221025203756-f9039295/85/LAB-10-SOIL-GEOGRAPHYIn-this-module-you-will-identify-and-expl-docx-70-320.jpg)
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Beyond the curious fact that a team—the employer—has the
right to trade
one of its own players—the employee—to another competing
team without
this player having the right to oppose this decision,10 the
system that has been
put in place is certainly of relevance to anyone with an interest](https://image.slidesharecdn.com/lab10soilgeographyinthismoduleyouwillidentifyandexpl-221025203756-f9039295/85/LAB-10-SOIL-GEOGRAPHYIn-this-module-you-will-identify-and-expl-docx-72-320.jpg)
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has made it possible to go beyond the inherent territoriality of
labor law,
whether state-based or conventional, and the inherent
limitations of its
effectiveness. Moreover, this system indisputably has
transnational and multi-
employer normative import. Lastly, the binding effect and
enforceability of its
rules are ensured by an arbitration mechanism binding the
parties.
In addition, in regards to the theory of labor law, the system
described
here involves many pertinent aspects worth reflecting upon.
The system is,](https://image.slidesharecdn.com/lab10soilgeographyinthismoduleyouwillidentifyandexpl-221025203756-f9039295/85/LAB-10-SOIL-GEOGRAPHYIn-this-module-you-will-identify-and-expl-docx-80-320.jpg)
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be relocated.42
exclusive bargaining representative of the present and future
Clubs of the
NHL . . . .”37 Thus, the NHL is a common legal entity that the
team owners
created in order to set up a professional hockey league. It is
also, according to
this definition, the exclusive representative of its present and
future teams for
the purposes of collective labor negotiations with the NHLPA,
and as such, it](https://image.slidesharecdn.com/lab10soilgeographyinthismoduleyouwillidentifyandexpl-221025203756-f9039295/85/LAB-10-SOIL-GEOGRAPHYIn-this-module-you-will-identify-and-expl-docx-88-320.jpg)
![president, and appointed Alan Eagleson, an influential player
agent at the time,
as its executive director.41 According to the archives, on
Eagleson’s advice,
37. CBA, supra note 6, at pmbl.
38. “[E]mployers’ association: a group organization of
employers having as its objects the study
and safeguarding of the economic interests of its members, and
particularly assistance in the
negotiation and application of collective agreements.” Quebec
Labour Code § 1(c).
39. National Hockey League, FUNDINGUNIVERSE.COM,
http://www.fundinguniverse.com/
company-histories/National-Hockey-League-Company-
History.html (last visited Oct. 27, 2009).
40. GIL STEIN, POWER PLAYS: AN INSIDE LOOK AT THE
BIG BUSINESS OF THE NATIONAL
HOCKEY LEAGUE 37 (1997).
41. Id.
42. Id.
43. NHL Players Ass’n (NHLPA), About the NHLPA,
NHLPA.COM, http://www.nhlpa.com/
About-Us (last visited Jan. 20, 2008) [hereinafter NHLPA].
44. Id.
41. Boston: Ed Johnston; Chicago: Pierre Pilote; Detroit: Norm
Ullman; Montreal: Bobby
Rousseau and Jean-Claude Tremblay; New York: Rod Gilbert,
Harry Howell and Bob Nevin;
Toronto: Bob Pulford. Heather Engel, History of NHLPA](https://image.slidesharecdn.com/lab10soilgeographyinthismoduleyouwillidentifyandexpl-221025203756-f9039295/85/LAB-10-SOIL-GEOGRAPHYIn-this-module-you-will-identify-and-expl-docx-90-320.jpg)
![powerful Teamsters Union and seek certification under
Canadian labor laws.45
The owners were obviously against this proposal, but as pointed
out by
one observer, the “notorious Teamsters Union was beginning to
cause some
rumblings with the league, [so] Eagleson seemed to be the
lesser of two
evils.”46 Consequently, the NHLPA was recognized by the
team owners and
thus gained its present status as, to use the words of the CBA
itself, “the sole
and exclusive bargaining representative of the present and
future Players in the
NHL.”47
It is interesting to note that the parties appear to have chosen a
United
States law, the National Labor Relations Act (NLRA),48 to
govern their labor
relations.49 The United States Congress adopted this law in
accordance with
its authority to govern trade between states, as set out in the
United States
Constitution.50 A National Labor Relations Board decision51
established that
the NLRA has jurisdiction over and can be applied to
professional sports
leagues in the United States, including the NHL.52 By
recognizing the
principle of freedom of association,53 the NLRA not only
allows players to
form their own association and negotiate their working
conditions collectively,
but also implicitly, to exercise the right to strike, since it](https://image.slidesharecdn.com/lab10soilgeographyinthismoduleyouwillidentifyandexpl-221025203756-f9039295/85/LAB-10-SOIL-GEOGRAPHYIn-this-module-you-will-identify-and-expl-docx-93-320.jpg)
![specifies that they
can engage in other concerted activities for the purpose of
collective
bargaining.54 Moreover, the extraterritorial scope of this law
leaves no doubt
as to its applicability in Canada.
cfm/history_of_nhlpa_executive_directors.
45. NHLPA, supra note 43.
46. James Baillie, An Investigation into the Collective
Bargaining Relationship Between the
NHL and the NHLPA, 1994-2005 17 (August 2005)
(unpublished Master’s thesis, Queen’s
University) (on file with the Industrial Relations Center,
Queen’s University), available at
http://irc.queensu.ca/articles/an-investigation-into-the-
collective-bargaining-relationship-between-the-
nhl-and-the-nhlpa-1994-2005.
47. CBA, supra note 6, at pmbl., art. 2.1. Article 2.1 restates
similar language found in the
Preamble. See generally id. at art. 2.1.
48. National Labor Relations Act, 29 U.S.C. §§ 151-169 (2006).
49. PAUL C. WEILER & GARY R. ROBERTS, SPORTS AND
THE LAW 240 (2d ed. 1998).
50. Id. at 250.
51. See generally American League of Prof’l Baseball Clubs,
180 N.L.R.B. 190 (1969).
52. Aubut, supra note 3, at 190.
53. The NLRA also specifies that “[e]mployees shall have the
right to self-organization, to form,
join, or assist labor organizations, to bargain collectively
through representatives of their own](https://image.slidesharecdn.com/lab10soilgeographyinthismoduleyouwillidentifyandexpl-221025203756-f9039295/85/LAB-10-SOIL-GEOGRAPHYIn-this-module-you-will-identify-and-expl-docx-94-320.jpg)
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With respect to extraterritoriality, a situation arose that is worth
looking at
and analyzing here: it occurred in October 2005, during the](https://image.slidesharecdn.com/lab10soilgeographyinthismoduleyouwillidentifyandexpl-221025203756-f9039295/85/LAB-10-SOIL-GEOGRAPHYIn-this-module-you-will-identify-and-expl-docx-96-320.jpg)
![be deemed to be “appropriate,” that is, whether “this unit, in
accordance with
the particular circumstances of time and place, [will] be
considered to have the
attributes that would make collective labour relations truly
workable.”66
Certainly, it must be recognized that the existence of the CBA,
which has
the value of a signed contract between private parties, does not
in itself
constitute a structural obstacle to the players being granted
certification,67 nor,
if the case should arise, to a collective agreement being
negotiated between a
team and the association representing the players working for
this team. These
steps are fundamental components of the legal collective labor
relations
system, essential components that are undeniably of public
order. Moreover,
the existence of an individual contract, or several individual
contracts, does
not in itself undermine the right to certification requested by an
association of
employees who would otherwise be legally entitled to it.68
However, the
difficulties that could potentially stem from the implementation
of collective
63. Id. ¶ 76.
64. Id. ¶¶ 58-74.
65. Quebec Labour Code § 21.
66. MORIN ET AL., supra note 11, at 927. This is the authors’
translation from French to English.
67. Quebec Labour Code § 21.](https://image.slidesharecdn.com/lab10soilgeographyinthismoduleyouwillidentifyandexpl-221025203756-f9039295/85/LAB-10-SOIL-GEOGRAPHYIn-this-module-you-will-identify-and-expl-docx-102-320.jpg)
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labor relations within an NHL team, in accordance with the
Quebec Labour
Code, in particular the fact that the CBA standardizes working
conditions and
harmonizes salaries for all NHL players, were clearly pointed
out in the first
Board decision, and these potential problems cannot be](https://image.slidesharecdn.com/lab10soilgeographyinthismoduleyouwillidentifyandexpl-221025203756-f9039295/85/LAB-10-SOIL-GEOGRAPHYIn-this-module-you-will-identify-and-expl-docx-104-320.jpg)
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players,84 the grievance and arbitration process,85 per diem
allowances for
players,86 the pension plan,87 group insurance coverage,88
international
competitions,89 sponsorships and licensing,90 an anti-doping
program,91 and
the establishment of a “salary cap,”92 which is one of the
distinctive features
of the labor relations system set up in 2005 by the CBA that
will be examined
in more detail later on in this Article.
The NHL and the NHLPA in effect agreed to limit the
expenditures](https://image.slidesharecdn.com/lab10soilgeographyinthismoduleyouwillidentifyandexpl-221025203756-f9039295/85/LAB-10-SOIL-GEOGRAPHYIn-this-module-you-will-identify-and-expl-docx-112-320.jpg)
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social insurance premiums paid by the team, as the employer;
compensation
under group insurance programs including life, medical, and
dental coverage;](https://image.slidesharecdn.com/lab10soilgeographyinthismoduleyouwillidentifyandexpl-221025203756-f9039295/85/LAB-10-SOIL-GEOGRAPHYIn-this-module-you-will-identify-and-expl-docx-119-320.jpg)
![playoff pool amounts paid by the League; and individual
performance bonuses
paid by the League, in accordance with Exhibit 5-B Individual
“B” Bonuses,
of the CBA.106 It includes, in fact, all of the employee
benefits actually
received by the players. From this total amount, a figure of
$6.5 million was
established for each of the 2005-2006 and 2007-2008
seasons.107 The figure
established for each of the subsequent years covered by the
CBA is $6.75
million.108
Once this last factor has been determined, it becomes possible
to calculate
the annual salary cap that will be imposed on the teams. It
should be pointed
out that this salary cap (the “Upper Limit”) is accompanied by a
salary floor
(the “Lower Limit”).109 Calculating the Upper and Lower
Limits of the total
annual salaries that can be paid out by the NHL teams thus
involves three
steps, and the final amounts are determined on the basis of the
HRR, the
Applicable Percentage and Benefits:110
Midpoint = [(HRR ! Applicable Percentage) – (Benefits)] ÷ 30
(the
number of teams in the NHL);
Adjusted Midpoint = Midpoint ! 1.05 (adjusted by 5% every
year to
account for inflation);](https://image.slidesharecdn.com/lab10soilgeographyinthismoduleyouwillidentifyandexpl-221025203756-f9039295/85/LAB-10-SOIL-GEOGRAPHYIn-this-module-you-will-identify-and-expl-docx-120-320.jpg)
![Lower Limit = Adjusted Midpoint – $8 million;
Upper Limit = Adjusted Midpoint + $8 million.
This means that, if, for example, the HRR came to $2.3 billion
and the
Benefits were evaluated at $66 million, then, for the following
season, the
Lower Limit would be set at $34.4 million, while the Upper
Limit would be
set at $50.4 million, as illustrated below:
Midpoint = [($2.3 billion ! 55.5%)-($66 million)] ÷ 30 = $40.35
million
Adjusted Midpoint = $40.35 million ! 1.05 = $42.4 million
Lower Limit = $34.4 million and Upper Limit = $50.4 million
Once the Lower Limit and Upper Limit have been worked out
for a given
season, it then becomes possible to determine the maximum
salary that can be
paid to any player for that season.
106. Id. at art. 50.3(a)(i)(A)(1)-(5).
107. Id. at art. 50.3(a)(i)(B).
108. Id. at art. 50.3(a)(i)(B).
109. Id. at art. 50.5(a).
110. Id. at art. 50.5(b)(i).
2
7
9
2
3
sp](https://image.slidesharecdn.com/lab10soilgeographyinthismoduleyouwillidentifyandexpl-221025203756-f9039295/85/LAB-10-SOIL-GEOGRAPHYIn-this-module-you-will-identify-and-expl-docx-121-320.jpg)
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this bargaining process, aims to standardize a whole set of
working conditions
across the NHL and to limit, through a salary cap or Upper
Limit mechanism,
the salary that can be paid to the players. Thus, it establishes a
compulsory
framework for decentralized bargaining relating to the
individual employment
contract between the player and his team.
IV. INDIVIDUAL LABOR RELATIONS IN THE NHL
Individual labor relations in the NHL take place at the level of
“the firm.”
The negotiation of the employment contract between the player
and the team,
which is intended mainly to determine the salary and duration
of the contract,
must be conducted in accordance with the rules specified in the](https://image.slidesharecdn.com/lab10soilgeographyinthismoduleyouwillidentifyandexpl-221025203756-f9039295/85/LAB-10-SOIL-GEOGRAPHYIn-this-module-you-will-identify-and-expl-docx-127-320.jpg)
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term is limited to one season only, allows the team to maintain
some rights
over the player.155 If the team fails to make such an offer, the
player becomes
an unrestricted free agent.156 The qualifying offer must be
made by June 25
of each year, or the first Monday following the draft of the
player’s last year
under the SPC; it must also comply with the following:157
Salary during last year of SPC Qualifying offer
Under $660,000 110%
From $660,000 to US$1,000,000 105%158
Over $1,000,000 100%
After having received a qualifying offer, the player who meets
all the
previously mentioned conditions can request salary arbitration,
but only if he](https://image.slidesharecdn.com/lab10soilgeographyinthismoduleyouwillidentifyandexpl-221025203756-f9039295/85/LAB-10-SOIL-GEOGRAPHYIn-this-module-you-will-identify-and-expl-docx-142-320.jpg)
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and statistics put forward to back up their claim.178 During the
hearing, each
party has a specified period of time in which to argue their case
directly (the
“Direct Case”) and then refute the allegations of the opposing
party or present
their rebuttal case.179
Each party has a maximum of ninety minutes to present their
Direct Case
and respond to the arguments of the other party.180 The player,
the team, the](https://image.slidesharecdn.com/lab10soilgeographyinthismoduleyouwillidentifyandexpl-221025203756-f9039295/85/LAB-10-SOIL-GEOGRAPHYIn-this-module-you-will-identify-and-expl-docx-149-320.jpg)
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with it under certain circumstances.201 However, the player
does not have this
prerogative.202 The Walk- Away Right exists only when it is
the player who
filed for arbitration.203 Moreover, the team is entitled to
exercise
its right to walk away only if the player obtains an annual salary
of
$1,042,173 or more at the close of the arbitration session.204
This right is
usually exercised when the team considers that the salary
awarded to the
player is too high in relation to what it is prepared to pay.](https://image.slidesharecdn.com/lab10soilgeographyinthismoduleyouwillidentifyandexpl-221025203756-f9039295/85/LAB-10-SOIL-GEOGRAPHYIn-this-module-you-will-identify-and-expl-docx-157-320.jpg)
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heard.214 Written notice of the grievance must be sent to the
opposing party
by facsimile; the notice must put forward the reasons the
grievance was filed,
explanations concerning the CBA provisions, which have been
violated, and a
report detailing the solutions envisaged.215 After being served
with a](https://image.slidesharecdn.com/lab10soilgeographyinthismoduleyouwillidentifyandexpl-221025203756-f9039295/85/LAB-10-SOIL-GEOGRAPHYIn-this-module-you-will-identify-and-expl-docx-164-320.jpg)
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this trans American model of “collective autonomy”—an
enlightened
example of “legal pluralism”—represented by the NHL’s labor
relations
system, can serve as an inspiration to other industries wishing
to follow its
example.
Copyright of Marquette Sports Law Review is the property of
Marquette Sports Law Review and its content
may not be copied or emailed to multiple sites or posted to a
listserv without the copyright holder's express
written permission. However, users may print, download, or
email articles for individual use.
ManageMent](https://image.slidesharecdn.com/lab10soilgeographyinthismoduleyouwillidentifyandexpl-221025203756-f9039295/85/LAB-10-SOIL-GEOGRAPHYIn-this-module-you-will-identify-and-expl-docx-172-320.jpg)
![supporting community.
Keywords: cheating; eligibility; funding; governance;
governing bodies; homeschoolers;
pay-to-play; school prayer; sport specialization; sportsmanship;
substance abuse
118
Tonya L. Sawyer is compliance coordinator, Department of
Intercollegiate Athletics, Indiana
State University. Please send author correspondence to
[email protected]
Journal of Facility Planning, Design, and Management
Vol. 3, No. 2, pp. 118–133
Interscholastic Sport Governance 119
Evolution of High School Sports
The four stages in the evolution of interscholastic sports are
opposition, toleration, recog-
nition and capitalization, and exploitation. During opposition,
schools did not sponsor high
school sports, yet the team representing the student athletic
associations eventually came to be
identified with their schools and began to embarrass them.
School officials found themselves
forced to take positions on the recruitment of outsiders to play
on the teams, controversies that
arose, and volunteer coaching by individuals who had no
training as teachers and whose tactics
were questionable. As the enthusiasm developed for athletic](https://image.slidesharecdn.com/lab10soilgeographyinthismoduleyouwillidentifyandexpl-221025203756-f9039295/85/LAB-10-SOIL-GEOGRAPHYIn-this-module-you-will-identify-and-expl-docx-174-320.jpg)
![Organization (2001b)
forecasted that the number of international tourist arrivals to the
Americas is expected
to reach 282.3 million in 2020. Among the development of
international tourist arri-
vals, sport tourism is one of the major developments in the past
few decades that has
continued growing (World Tourism Organization, 2001a). The
combination of sport
and tourism has become a popular choice among sports fans and
tourists as they can
Correspondence to: Chia-Chen Yu, Director of Sport
Management Program, 210 Mitchell Hall, Department of
Exercise and Sport Science, University of Wisconsin-La Crosse,
La Crosse, WI 54601, USA. Email:
[email protected]
Journal of Sport & Tourism
Vol. 15, No. 2, May 2010, pp. 111 – 137
ISSN 1477-5085 (print)/ISSN 1029-5399 (online) # 2010 Taylor
& Francis
DOI: 10.1080/14775085.2010.498249
participate in sporting events and enjoy other tourist activities.
Not only do sports
tourists take advantage of sport tourism, but governments and
cities also benefit](https://image.slidesharecdn.com/lab10soilgeographyinthismoduleyouwillidentifyandexpl-221025203756-f9039295/85/LAB-10-SOIL-GEOGRAPHYIn-this-module-you-will-identify-and-expl-docx-218-320.jpg)
![ought to incorporate activities such as a post-game meet-and-
greet with a professional
athlete, a tour of sport facilities, or purchases of sports
licensing products.
The results of this study provide sport marketers with
information on developing
sport tourism for international sport fans. However, the
limitations of this study are
that only respondents from Taiwan were chosen for this study,
and thus, the results
cannot represent all international fans. In addition, college
students were the respon-
dents for this study as most college students may have to rely
on parents’ financial
support for outbound trips. For future studies, a comparison
among respondents
from different countries and age groups would be helpful for
research about inter-
national sport tourism.
Note
[1] In this paper, several international players from Asia were
included to illustrate examples of
sport tourism and globalization. In East Asia, an individual’s
last name comes first followed](https://image.slidesharecdn.com/lab10soilgeographyinthismoduleyouwillidentifyandexpl-221025203756-f9039295/85/LAB-10-SOIL-GEOGRAPHYIn-this-module-you-will-identify-and-expl-docx-288-320.jpg)
![in 1992, and to
the first lockout in 1994-1995.7 This was followed by a second
lockout in
2004-2005, this time leading to the cancellation of the entire
hockey season,
including the playoffs, a first in the history of professional
sports in North
America.8 This second lockout led to the signing of the CBA.
This sector-based collective agreement, which applies across
North
America, unilaterally stipulates the great majority of working
conditions for all
NHL players, regardless of the team for which they play.
Moreover, it directly
regulates the negotiations of individual employment contracts
between players
and teams by imposing a whole set of standards covering
various aspects of
the employment relationship.9
3. Melanie Aubut, When Negotiations Fail: An Analysis of
Salary Arbitration and Salary Cap
Systems, 10 SPORTS LAW. J. 189, 190 (2003).
4. Id.
5. Id.
6. See generally NATIONAL HOCKEY LEAGUE,
COLLECTIVE BARGAINING AGREEMENT
BETWEEN THE NHL AND THE NHLPA (2005), available at
http://www.nhlpa.com/About-Us/CBA/
[hereinafter CBA].
7. Aubut, supra note 3, at 194.
8. See generally Trois Mois de Lock-Out en 1994-1995,](https://image.slidesharecdn.com/lab10soilgeographyinthismoduleyouwillidentifyandexpl-221025203756-f9039295/85/LAB-10-SOIL-GEOGRAPHYIn-this-module-you-will-identify-and-expl-docx-308-320.jpg)
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Beyond the curious fact that a team—the employer—has the
right to trade
one of its own players—the employee—to another competing](https://image.slidesharecdn.com/lab10soilgeographyinthismoduleyouwillidentifyandexpl-221025203756-f9039295/85/LAB-10-SOIL-GEOGRAPHYIn-this-module-you-will-identify-and-expl-docx-310-320.jpg)
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has made it possible to go beyond the inherent territoriality of
labor law,
whether state-based or conventional, and the inherent
limitations of its
effectiveness. Moreover, this system indisputably has
transnational and multi-
employer normative import. Lastly, the binding effect and
enforceability of its
rules are ensured by an arbitration mechanism binding the
parties.](https://image.slidesharecdn.com/lab10soilgeographyinthismoduleyouwillidentifyandexpl-221025203756-f9039295/85/LAB-10-SOIL-GEOGRAPHYIn-this-module-you-will-identify-and-expl-docx-318-320.jpg)
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be relocated.42
exclusive bargaining representative of the present and future
Clubs of the
NHL . . . .”37 Thus, the NHL is a common legal entity that the
team owners
created in order to set up a professional hockey league. It is
also, according to](https://image.slidesharecdn.com/lab10soilgeographyinthismoduleyouwillidentifyandexpl-221025203756-f9039295/85/LAB-10-SOIL-GEOGRAPHYIn-this-module-you-will-identify-and-expl-docx-326-320.jpg)
![began with a resolution by player representatives from the six
original teams
who elected a Toronto Maple Leafs player, Bob Pulford, as the
NHLPA’s
president, and appointed Alan Eagleson, an influential player
agent at the time,
as its executive director.41 According to the archives, on
Eagleson’s advice,
37. CBA, supra note 6, at pmbl.
38. “[E]mployers’ association: a group organization of
employers having as its objects the study
and safeguarding of the economic interests of its members, and
particularly assistance in the
negotiation and application of collective agreements.” Quebec
Labour Code § 1(c).
39. National Hockey League, FUNDINGUNIVERSE.COM,
http://www.fundinguniverse.com/
company-histories/National-Hockey-League-Company-
History.html (last visited Oct. 27, 2009).
40. GIL STEIN, POWER PLAYS: AN INSIDE LOOK AT THE
BIG BUSINESS OF THE NATIONAL
HOCKEY LEAGUE 37 (1997).
41. Id.
42. Id.
43. NHL Players Ass’n (NHLPA), About the NHLPA,
NHLPA.COM, http://www.nhlpa.com/
About-Us (last visited Jan. 20, 2008) [hereinafter NHLPA].
44. Id.
41. Boston: Ed Johnston; Chicago: Pierre Pilote; Detroit: Norm](https://image.slidesharecdn.com/lab10soilgeographyinthismoduleyouwillidentifyandexpl-221025203756-f9039295/85/LAB-10-SOIL-GEOGRAPHYIn-this-module-you-will-identify-and-expl-docx-328-320.jpg)
![Pulford delivered an ultimatum to team owners at a meeting,
declaring that if
they refused to recognize the new NHLPA, the players would
join the
powerful Teamsters Union and seek certification under
Canadian labor laws.45
The owners were obviously against this proposal, but as pointed
out by
one observer, the “notorious Teamsters Union was beginning to
cause some
rumblings with the league, [so] Eagleson seemed to be the
lesser of two
evils.”46 Consequently, the NHLPA was recognized by the
team owners and
thus gained its present status as, to use the words of the CBA
itself, “the sole
and exclusive bargaining representative of the present and
future Players in the
NHL.”47
It is interesting to note that the parties appear to have chosen a
United
States law, the National Labor Relations Act (NLRA),48 to
govern their labor
relations.49 The United States Congress adopted this law in
accordance with
its authority to govern trade between states, as set out in the
United States
Constitution.50 A National Labor Relations Board decision51
established that
the NLRA has jurisdiction over and can be applied to
professional sports
leagues in the United States, including the NHL.52 By
recognizing the
principle of freedom of association,53 the NLRA not only](https://image.slidesharecdn.com/lab10soilgeographyinthismoduleyouwillidentifyandexpl-221025203756-f9039295/85/LAB-10-SOIL-GEOGRAPHYIn-this-module-you-will-identify-and-expl-docx-331-320.jpg)
![allows players to
form their own association and negotiate their working
conditions collectively,
but also implicitly, to exercise the right to strike, since it
specifies that they
can engage in other concerted activities for the purpose of
collective
bargaining.54 Moreover, the extraterritorial scope of this law
leaves no doubt
as to its applicability in Canada.
cfm/history_of_nhlpa_executive_directors.
45. NHLPA, supra note 43.
46. James Baillie, An Investigation into the Collective
Bargaining Relationship Between the
NHL and the NHLPA, 1994-2005 17 (August 2005)
(unpublished Master’s thesis, Queen’s
University) (on file with the Industrial Relations Center,
Queen’s University), available at
http://irc.queensu.ca/articles/an-investigation-into-the-
collective-bargaining-relationship-between-the-
nhl-and-the-nhlpa-1994-2005.
47. CBA, supra note 6, at pmbl., art. 2.1. Article 2.1 restates
similar language found in the
Preamble. See generally id. at art. 2.1.
48. National Labor Relations Act, 29 U.S.C. §§ 151-169 (2006).
49. PAUL C. WEILER & GARY R. ROBERTS, SPORTS AND
THE LAW 240 (2d ed. 1998).
50. Id. at 250.
51. See generally American League of Prof’l Baseball Clubs,
180 N.L.R.B. 190 (1969).
52. Aubut, supra note 3, at 190.
53. The NLRA also specifies that “[e]mployees shall have the](https://image.slidesharecdn.com/lab10soilgeographyinthismoduleyouwillidentifyandexpl-221025203756-f9039295/85/LAB-10-SOIL-GEOGRAPHYIn-this-module-you-will-identify-and-expl-docx-332-320.jpg)
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![was able to establish that it was representative of the majority
of employees.65
The main question nevertheless remains whether this
certification unit would
be deemed to be “appropriate,” that is, whether “this unit, in
accordance with
the particular circumstances of time and place, [will] be
considered to have the
attributes that would make collective labour relations truly
workable.”66
Certainly, it must be recognized that the existence of the CBA,
which has
the value of a signed contract between private parties, does not
in itself
constitute a structural obstacle to the players being granted
certification,67 nor,
if the case should arise, to a collective agreement being
negotiated between a
team and the association representing the players working for
this team. These
steps are fundamental components of the legal collective labor
relations
system, essential components that are undeniably of public
order. Moreover,
the existence of an individual contract, or several individual
contracts, does
not in itself undermine the right to certification requested by an
association of
employees who would otherwise be legally entitled to it.68
However, the
difficulties that could potentially stem from the implementation
of collective
63. Id. ¶ 76.
64. Id. ¶¶ 58-74.](https://image.slidesharecdn.com/lab10soilgeographyinthismoduleyouwillidentifyandexpl-221025203756-f9039295/85/LAB-10-SOIL-GEOGRAPHYIn-this-module-you-will-identify-and-expl-docx-340-320.jpg)
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labor relations within an NHL team, in accordance with the
Quebec Labour
Code, in particular the fact that the CBA standardizes working](https://image.slidesharecdn.com/lab10soilgeographyinthismoduleyouwillidentifyandexpl-221025203756-f9039295/85/LAB-10-SOIL-GEOGRAPHYIn-this-module-you-will-identify-and-expl-docx-342-320.jpg)
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players,84 the grievance and arbitration process,85 per diem
allowances for
players,86 the pension plan,87 group insurance coverage,88
international
competitions,89 sponsorships and licensing,90 an anti-doping
program,91 and
the establishment of a “salary cap,”92 which is one of the
distinctive features
of the labor relations system set up in 2005 by the CBA that
will be examined](https://image.slidesharecdn.com/lab10soilgeographyinthismoduleyouwillidentifyandexpl-221025203756-f9039295/85/LAB-10-SOIL-GEOGRAPHYIn-this-module-you-will-identify-and-expl-docx-350-320.jpg)
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![social insurance premiums paid by the team, as the employer;
compensation
under group insurance programs including life, medical, and
dental coverage;
playoff pool amounts paid by the League; and individual
performance bonuses
paid by the League, in accordance with Exhibit 5-B Individual
“B” Bonuses,
of the CBA.106 It includes, in fact, all of the employee
benefits actually
received by the players. From this total amount, a figure of
$6.5 million was
established for each of the 2005-2006 and 2007-2008
seasons.107 The figure
established for each of the subsequent years covered by the
CBA is $6.75
million.108
Once this last factor has been determined, it becomes possible
to calculate
the annual salary cap that will be imposed on the teams. It
should be pointed
out that this salary cap (the “Upper Limit”) is accompanied by a
salary floor
(the “Lower Limit”).109 Calculating the Upper and Lower
Limits of the total
annual salaries that can be paid out by the NHL teams thus
involves three
steps, and the final amounts are determined on the basis of the
HRR, the
Applicable Percentage and Benefits:110
Midpoint = [(HRR ! Applicable Percentage) – (Benefits)] ÷ 30
(the
number of teams in the NHL);](https://image.slidesharecdn.com/lab10soilgeographyinthismoduleyouwillidentifyandexpl-221025203756-f9039295/85/LAB-10-SOIL-GEOGRAPHYIn-this-module-you-will-identify-and-expl-docx-358-320.jpg)
![Adjusted Midpoint = Midpoint ! 1.05 (adjusted by 5% every
year to
account for inflation);
Lower Limit = Adjusted Midpoint – $8 million;
Upper Limit = Adjusted Midpoint + $8 million.
This means that, if, for example, the HRR came to $2.3 billion
and the
Benefits were evaluated at $66 million, then, for the following
season, the
Lower Limit would be set at $34.4 million, while the Upper
Limit would be
set at $50.4 million, as illustrated below:
Midpoint = [($2.3 billion ! 55.5%)-($66 million)] ÷ 30 = $40.35
million
Adjusted Midpoint = $40.35 million ! 1.05 = $42.4 million
Lower Limit = $34.4 million and Upper Limit = $50.4 million
Once the Lower Limit and Upper Limit have been worked out
for a given
season, it then becomes possible to determine the maximum
salary that can be
paid to any player for that season.
106. Id. at art. 50.3(a)(i)(A)(1)-(5).
107. Id. at art. 50.3(a)(i)(B).
108. Id. at art. 50.3(a)(i)(B).
109. Id. at art. 50.5(a).
110. Id. at art. 50.5(b)(i).
2
7](https://image.slidesharecdn.com/lab10soilgeographyinthismoduleyouwillidentifyandexpl-221025203756-f9039295/85/LAB-10-SOIL-GEOGRAPHYIn-this-module-you-will-identify-and-expl-docx-359-320.jpg)
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this bargaining process, aims to standardize a whole set of
working conditions
across the NHL and to limit, through a salary cap or Upper
Limit mechanism,
the salary that can be paid to the players. Thus, it establishes a
compulsory
framework for decentralized bargaining relating to the
individual employment
contract between the player and his team.
IV. INDIVIDUAL LABOR RELATIONS IN THE NHL
Individual labor relations in the NHL take place at the level of
“the firm.”
The negotiation of the employment contract between the player](https://image.slidesharecdn.com/lab10soilgeographyinthismoduleyouwillidentifyandexpl-221025203756-f9039295/85/LAB-10-SOIL-GEOGRAPHYIn-this-module-you-will-identify-and-expl-docx-365-320.jpg)
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1. Disputes over salary negotiations.
In sports law, salary arbitration is a tool that is made available
to the
parties in order to settle their disputes over the negotiation of a
contract
between a player and a team. The hearing is held before an
independent
arbitrator, with each party generally being represented by their
lawyers, plus
the agent for the player, and the general manager or his
assistant for the
team.136 The arbitrator decides on issues related to the player’s
salary only.137
There are just two professional leagues in North America that
use this
system—the NHL and Major League Baseball (MLB).138 The
National
Basketball Association and the National Football League have
not adopted this
system in their respective collective agreements.139
The NHL was the first professional league to introduce salary
arbitration,
as early as 1970, followed by the MLB in 1973.140 The
introduction of this
mechanism stemmed from the dissatisfaction generated by the
option clause, a
rule that was inserted in the NHL’s SPC in 1958.141 This
clause stipulated
that when a player’s contract expired, the team could](https://image.slidesharecdn.com/lab10soilgeographyinthismoduleyouwillidentifyandexpl-221025203756-f9039295/85/LAB-10-SOIL-GEOGRAPHYIn-this-module-you-will-identify-and-expl-docx-373-320.jpg)
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term is limited to one season only, allows the team to maintain
some rights
over the player.155 If the team fails to make such an offer, the
player becomes
an unrestricted free agent.156 The qualifying offer must be
made by June 25
of each year, or the first Monday following the draft of the
player’s last year
under the SPC; it must also comply with the following:157
Salary during last year of SPC Qualifying offer
Under $660,000 110%
From $660,000 to US$1,000,000 105%158
Over $1,000,000 100%](https://image.slidesharecdn.com/lab10soilgeographyinthismoduleyouwillidentifyandexpl-221025203756-f9039295/85/LAB-10-SOIL-GEOGRAPHYIn-this-module-you-will-identify-and-expl-docx-380-320.jpg)
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and statistics put forward to back up their claim.178 During the
hearing, each
party has a specified period of time in which to argue their case
directly (the
“Direct Case”) and then refute the allegations of the opposing
party or present
their rebuttal case.179](https://image.slidesharecdn.com/lab10soilgeographyinthismoduleyouwillidentifyandexpl-221025203756-f9039295/85/LAB-10-SOIL-GEOGRAPHYIn-this-module-you-will-identify-and-expl-docx-387-320.jpg)
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with it under certain circumstances.201 However, the player
does not have this
prerogative.202 The Walk- Away Right exists only when it is
the player who
filed for arbitration.203 Moreover, the team is entitled to
exercise
its right to walk away only if the player obtains an annual salary
of
$1,042,173 or more at the close of the arbitration session.204](https://image.slidesharecdn.com/lab10soilgeographyinthismoduleyouwillidentifyandexpl-221025203756-f9039295/85/LAB-10-SOIL-GEOGRAPHYIn-this-module-you-will-identify-and-expl-docx-395-320.jpg)
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heard.214 Written notice of the grievance must be sent to the
opposing party
by facsimile; the notice must put forward the reasons the
grievance was filed,](https://image.slidesharecdn.com/lab10soilgeographyinthismoduleyouwillidentifyandexpl-221025203756-f9039295/85/LAB-10-SOIL-GEOGRAPHYIn-this-module-you-will-identify-and-expl-docx-402-320.jpg)
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this trans American model of “collective autonomy”—an
enlightened
example of “legal pluralism”—represented by the NHL’s labor
relations
system, can serve as an inspiration to other industries wishing
to follow its
example.
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- 1. LAB 10: SOIL GEOGRAPHY In this module, you will identify and explain the geographic distribution, patterns, and processes associated with Earth’s soils. Note: Please refer to the GETTING STARTED lab module to learn tips on how to set up and maneuver through the Google Earth () component of this lab. KEY TERMS The following is a list of important words and concepts used in this lab module: Cation-exchange capacity (CEC) Particle size –sand, silt, clay Soil profile CLORPT Pedogenic processes Soil structure Diagnostic horizon Pore space Soil solution Eluviation Soil color – hue, value, chroma Soil Taxonomy Humus Soil consistence Soil texture Illuviation Soil horizons - O, A, E, B, C, R Transpiration Inorganic material (matter) Soil moisture Organic material (matter) Soil pH
- 2. LAB MODULES LEARNING OBJECTIVES After successfully completing this module, you should be able to: · Identify the fundamental components of soil · Explain the factors that influence the development of soil (CLORPT) · Identify soil orders and soil series by diagnostic characteristics and location · Explain soil profiles and soil horizons · Recognize soils by texture and color · Describe the geography of soils at various taxonomic levels INTRODUCTION This module examines the geography of soil. Topics include soil classifications, soil horizons, soil moisture, pH and color. While these topics may appear to be disparate, you will learn how they are inherently related. The modules start with five opening topics, or vignettes, which are found in the accompanying Google Earth file. These vignettes introduce basic concepts of the geography of soil. Some of the vignettes have animations, videos, or short articles that will provide another perspective or visual explanation for the topic at hand. After reading the vignette and associated links, answer the following questions. Please note that some components of this lab may take a while to download or open, especially if you have a slow internet connection. Expand SOIL GEOGRAPHY and then expand the INTRODUCTION folder. Read Topic 1: The Earth’s Soils. Question 1: Looking at the map, what is the soil moisture terminology used for regions with relatively humid climates and well-distributed rainfall, where water moves down through the soil via soil pores, like that of eastern USA, the United Kingdom, Norway, and eastern China?
- 3. a. Udic b. Aridic c. Ustic d. Perudic Read Topic 2: Soil Forming Factors Question 2: Which factor – climate, organisms, relief, parent material, or time – would affect most universally the soils in mountainous areas? a. climate b. organisms c. relief d. parent material e. time Read Topic 3: Soil Characteristics Question 3: How are colloids beneficial to plants (Hint: What can they do that helps plants)? a. Colloids dissolve soil water for plant use b. Colloids contain acid ions that leach nutrients from soil c. Colloids harbor positively charged surfaces to attract nutrients d. Colloids hold soil nutrients for plant use Read Topic 4: Soil Horizons Question 4: The photo image shows a massive horizon of accumulated clays, oxides, and organics. Does this soil profile show a massive O horizon, A horizon, E horizon, B horizon, or C horizon? a. 0 horizon b. A horizon c. E horizon d. B horizon e. C horizon Read Topic 5: Soil Degradation
- 4. Question 5: Reading the map, what is the global status of soil in South Africa, the internal region of Madagascar, and the majority of eastern China? a. Very high severity b. High severity c. Moderate severity d. Low severity Collapse and uncheck INTRODUCTION GLOBAL PERSPECTIVE In this section, you will identify how soils are distributed at a global scale. Remember, scale is an important concept in geography, because some patterns can be seen only at the global (coarse) scale and not at the local (fine) scale. Expand GLOBAL PERSPECTIVE and then click and select, Soil Taxonomy Map. Soils are generally classified using their soil profiles and other physical, chemical, and biological characteristics. How they are classified, or grouped into categories, depends on the classification system used. There are many recognized soil classification systems in the world, including classification systems from Canada, Russia, China, Germany, Australia, the United States, and the internationally recognized FAO World Reference Base for Soil Resources (WRB). For this section, the soil order nomenclature (how soils are named) is based on the United States classification system known as the USDA Soil Taxonomy. The resultant map overlay shows particular geographic patterns of soil with climate and relief that are evident at the global scale. Doubleclick and select Atlanta. When you arrive at your destination, choose the dominant soil order for the city. Repeat this for the remaining questions in this section. Question 6: What is the predominant soil order for Atlanta,
- 5. Georgia, USA and the surrounding region? a. Ultisols b. Vertisols c. Spodosols d. Oxisols e. Gelisols f. Histosols g. Andisols h. Aridisols i. Mollisols j. Alfisols k. Inceptisols l. Entisols Doubleclick and select Bhopal Question 7: What is the predominant soil order for Bhopal, India and the surrounding region? a. Ultisols b. Vertisols c. Spodosols d. Oxisols e. Gelisols f. Histosols g. Andisols h. Aridisols i. Mollisols j. Alfisols k. Inceptisols l. Entisols Doubleclick and select Hamar Question 8: What is the predominant soil order for Hamar, Norway and the surrounding region? a. Ultisols b. Vertisols c. Spodosols d. Oxisols e. Gelisols
- 6. f. Histosols g. Andisols h. Aridisols i. Mollisols j. Alfisols k. Inceptisols l. Entisols Doubleclick and select Yaounde Question 9: What is the predominant soil order for Yaounde, Cameroon and the surrounding region? a. Ultisols b. Vertisols c. Spodosols d. Oxisols e. Gelisols f. Histosols g. Andisols h. Aridisols i. Mollisols j. Alfisols k. Inceptisols l. Entisols Doubleclick and select Sarawak Question 10: Sarawak is a Malaysian state located on the Island of Borneo. The predominant soil order for most of Sarawak is the same as which of the following locations? a. Yaounde, Cameroon b. Hamar, Norway c. Bhopal, India d. Atlanta, Georgia Collapse and uncheck GLOBAL PERSPECTIVE SOIL ORDER Physical, chemical, and other unique properties help classify soils at all levels of taxonomy. Soils are classified from the highest level, the soil order, down to the lowest level, the soil series. The levels between soil order and soil series are soil
- 7. suborder, great group, subgroup, and families. The USDA Soil Taxonomy recognizes 12 soil orders, 64 suborders, over 300 great groups, and over 20,000 soil series. The soil order level is important at the macro (global) scale, or when general descriptions of soil are needed. The soil series level is important at the micro (local) scale, or when specific soil descriptions are needed. At the local scale, soils are very complex and can vary significantly within a relatively small area due to various environmental factors. These factors can include the steepness of the terrain, the size and speed of streams, the native plants or crops that grow on it, the type of parent material (rocks) below it, the age of the soil, and soil disturbance (for example, fire). Continue practicing your identification of soil orders at a global scale. Expand SOIL ORDER and then click and select Identification. If you need help with identification, click and select Information. This link takes you to The Twelve Soil Orders of Soil Taxonomy web page hosted by the USDA Natural Resources Conservation Service. You can use this to help you identify soils 1 through 12. Question 11: Soil 1: Question 12: Soil 2: Question 13: Soil 3: Question 14: Soil 4: Question 15: Soil 5: Question 16: Soil 6: Question 17: Soil 7: Question 18: Soil 8: Question 19: Soil 9: Question 20: Soil 10: Question 21: Soil 11: Question 22: Soil 12: <Question 11-22: Pull from the following list> a. Alfisols b. Andisols
- 8. c. Aridisols d. Entisols e. Gelisols f. Histosols g. Inceptisols h. Mollisols i. Oxisols j. Spodosols k. Ultisols l. Vertisols SOIL PROFILE The USDA Soil Taxonomy uses color, texture, structure, and other soil properties of a soil profile, measured from the surface down to two meters depth (NCRS). Within the soil profile, soil horizons are important in the identification of the soil order and lower taxonomic levels. Soil horizons at the surface are sometimes known as epipedons. Many soils have a diagnostic horizon or other soil characteristics that are unique to that soil and help to differentiate them from other soil types. Expand SOIL PROFILE, and then doubleclick and select Soil Taxonomy Map. Next, double-click and select Soil 1. In this section, you will look at six different soil profiles. To identify each soil order, an image along with CLORPT (CLimate, Organisms, Relief, Parent material, Time) information and diagnostic characteristics are provided. After you identify the soil order, expand the folder and select and click Location A and Location B to determine the most likely location. Question 23: What is Soil 1? _____________________ a. Aridisols b. Inceptisols c. Ultisols d. Vertisols Question 24: This soil order is most likely to be found at or around Location A, B, C or D?
- 9. a. Location A b. Location B c. Location C d. Location D Question 25: What is Soil 2? _____________________ a. Alfisols b. Inceptisols c. Mollisols d. Spodosols Question 26: This soil order is most likely to be found at or around Location E, F, G, or H? a. Location E b. Location F c. Location G d. Location H Question 27: What is Soil 3? _____________________ a. Alfisols b. Gelisols c. Histosols d. Inceptisols Question 28: This soil order is most likely to be found at or around Location I, J, K, or L a. Location I b. Location J c. Location K d. Location L Question 29: What is Soil 4? _____________________ a. Alfisols b. Entisols c. Oxisols d. Ultisols
- 10. Question 30: This soil order is most likely to be found at or around Location M, N, O, or P? a. Location M b. Location N c. Location O d. Location P Question 31: What is Soil 5? _____________________ a. Alfisols b. Histosols c. Inceptisols d. Spodosols Question 32: This soil order is most likely to be found at or around Location Q, R, S, or T? a. Location Q b. Location R c. Location S d. Location T SOIL TEXTURE One common physical soil property that helps to classify soils is soil texture. Soil texture is one of the first things determined for a given soil or soil horizon, and equates to the size of the particles for a given soil. The three relative sizes of soil particles include sand (largest/coarse), silt (medium), and clay (smallest/fine). Most soils contain a percentage of each of these particle sizes. Figure 1 shows the USDA Soil Texture Triangle which determines soil texture classes by percent sand, silt, and clay. Figure 1. USDA Soil Texture Triangle (NCRS). Use the Soil Texture Triangle to determine the soil texture class for each of the following examples. Note that the numbers for each separate (sand, silt, clay) on the Soil Texture Triangle are
- 11. directionally aligned with the associated lines. Question 33: What is the soil texture class for a soil that is 50 percent clay, 30 percent silt, and 20 percent sand? a. Silty clay loam b. Clay c. Loam d. Sandy loam e. Sandy clay loam Question 34: What is the soil texture class for a soil that is 15 percent clay, 45 percent silt, and 40 percent sand? a. Silty clay loam b. Clay c. Loam d. Sandy loam e. Sandy clay loam Soil texture can be identified in the field using a texture-by-feel method, a relatively accurate finger identification technique in which the combination of sand (gritty), silt (smooth and flexible), and clay (sticky) are estimated using a series of yesno questions. Surprising to some, this mechanical-analysis procedure to identify soils can be highly accurate among trained soil scientists. Expand SOIL TEXTURE and then click and select SoilTexture by Feel to view a video of how this soil texture identification method is determined in the field. Texture is important because it relates to weathering and parent material. It also plays a role in water movement, and nutrient availability. Finer textures like clay have smaller pore spaces lending to slower water movement through the soil, and a propensity for a higher CEC and therefore better nutrient availability for plants. Question 35: After wetting and kneading the soil, determine the steps in soil texture by feel for a clay soil, by moving the four answers below to place in the correct order. a. Determine the length of the ribbon
- 12. b. Determine if soil can form a ball c. Determine if the soil is smooth or gritty, or neither smooth nor gritty d. Determine if soil can form a ribbon Question 36: You have a 3cm ribbon that is very gritty. What type of soil is it? a. Sandy loam b. Sandy clay loam c. Clay loam d. Silty clay loam Doubleclick and select California Texture Map. To close the citation, click the X in the top right corner of the window. Doubleclick and select Location U. Repeat for Location V and W. Based on the Soil Texture Triangle provided, and referring back to Figure 1, determine the approximate soil texture for each of the following locations. Question 37: Soil Texture at Location U is ______________. a. Clay b. Loamy sand c. Silty loam d. Loam Question 38: Soil Texture at Location V is ______________. a. Loam b. Sand c. Silt clay d. Silt Question 39: Soil Texture at Location W is ______________. a. Clay b. Sandy clay c. Silt loam d. Clay loam Question 40: In what location (U, V or W) would soils have the largest pore space, fastest water movement, lowest cation
- 13. exchange capacity (CEC), and limited nutrient availability for plants? a. Location U b. Location V c. Location W You have just completed Lab Module 11. Journal of Intercollegiate Sport, 2014, 7,40-57 http://dx.doi.Org/10.1123/jis.2014-0084 ©2014 Human Kinetics, Inc. Gray Area Ethical Leadership in the NCAA: The Ethics of Doing the Wrong Things Right Michael Sagas University of Florida Brian J. Wigley Shenandoah University The NCAA’s operating manuals provide member institutions with hundreds of pages of bylaws that outline how member institutions should operate their athletic programs. Interpretations of these rules can lead to sanctions for student-athletes, coaches, athletic administrators and institutions. Such rule- based systems can potentially lead to the belief that simply following the rules as written equates to right or ethical behavior. In this commentary, we used an
- 14. ethical leadership framework primarily built on the leadership and management thoughts of Bennis and Nanus (1985) to propose the College Athletics Ethical Leadership Continuum which can be used to assess the behaviors, rules, and decisions made by NCAA membership. Fundamental principles of this conceptual model include holding the student-athlete as the primary stakeholder of college sports activities, and that a critical analysis of the present is necessary to provide leadership for the future. Based on a distinction between doing things right and doing the right thing, the model is applied to four case studies in which NCAA membership policies and actions, or lack thereof, are likely compromising the wellbeing and academic success of student-athletes. Keywords: ethical leadership. Division I, Division III The rules and bylaws that govern how the National Collegiate Athletic Associa- tion (NCAA) operates have evolved in unique and complex ways since the incep- tion of the association over 100 years ago. The manual has also grown in size and scope as is evident from the length o f the most recent 2013-14 operating manuals that range from 274 to 351 pages depending on the NCAA division. The operat- ing manuals for each division define requirements for m em ber institutions to be a part o f the association, and also identify what members
- 15. schools can and cannot Sagas is with the Department of Tourism, Recreation and Sport Management and Faculty Athletics Representative, University of Florida, Gainesville, FL. Wigley is with the Byrd School of Business, and Faculty Athletics Representative, Shenandoah University, Winchester, VA. Address author cor- respondence to Michael Sagas at [email protected] 40 W rong Things Right 41 do when operating their programs related to such things as recruiting, personnel, eligibility, and the playing season for their sports. At the Division I level, the regulations and bylaws that govern the association are created by the membership of the association though a legislative process that submits proposals for new and revised rules to the Legislative Council, which serves as the primary legislative body of Division I. The Legislative Council is populated by representatives of member institutions including athletic department administrators, Faculty Athletic Representatives, and conference level administra- tors. Legislation that is approved by the Legislative Council is sent to the NCAA Division I Board of Directors (which is populated by member institution presidents and chancellors) tor approval to become effective, unless the
- 16. legislation is overrid- den by a five-eighths vote of active members (Davis & Hairston. 2013). The process in place for proposals to become legislation at the NCAA Division III level is very similar to that ol Division I. Changes in legislation, rules, or policies come from either member institutions or conferences, or various standing committees, to the Division III Management Council and then the Division III President’s Council. It is also important to note that NCAA staff members are frequently involved with enforcement and interpretation of the rules for the membership along with member institution representatives on various NCAA committees. Indeed, most of the rules in the three NCAA manuals are necessary to facilitate the common good of the association as a whole, and the solvency and wellbeing of each member institution of the association. For example, these bylaws attempt to protect the safety and well-being of student-athletes (e.g., by mandating that institutions have a concussion management plan) and even prospective student- athletes (e.g., by limiting when and how often prospective student-athletes can be contacted). Several bylaws have also been introduced over the years to facilitate a NCAA governance philosophy of competitive equity (Davis & Hairston, 2 0 13). Competitive equity essentially amounts to a leveling of the playing field through rules and regulations to allow those that have specific
- 17. resources, or other sources of competitive advantage, to remain competitive with those that have fewer resources. Some of rules in the NCAA manual make good sense to most observers, but some also seem to be quite trivial. For example, does the NCAA really need to stipulate to their Division I members that using a limousine or helicopter for transportation during a recruiting visit is not a good idea or that it is acceptable to feed student-athletes fruit, nuts, and bagels during vacation periods? The NCAA Division I working groups that resulted from the Division I Presidential Retreat in August of 2 0 11 were working toward remedying the proliferation of several meaningless or unenforceable regulations. The work of these groups attempted to revise legislation to allow for more autonomy for campuses in doing what they teel is right for their student-athletes, regardless of the impact on association wide competitive equity (Davis & Hairston, 2 0 13). Clearly rules are necessary in competitive sport, and the NCAA’s ruled-based system is required in an organization with so many stakeholders, sports, levels, and teams. However, the reality is that as time passes new situations have arisen which facilitated new rules, as well as created specific ways to circumvent the existing rules. The use of emerging technologies provides an example. Twenty years ago
- 18. there was obviously no need for rules to regulate contact via the internet or via text messaging. While some rules are instituted to address new realities associated 42 Sagas and W igley with operating collegiate athletics departments, others are put into place due to the identification of loopholes or “ways around” the current rules that have been discovered and are being used. These loopholes, while not against the letter of the law, may be in violation of the spirit of the rule. Although the NCAA membership appears to work to close loopholes as they become apparent, there can also be instances when an action is likely not a wise thing to do, but since it is not directly addressed in the written rules, doing the act is not considered a rules violation. Kvalnes and Hemmestad (2010) argue that, “a rule-based approach to ethics can encourage sport practitioners to adopt a loophole mentality that is likely to lead to more rather than less unethical behavior in sport” (p. 57). The case of the National Hockey Leagues’ (NHL) “Sean Avery Rule” demonstrates the potential pitfalls of rule-based systems. In a 2008 NHL game between Avery’s New York Rangers and the New Jersey Devils, Avery placed himself immediately in front
- 19. of the opposing goal-keeper to distract him and obstruct his view of the game and specifically the puck. In response to comments critical of his strategy, Avery pointed out—correctly—that he had broken no rule (TSN.CA Staff, 2008). Although the next day the NHL added a rule which banned his tactic, the point to be taken from this example is that it seems impossible to include every possible transgression or loophole in a written set of rules. Critics have argued that highly formalized organizations with stringent and complex rules create environments in which the rules themselves dominate decision- making. Gough (1994) contends that practical and ethical thought is hindered by systems based on legislative rules, creating an environment in which rules and ethics are inseparable. Such bureaucratic systems result in the mindset that “if it is legal, it is right” (Gough, 1994; Michael, 2006), and this may decrease the possibility of athletic administrators considering their own personal moralities, or considering specific circumstances when rendering judgment. Kihl (2007) surveyed NCAA Division I compliance officers to access the practical morality among athletic admin- istrators. One significant finding of Kihl’s work was that individuals, in the light of conflict between personal conceptualizations of what is right under the structured NCAA’s rule-based system, often resorted to “hiding behind the rules” (p. 296). By
- 20. interpreting the rules in a strict, ‘by-the-book’ manner, individual responsibility for determining right or moral conduct is diminished if not eliminated. We contend that the NCAA’s legalistic environment may lead stakeholders to choose strict adherence to the written rules of the membership, which relieves them of the more arduous and personal deliberations about what the right decision may be in a given circumstance. From a basic ethical perspective which dictates that what is ethical is right, good, and just and what is unethical is considered wrong, bad, or unjust (Kant & Paton, 2009), we believe that most sensible observers would contend that when a member institution conducts an activity that is impermissible according to the NCAA bylaws, it would be wrong (i.e., unethical). Further, when NCAA member institutions violate state or federal laws, it is also quite clear that they conducted themselves in an unethical way. These ethical situations can be considered black and white. However, we feel that there is a large “gray area” in the rules that are created and that ultimately govern the NCAA. That is, it is much less clear from an ethical lens if not violating a rule clearly suggests that something is right or good (i.e., ethical). In other words, is the NCAA bylaw really the moral minimum in which to base one’s actions as ethical or unethical? Furthermore, what is most
- 21. Wrong Things Right 43 indistinguishable in our opinion is if something can be deemed unethical as a result of a clearly misguided and unfair NCAA rule that is in the bylaws, or one that is altogether absent from the NCAA rules. Since the membership controls the bylaws and the NCAA controls the enforcement and interpretation of the bylaws, the power to adopt rules that are right, good, and ju st appears to be feasible and completely in the control of these actors. The purpose of this paper is to provide a conceptual framework in which to view the ethical leadership (or lack thereof) exhibited by NCAA Division I and Division III member institutions related to the "gray areas" of ethical decision making. Indeed, breaking an NCAA bylaw is not right and subsequently likely an unethical behavior. But is the adoption of a poor or misguided rule, and the omission and avoidance of other rules that can address real problems for key stakeholders, namely student-athletes, also unethical? We provide an analysis of four distinct cases (two from Division I and two from Division III) in which we feel that the avoidance of the adoption of a rule dictates behavior that is wrong and potentially unethical, especially when considering the
- 22. well-being, development, and academic success of student- athletes. Through these cases we contend that the reliance of NCAA bylaws as a moral minimum has led to many NCAA leaders maintaining their ethical high ground by doing some wrong things very well (i.e., without a violation of NCAA rules), but that they are failing to do the right thing by following a misguided rule, and failing to address and adopt others. College Athletics Ethical Leadership Continuum Model Many ethical decision making models exist and provide managers with excellent perspectives in which to view their behaviors from various ethical points of view. Literature related to ethical leadership encourages leaders to “do the right thing” (Bennis & Nanus, 1985; Garza Mitchell. 2012) which seems both obvious and simplistic. Yet, defining what is “right” or “ethical” can be difficult. Numerous scholars (Eddy, 2010; Groves & Larocca, 2011; Kanungo, 2001; Preskill & Brookfield, 2009) have made clear the relationship between leader- ship style and ethical perspective. Traditionally, authoritarian and transactional leadership models were considered most salient to discussions of organizations and ethical leadership. These models tend to focus on the organization and its rules, rather than individuals within the organization and external communities.
- 23. Although these approaches certainly have merit, current literature related to leader- ship focuses more so on deontological ethical values, as the trend is to emphasize collaboration and the notion of a social good (Garza Mitchell, 2012). The current focus on deontology-based leadership emphasizes a focus on individuals within organizations and external communities. The foundation of deontological ethics is what actors "ought" to do. In a post-Enron era of leadership marked by a call for transparency and increasingly dramatic change, leaders must be aware of the ethical foundations and implications of their leadership behaviors and styles so that they are able to make clear to stakeholders why and how decisions were made (Garza Mitchell, 2012). Deontological theories focus on duty, moral obligations and the “intentions of the decision maker and the means chosen to accomplish a task” (Armstrong & Muenjohn, 2008, p. 25). Given the emphasis on the obligations and 44 Sagas and Wigley duty the NCAA and its member institutions have in regards to the student-athlete as the primary stakeholder in the proposed model, this ethical theory seems most salient. In addition, considering that, as noted above, all circumstances and possible dilemmas cannot be accounted for in any set of written rules,
- 24. the fact that intentions and means are considered in deontological ethics makes this theory most salient for the current proposal and in collegiate athletics in general. One potential roadblock to achieving consistent ethical decision-making and leadership in collegiate athletics could be the lack of understanding by leaders that the issues or conflicts at hand are indeed ethical in nature. Research in related fields has demonstrated that leaders often marginalize the importance of ethics in the decisions they are charged with making. For example, in a study of high school principals, Campbell (1992) found that these educational leaders believed that their daily challenges were strategic, professional, administrative, political or procedural rather than ethically based. Other studies have also noted that ethics is not likely to be considered as a significant focus of work in leadership positions (Campbell, 1997: Mahoney. 2006; Starratt, 2004). In these and other studies, ethics was found to be viewed of secondary importance in terms of its relevance to authority (Ser- giovanni, 1992) or decision-making (Shapiro & Stefkovich, 2005). The framework we have developed to analyze the gray areas of ethical lead- ership in the NCAA integrates management and leadership thought with a deon- tological ethics lens. Our ethical framework is primarily built on the leadership
- 25. and management thoughts of Bennis and Nanus (1985) as a frame for how leaders governing NCAA sports “ought” to behave. These authors contend that managers are people who do things right but that leaders are people who do the right thing. Bennis later expanded on this notion that distinguishes leaders from managers by suggesting “I often observe people in top positions doing the wrong thing well” and that “they do not pay enough attention to doing the right thing, while they pay too much attention to doing things right” (Bennis, 1989, p. 18). A recent commentary advanced by Gillen (2012) expanded on this work suggesting that doing things right is not enough in providing innovative leadership. Addressing the topic of military behavior, Gillen suggests that doing things right is primarily focused on managing the present and that doing the right thing is essentially concerned with selectively abandoning the past, while creating the future. Fundamentally, Gillen’s framework suggests that managing the present is tactically focused on compliance, the status quo, and managing performance and that creating the future is strategic and critical in nature, and focused on growth and innovation. We expand on these perspectives and suggest that NCAA actors who only do things right, while avoiding or rejecting the difficult critical analysis required to ascertain the right things to do, are failing to provide innovative and ethical lead-
- 26. ership for the association. Given the continually elevated expectations, visibility, and resources available to NCAA institutions, a continuous selective abandoning of the past in strategic ways, while subsequently creating the future, is absolutely essential to providing ethical leadership. Doing things right is not enough, and doing the wrong things right is clear ethical failure. Doing the right thing is the moral minimum in which to assess ethical behavior and leadership. And, in our opinion, the primary stakeholders in which to consider what is right or wrong should be the NCAA student-athletes, and not coaches, an athletic department or program, a professional league, or media conglomerate. W r o n g T h i n g s R i g h t 4 5 This framework is depicted in Figure 1 as the College Athletics Ethical Leadership Continuum. We contend that ethical leadership can be conceived on a continuum in which a moral minimum establishes if a decision is right or wrong. As suggested in the model, we feel that the current moral minimum is likely just above behaviors that are clearly illegal according to federal or state laws, or NCAA, conference, and institutional rules. However, we would like to suggest that the moral minimum be raised to a much higher standard than just above The idea
- 27. of doing things right. That is, we suggest that ethical leadership in the NCAA is only exhibited by minimally doing the right thing for student- athletes, first and foremost. This higher ethical ground considers the student- athlete as the primary stakeholder and applies critical analysis to present practices to allow for a selec- tive abandonment of past practices, to lead a moral future of college sports. These two ethical positions are connected with what we consider to be the current gray area of ethical decision-making in college athletics, one in which most actors are concerned with serving multiple stakeholders who are often in direct opposition to the development, well-being, and academic success of student- athletes. Examples of stakeholders whose interests could potentially divert the focus of collegiate athletics away from the student-athlete include but are not limited to: media conglomerates, sporting goods companies, advertising and sponsorship entities, and professional leagues. This position that accepts multiple stakeholders oftentimes accepts the Doing the Right Thing * P r i m a r y s t a k e h o l d e r is t h e s t u d e n t - a t h l e t e • C r it ic a l a n a ly s is o f p r e s e n t w h i l e s e l e c t iv e ly a b a n d o n i n g t h e p a s t
- 28. * L e a d e r s h ip f o c u s e d o n t h e f u t u r e • S t r a t e g i c a l l y l o o k in g f o r g r o w t h a n d i n n o v a t i o n • A v o id in g t h e w r o n g t h in g s t o d o — ---------- ------------------------------------------ Proposed Moral Minimum Doing Things Right • M u l t i p l e c o m p e t i n g s t a k e h o l d e r s i n c lu d in g m e d i a r ig h t s h o ld e r s , in s t i t u t io n s , s t u d e n t - a t h l e t e s , c o a c h e s • A c c e p t a n c e o f s t a t u s q u o • M a n a g i n g t h e p r e s e n t • T a c t i c a l l y f o c u s in g o n c o m p l i a n c e ___________ • D o in g t h e w r o n g t h in g s Current Moral Minimum D o i n g t h i n g s W r o n g C o m p l ic i t a n d o v e r t r u l e b r e a k in g C o m p l ic i t a n d o v e r t l a w b r e a k in g O b v io u s s t u d e n t - a t h l e t e e x p l o i t a t i o n
- 29. Figure 1 — College Athletics Ethical Leadership Continuum 46 Sagas and Wigley status quo for student-athletes, and rejects the establishment of rules that could protect, reward, and elevate them. Compliance is critically important in this gray area and thus things are often done right (i.e., by the rules), but we believe that there are several instances in which actors are doing the wrong things altogether. Thus, we believe that as a collective the NCAA membership and leadership are not achieving a moral minimum that is necessary to progressively evolve as an association in the best interests of student-athletes. Although perhaps obvious to some, recent developments in collegiate athletics make necessary a statement or rationale for the emphasis of the student-athlete as primary stakeholder. The basis for and the foundation of the NCAA is the concept of the student-athlete. As quoted from the NCAA strategic plan, the Core Purpose and Values statement of the organization reads: Our purpose is to govern competition in a fair, safe, equitable and sportsmanlike manner, and to integrate intercollegiate athletics into higher education so that the educational experience of the student-athlete is paramount
- 30. (NCAA, 2014a). Furthermore, it is clear from the messages that the current President of the NCAA sends regarding the mission and values of the organization that the student- athlete experience is the primary goal of the work of the association. For example, this statement from President Mark Emmert’s “About” page on the NCAA Website clearly spells out the priority that should be given to student- athletes: No matter the size of our stadiums, the number of scholarships we offer or the number of zeros in our bottom line, we share the same goal: to promote student-athlete success in the classroom, on the field and in life. Decisions that support that goal align us with the mission of higher education - where the student is always the priority (NCAA, 2014b). Nowhere to be found in this fundamental charge or the core values of the NCAA are media companies, corporate sponsors, or other economically motivated stakeholders. It is our contention that college athletics at its finest occurs when the student-athlete is paramount. Case Analysis To demonstrate the application of this ethical leadership model, four cases are presented and analyzed. Each case focuses on the gray areas of ethical leadership
- 31. and represent circumstances at both Division I and Division III levels. NCAA Division I Cases The work of several of the NCAA Division I working groups that evolved from the 2011 NCAA Presidential Retreat made some excellent progress toward abandon- ing the past and refocusing the future with a focus on student- athletes. As noted by the NCAA in summarizing the complex process, “The goal of deregulation is to protect and enhance the student-athlete experience, shift the regulatory focus from competitive equity to fair competition and allow schools to use the natural advantages of geography, a talented student-athlete or deeper pockets” (NCAA, Wrong Things Right 47 2013, p. 1). However, procedural and communication mishaps, attempted and successful membership voting overrides, and overall NCAA governance issues halted much of the significant progress made by these groups. As suggested by the two cases below, we feel that several member institutions’ voting behaviors and statements clearly failed to raise the moral minimum to above the status quo for NCAA student-athletes. Multiyear Scholarships. In 1973, the NCAA membership adopted legislation that
- 32. limited institutions to awarding a maximum athletic scholarship, which includes tuition, required fees, room, board, and books, to one calendar year (Davis & Hairston, 2013). In the fall of 201 I, the NCAA Board of Directors adopted new legislation that permitted institutions to award multiyear athletic scholarships for a maximum of five years (Davis & Hairston, 2013: Hosick, 2012). The new bylaw did not require that institutions award multiyear scholarships but did give them the option to do so. We feel that this legislation clearly protects student-athletes from coaches that may use their discretion in renewing a one-year scholarship offer to run athletes off of teams after a year or two to make room for better players. Furthermore, the one-year scholarship also allowed institutions to not renew athletic scholarships to student-athletes that were unable to participate in their sport because of an athletic related injury. In essence, colleges and universities had unlimited discretion to renew or not renew an athletic scholarship, which clearly provided the balance of power in the player—coach relationship to the coach, as student-athletes are often defenseless if their scholarship offer is not renewed at the end of their one-year agreement (Segrest, 2011). We contend that ethical leadership was not exhibited in relation to this important
- 33. piece of legislation in two specific ways. First, the legislation was narrowly upheld, by just two votes, in an override vote of the membership that occurred in February of 2012. A total of 205 institutions voted against the legislation, but 207 of the 330 votes that were submitted by institutions and conferences were needed to reach a five-eighths majority. In media accounts reporting on the override attempt, it was suggested that several of the opponents of the legislation were much more inter- ested in retaining competitive equity related to recruiting than they were student- athlete welfare. For example, Boise State, which voted in support of the override, suggested that the multiyear scholarship would be a recruiting disaster and that it would pit wealthy schools against those with less financial means. Further, it also suggested there are never guarantees that student-athletes will fit in a program and thus assuring them a commitment beyond one year is not a good strategic practice (Associated Press, 2011). However, what was most disturbing about the override votes were not the motivations offered for objecting to the legislation; it was the roll-call report which indicated that several schools with significant wealth and means were not interested in guaranteeing the financial welfare of their student athletes, despite their budgetary capacity to do so. While a majority of the override votes
- 34. were submitted by programs with smaller football programs that compete at the NCAA Football Championship Subdivision level, several well-resourced Football Bowl Subdivision (FBS) institutions also voted in support to the over- ride (e.g., Florida State University, University of Texas, University of Arizona, University of California-Berkeley, and University of Southern California). 4 8 S a g a s a n d W ig le y Furtherm ore, it was quite interesting that Yale University, which does not even offer athletics related financial aid, also voted in support o f the override (Wolverton, 2013). Secondly, we feel that unethical leadership has continued to be exhibited by several institutions even now that coaches are empowered to offer multiyear scholarships. As Dent (2013) notes, since the adoption of the rule in 2011, mul- tiyear scholarships are still fairly rare. Dent’s research, obtained through open records requests, suggested that of the 82 institutions analyzed at the Division I FBS level, only 16 have offered more than 10 multiyear scholarships, 32 have offered at least one but less than 10, and 34 had not offered any at the time of his analysis in February of 2013. The list of institutions that
- 35. have failed to pro- vide a multiyear commitment to their athletes included several well-resourced institutions like the University of Oregon, the University of Texas, Clemson, and Texas A&M. Flowever, several institutions have clearly exhibited ethical leader- ship on this issue by awarding multiyear scholarships to their athletes across all sports, including Fresno State ( N = 316), Illinois ( N = 293), and Purdue ( N = 122). When assessed against the ethical leadership model we are proposing, it is our contention that the well-resourced institutions from the larger FBS con- ferences were more interested in preserving the status-quo than leadership that is looking to grow and innovate the treatment of student- athletes. Furthermore, most institutions have yet to use the multiyear scholarship to any great degree, which demonstrates that they are more interested in preserving the power of the institution and coach as the primary stakeholders, and are not considering the student-athlete as the principal beneficiary of the opportunity to receive a long- term commitment. The $ 2 ,0 0 0 M is c e lla n e o u s E xpense A llo w a n ce . As indicated, a full financial scholarship for NCAA Division I athletes consists of tuition, required fees, room, board, and books. In late 2011, one of the NCAA working groups, the Student- Athlete Well-Being Working Group, submitted a proposal to the NCAA Board of
- 36. Directors to allow institutions to provide financial support for student athletes that went above this defined minimum scholarship. This legislation allowed institutions to also provide student-athletes funds to pay for miscellaneous expenses, such as laundry and occasional travel home. The proposed amount of this additional aid was the lesser of an institution’s true cost of attendance or $2,000 (Davis & Hairston, 2013). The NCAA Board of Directors approved this legislation in their January 2012 Annual Meeting, which allowed schools to immediately offer the additional $2,000 financial aid in their scholarship offers to student-athletes that were receiving the equivalent of a full grant-in-aid. Thus, student-athletes on partial scholarships were not eligible to receive any of the $2,000 allowance (Davis & Hairston, 2013). Proponents of this additional aid for athletes suggested that athletic financial aid was artificially restricted to just certain aspects of a student-athletes’ cost of attendance in the name of competitive equity. In addition, non- student-athlete students on merit based scholarships regularly receive academic scholarships that cover the true full cost of attendance which can include transportation costs, a personal expense allowance, computer and cell phone expenses, and even a cloth- ing maintenance allowance. The $2,000 additional stipend would thus take a step
- 37. toward covering some, if not all, of these expenses for student- athletes. Wrong Things Right 49 The adopted legislation was suspended by the Board of Directors in December of 2011 after strong opposition and a successful override vote by NCAA Division I membership. Similar to the override votes conducted for and against the multi- year scholarship legislation, the failure to provide ethical leadership in support of student-athlete welfare can be viewed through an analysis of the justifications and the voting roll-call in support of the override. In our view, these institutions did advance some legitimate concerns with regard to gender equity, but also advanced commentary that was much more concerned with preserving their competitive advantage than on student-athlete welfare at the institutions that could afford to provide the allowance. For example, Southern Louisiana University suggested that the rule would only benefit the “haves and would widen the chasm between BCS schools and non BCS schools” (Dennie, 2011, p. 10). East Tennessee State University added that the expense allowance would create an “arms race effect at a time of economic hardship when many institutions are facing budget cuts across campus (Dennie, 2011, p. 6). Tennessee Technological
- 38. University even went as far as suggesting that the allowance amounted to “tattoo money”, which presumably meant that student-athletes’ needs for the additional aid will be used to purchase frivolous items or services like personal tattoos. Further, some Ivy League institu- tions (i.e., Harvard, Cornell), which do not even offer athletic scholarships, voted in support of the override (Dennie, 2011). In light of many of these concerns, the NCAA Board of Directors did suspend the legislation and vowed to revisit the potential to meet this very real shortcoming for student-athletes through a future piece of legislation that was attentive to the feedback they received from the membership. In our opinion, when assessed against our proposed College Athletics Ethical Leadership Continuum, those voting in favor of the override clearly failed to do the right thing for NCAA student-athletes at the schools that could clearly afford to pay lor these additional miscellaneous expenses in a manner that is similar to other merit based scholarships on these same campuses. Further, we agree with University of Florida president, Bernie Machen, who was quoted as saying that it is “just embarrassing” that the increase in expenditures in intercollegiate athletics has primarily been funneled to increase coaches’ salaries and improve and build facilities, and has yet to result in additional funding for student-athletes to meet their very real and actual costs of
- 39. attending a university as a student (Staples, 2012). This funneling of funds away from student-athletes is a good example of how member institutions continue to placate several competing stakeholders at the expense of student-athletes, and clearly continue to preserve the status quo related to supporting and improving student-athlete well-being. NCAA Division III Cases Comparisons between Division I and III athletic programs commonly focus on economically related variables such as budgets, television contracts, licensing deals, and facilities, or the reality that athletically-related financial aid is allowable in Division I, and not allowable at Division III. However, although more subtle, an equally important difference between the divisions lies in the notion of “institutional autonomy”. Although a manual of 284 pages is in place, in terms of important aspects of intercollegiate athletics such as admissions, academic standards, and eli- gibility requirements, Division III institutions are granted by membership the ability to establish many of their own individual standards and restrictions. In keeping with 5 0 S a g a s a n d W ig le y the notion that student-athletes at these institutions should be treated no differently
- 40. than other members of the student body, in most instances student-athletes must simply be eligible to enroll and remain in good academic standing to participate. The institutional standards for the student body are the exact standards required for student-athletes, rather than a set of standards handed down from the NCAA. Discussions of drug testing and mandatory penalties for student- athletes who failed tests for street drugs provide one of many examples of Division III membership protecting vehemently the notion of institutional autonomy. A report published by the NCAA from the 2013 Presidents Council and Presidents Advisory Group meet- ings included the statement that the majority of institutions “echoed the sentiment of a shift towards an approach that allows for more institutional autonomy when possible" (Ohle & Herzberger, 2013, p. 1). On the 40th anniversary of Division III. the NCAA’s Champion Magazine described the ban on athletic scholarships and institutional autonomy as “the two defining characteristics of Division III” (Schwarb, 2014, p. 57). Institutional autonomy is an aspect of Division III athletics that on the surface seems positive. The theory behind such decision-making freedom is that schools can and will do what is best for their student-athletes and their institutional missions and values. However, as Guilford College Sports Studies Professor Bob Malekoff
- 41. points out, “The possible outcomes of institutional autonomy is that members would try to compete in ways that go against the ‘academics first' mentality of the NCAA” (Childs, 2010, p. 1). For example, some Division III institutions require only that a student be eli- gible to enroll to compete. No stipulation is in place which makes a student ineligible while on academic probation. This could mean that a freshman student-athlete in a spring semester sport could fail all of his/her classes in the fall semester and par- ticipate fully in the spring semester. The result is a student on academic probation, with no credits earned and a 0.0 grade point average being allowed to participate. Although this is perhaps an extreme example, and may not occur frequently, there are Division III schools which allow students to compete without restriction even when their grade point averages are below the minimum standard for graduation. Examining certain realities of Division III athletics through the lens of out- proposed College Athletics Ethical Leadership Continuum might indicate how some institutions choose to be competitive by doing things right, rather than doing the right thing. Foremost is the notion of the student-athlete as the primary stakeholder. We question the ethics of policy— or lack of a policy— which allows students who are not just struggling academically but failing academically to
- 42. continue to participate fully in athletic competition. If indeed the success of the student-athlete is of primary in importance, then the time, effort, and focus required for athletics should be shifted to academic performance. Of course critics will point to research that supports the notion that membership on a team is predictive of retention and graduation, fearing that if a student-athlete is completely removed from a team he/she will leave the institution (Johnson, Wessel, & Pierce, 2013/2014). We counter by suggesting that membership develop a system in which the student-athletes in question be allowed to maintain participation, but with agreed upon restrictions and academic support. It is our contention that if student-athletes are allowed to maintain their social grouping and return to competition when academic improvement is realized, these student- athletes will be more likely to stay enrolled and succeed academically. Wrong Things Right 51 Lack of Progress-Toward-Degree Requirement. All student- athletes at the Divi- sion I level are subject to the NCAA’s “Progress-Toward- Degree” legislation. This legislation mandates that to remain eligible for competition a student-athlete must earn six hours of credit toward a degree the preceding regular academic term to
- 43. be eligible for the next regular academic term. In addition, student-athletes must complete 40% of the coursework required for a degree by the end of their second year, 60% by the end of their third year and 80%. by the end of their fourth year (NCAA Division I Bylaw 14.4.3). Enacted in 2003, this legislation is intended to increase retention and graduation rates by ensuring that student-athletes take meaningful course loads, rather than four years of introductory or low level classes in an effort only to remain eligible. At the Division III level the NCAA requirement is that student- athletes must be enrolled in a minimum full-time program of studies leading to a baccalaureate or equivalent degree and maintain satisfactory progress toward that degree (NCAA Division III Bylaws 14.01.2, 14.1.8.1, and 14.1.8.6.4). In many cases this means simply that the student-athlete be enrolled in a minimum of 12 credit hours. Where institutional autonomy comes into play is in the determination of how “satisfactory progress” is defined. In many instances as long as a student remains eligible to enroll tor another semester, he or she is considered to be making satisfactory progress and is therefore deemed eligible for athletic competition. Often times the only standard required to be eligible to enroll is to maintain an established cumulative GPA. Some Division III institutions use a sliding scale of GPA to determine eligibility such
- 44. as 1.6 for student-athletes with 0-23.99 credit hours, 1.8 for student-athletes with 24-53.99 credit hours, and 2.0 for student-athletes above 54 credit hours, while others require a 2.0 or higher regardless of total credit hours earned. As troubling as participating in athletic competition with a 1.6 cumulative GPA may be, the possible unethical issue occurs due to the lack of a percentage of degree completion requirement based on years enrolled. Since Division III requires only that students be enrolled in 12 credit hours to compete, and not that they complete a percentage of a degree each year, it is possible for a student- athlete to enroll in 12 credit hours and then withdraw from any number of those credit hours after the end of the competitive season. At some institutions, for instance, as long as a football player enrolls in 12 credit hours at the beginning of the season, and does not drop below 12 credit hours during competition, he/she would be continually eligible to compete. Even if the player withdraws from six or more credits the day after the final game of a season, he/she has broken no rule and is eligible to compete the following season as long as his/her GPA remains in the accepted range. The end result of this cycle of withdrawing from classes to maintain the minimum GPA is student-athletes who have exhausted their athletic eligibility, yet due to numerous semesters in which a small number of credit hours were actually
- 45. completed, the student-athlete may be semesters or even years away from completing a degree. Critics might argue that the system in place is acceptable due to the notion that in Division III student-athletes are to be held to the same set of standards as the student body, and members of the student body are not required to meet progress toward degree standards. However, in terms of our proposed model, these critics fall prey to accepting the status quo and managing the present at the very least, and potentially tailing to consider the student-athlete as the primary stakeholder. Member institutions must consider the outcomes for student- athletes who have 5 2 S a g a s a n d W ig le y exhausted their eligibility and yet remain semesters or years from graduating. If the institution is the primary stakeholder, this may be doing the right thing since tuition revenues continue to be paid by those students who are retained for addi- tional semesters, but we question the ethics of allowing students to spend four or five years at an institution, amass considerable student-loan debt, and yet, end up not even relatively close to a degree. R o s te r S iz e s . Two realities give rise to the second
- 46. dilemma to be discussed related to Division III athletics, that of roster sizes. First, again due primarily to the concept of institutional autonomy, in Division III there are no limits on roster sizes for athletic teams. Second, many small, private, Division III institutions are truly “tuition driven”, meaning that a primary source of institutional revenue is generated by tuition dollars. This is in significant contrast to the Division I model wherein funding often comes from multiple sources. In 2013, Methodist University, a Division III school in the USA South Confer- ence boasted a 2013 football roster of 162 student-athletes. The average roster size of the four teams earning a birth into the National Semi-Finals in the 2013 season was 120. This figure does not include “freshman rosters” which in some cases add an additional 50 or more players to program totals. This is not an uncommon phe- nomenon across sports in Division III athletics. Baseball teams carry as many as 80 players, basketball teams may include 20 plus members, and sports like lacrosse and field hockey are also known to have what on the surface seem to be extreme roster sizes. Even with the inclusion of a Junior Varsity (JV) team and schedule, it seems difficult to imagine that all or even a high percentage of these athletes will receive meaningful playing time. Upon further consideration, the baseball roster size of 80 seems more egregious than even the football roster size of
- 47. 160. In football, with separate offensive and defensive units, two special teams units, and unlimited substitutions during play, it is easily conceivable that 60 players could see action in a given contest. Baseball however, includes only nine field players and more importantly limits substitutions (once a player leaves the line- up that player cannot return to action during that game), making it likely that on average 12-15 players will participate in any given game. As “the student-athlete experience” is central to the Division III philosophy, it seems incongruent to maintain teams of such size. Of course the argument could be made that being a part of a team gives students a robust experience, as much has been written about the benefits of team member- ship. However, the relationship between playing time and retention and therefore graduation must be considered given the Division III emphasis on academic success. According to Johnson et al. (2013/2014), playing time was one variable which was found to be predictive of retention. In addition, the possibility exists that the existence of Varsity and JV designations might create an “us” and “them” environment within a given team. Some Division III institutions avoid academic designations such as “honors” and “advanced” in part to avoid this same “us” and “them” mentality among the student body.
- 48. Given the tuition-driven theme in place at many Division III schools, it seems that coaches and athletic departments are charged with, and perhaps pressured to, maintain large roster sizes to generate tuition revenue for their institutions. Philo- sophically, athletic departments have become institutional recruiting units working in conjunction with, and sometimes as adjuncts to, admissions departments. This Wrong Things Right 53 analogy is even more salient considering at many Division III schools, the overall student body includes a high percentage of student athletes. On average student- athletes make up 19% of Division III undergraduate student bodies but numbers can reach 40-50% (U.S. Department of Education, 2012). For example, data provided by the U.S. Department of Education (2012) identified the following percentages of undergraduate enrollments who participate on athletic teams at these Division III institutions: Averett University (VA) 43%; Bethany College (WV) 51%; Bluffton University (OH) 46%; Defiance College (OH) 45%; Huntingdon College (AL) 46%; LaGrange College (GA) 40%; US Merchant Marine Academy (NY) 47%. In a higher education market place that is increasingly competitive in terms of attracting students, numerous institutions have added sports
- 49. such as football with a primary goal of increasing admissions figures, and therefore tuition revenues. The roster size issue has a history at the Division I level. Until 1973 the NCAA did not limit the number of scholarships that could be awarded by individual institu- tions. Essentially, schools could award as many scholarships as they could, or chose to, afford. Abuse ot this open field of scholarship awarding was included in Gary Shaw’s eye-opening book Meat on the Hoof: The Hidden World o f Texas Football (1972). Before the limitations on scholarships— first in 1973, then 1978 and most recently 1992—the University ofTexas would use scholarships to stockpile athletes in the talent rich state ofTexas and beyond. The strategy was based on the notion, for example, that not only would the University of Texas recruit and attract the state’s best quarterback, but also the second, third, fourth, and fifth best quarter- backs, not because their coaching staff believed that all five could contribute, but so that their opponents in what was then the South West Conference would not have access to these players— thus essentially forcing schools like Texas A&M, Baylor, and Houston to battle for the sixth, seventh, and eighth best players at the position. Although not the sole motivation, the scholarship limits were put into place for the sake of parity on the macro level, and for the fairness to the student-athletes
- 50. being convinced to choose the University ofTexas when in reality there was never a chance for them to actually play. O f course coaches and administrators denied this as a recruiting plan, but it became increasingly clear that with roster sizes of 100 or more (the 1972 team included 110 student-athletes), only a small percentage of the student-athletes would ever compete in any meaningful way. Interestingly, NCAA membership places roster size limitations on teams com- peting in postseason play. Although this is largely a cost containment issue, such limits make clear the idea that smaller numbers of players are necessary to play the game at the highest level. In football, for instance, a team qualifying for playoff competition is allowed only 58 players on its roster. Clearly the NCAA and member institutions go to great lengths to ensure the highest level of play in each division. Apparently a 58-player roster is sufficient to reach this goal. In other words, even considering economic implications, if the NCAA membership believed that more than 58 players were necessary to put the best product on the field, playoff roster size limitations would be increased accordingly. This is not to say we believe a scholarship at Division I or a roster spot at Division III should guarantee playing time, but recruiting players who have no realistic chance of playing seems unethical. Prima facie it
- 51. appears that the practice of recruiting and bringing to campus so many student-athletes is being done for the purpose of revenue generation, rather than to provide real and meaningful athletic 5 4 S a g a s a n d W ig le y opportunities. Member institutions should consider whether they are doing the right thing by recruiting student-athletes who have little or no chance of actually “seeing the field”. More critically, are the student-athletes in question being sold a “bill of goods” that is misleading and unjust? NCAA President Mark Emmert recently stated that, “We have a responsibility to provide student-athletes with the opportunity to compete in a principled, honest environment, regardless of the division or resource level” (Emmert, 2014, p. 5). The membership needs to consider whether it is operating in a principled and honest manner when it comes to roster sizes and the realities of tuition- driven institutions. Again considering the tenets of the proposed College Athletics Ethical Continuum, it does not seem clear that the student-athlete is the primary stakeholder. Do extreme roster sizes reflect this principled and honest environment called for by Emmert? Or is this again a case of the institution being the prioritized stakeholder, and perhaps
- 52. doing the wrong thing right? Both cases described herein demonstrate a trend on behalf of membership institutions to manage the present rather than selectively abandoning strategic ways of the past to manage the future. Division III institutions, in the current competitive and economically difficult era manage athletic programs to increase tuition revenue. As was pointed out, this model results in athletic departments acting like arms of the admissions office rather than student-centered departments intended to create equitable, engaging, and beneficial experiences for all students. Continually allowing student-athletes to enroll and compete in the absence of meaningful progression toward graduation is not in the best interest ot the student- athletes, particularly considering the escalating amounts of student loan debt many student-athletes amass. Similarly, maintaining rosters beyond which meaningful playing time is possible gives some student-athletes unrealistic expectations and sets them up for disappointment and feelings of failure. Although our focus is the student-athlete as primary stakeholder, the institution’s perspective deserves attention here as well. Considering the importance of data related to retention and graduation rates (Johnson et al„ 2013/2014), it seems apparent that an institution would benefit from the proposed changes. It seems intuitive that student-athletes
- 53. who make continuous progress toward a degree, and who have quality athletic experiences, are more likely to remain enrolled and graduate. In the end, the motiva- tion to maintain the current system is clear. The status quo generates higher levels of tuition revenue for Division III institutions in a competitive higher education marketplace. However, the current system does not adequately take into consid- eration the long-term wellbeing and academic success of many student-athletes. C o n c lu s io n s Utilizing the proposed College Athletics Ethical Leadership Continuum as a lens, it seems clear that instances exist in which NCAA member institutions, by virtue of their role in interpretation and sanctioning the NCAA itself, could work to create an environment in which student-athletes are the primary stakeholder. That is, we suggest that college athletics leaders should continually provide a critical consideration of the present and demonstrate leadership for innovation, growth and the future. The four cases presented provide examples of policies, practices, and bylaws that potentially fail to promote the principled and honest environment Wrong Things Right 55 called for by the NCAA’s President (Emmert, 2014). We believe
- 54. that obvious and clear cut examples of cheating and rule breaking are addressed appropriately by the NCAA and member institutions, but the cases herein expose the existence of a gray area between doing things right and doing the right thing. This gray area is dynamic rather than constant and requires careful and at times difficult consideration ot key outcomes for student-athletes. Again, under consideration here are not those examples of obvious wrong-doing, but the more subtle interpretations of existing regulations—those cases when a clear moral minimum may be difficult to establish. We acknowledge that our proposal of a higher moral minimum that insures that we do things right for our student-athletes first and foremost can come at a cost. Although the cost in question may come in different forms depending on the NCAA division, it is clear that creating an environment in which student-athletes are the primary athletic stakeholders requires critical analysis and a reallocation of resources, both human and financial. For example. Division III institutions could face potential decreases in tuition revenue, by either adopting our proposed position that would require meaningful progress toward degree legislation, and by reining in roster sizes. We understand and appreciate the implications of losses and further realize that additional programming or savings would be needed to recover this
- 55. lost revenue. An example for these compromised Division III institutions might be adding additional sports, adding new and attractive academic programs, or increas- ing student activity offerings to attract new students to replace those lost as a result of these proposals. At Division I institutions, that regularly offer both head and assistant coaches multiyear contracts worth millions of dollars in several revenue and nonrevenue sports, there is absolutely no excuse for not reallocating some of these same long-term financial commitments toward student- athletes. At the very least, these schools should award full cost of attendance scholarships for a full five years as the minimum award to athletes on a full grant in aid, and a percentage of this amount to those on partial scholarships. In addition, it should be noted that we do not intend to say that all NCAA rules are unethical and that all NCAA members fail to do the right thing when developing and enforcing the rules. Obviously, the membership has in place numerous rules, restrictions, and standards which are beneficial to the welfare and academic success of student-athletes, and are thus already reaching the proposed higher moral minimal necessary to provide true ethical leadership in college sports. However, we also feel that in several critical areas, such as the situations reviewed in our case presentations, the moral minimum in which several NCAA members are acting on is just too low
- 56. and we are stuck with a present that is determined to just do the wrong things right. We believe there are several additional cases that could be examined through the lens of the College Athletics Ethical Leadership Continuum to better understand if current policies and behaviors meet a higher moral minimum and the right thing to do standard. These analyses can include the assessment of such issues as institutional autonomy, coach and administrator salaries, initial eligibility standards, drug testing Policies, university admissions for student-athletes, academic support services, media rights contracts, game scheduling and start times, student- athlete transportation, and potentially even the role of faculty in the governance process of college athletics. In conclusion, through this commentary we have advanced a College Athletics Ethical Leadership Continuum, which we feel can be used to assess the behaviors, rules, and decisions made by NCAA membership. A fundamental principle of this 56 Sagas and Wigley conceptual model includes holding the student-athlete as the primary stakeholder of college sports activities, a standard easily justified given the core values and mission o f the NCAA. Analyses o f four specific issues
- 57. currently challenging the well-being, success, and development o f student-athletes were used to provide a critical analysis of the present to suggest more enlightened decision making for the future. Our analyses and conclusions for the four cases we chose to focus on indicated that the NCAA membership has compromised the wellbeing and academic success o f student-athletes. References Armstrong, A., & Muenjohn, N. (2008). The ethical dimension in transformational leader- ship. Journal o f Business Systems. Governance and Ethics, 3(3), 21-35. Associated Press. (2011). Schools object to scholarship plan. ESPN College Sports. Retrieved from http://espn.go.com/college- sports/story/_/id/7392725/schools-object- ncaa- multiyear-scholarship-plan Bennis, W.G., & Nanus, B. (1985). Leaders. New York, NY: Harper & Row. Bennis, W.G. (1989). On becoming a leader. New York, NY: Addison Wesley. Campbell, E. (1992). Personal morals and organizational ethics: How teachers and principals cope with conflicting values in the context of school cultures. (Unpublished doctoral dissertation). University of Toronto, Canada. Campbell, E. (1997). Ethical school leadership: Problems of an
- 58. elusive role. Journal o f School Leadership, 7(3), 287-300. Childs, P. (2010). Division 111 prepares to track athlete graduation rates. The Guilfordian. Retrieved from http://www.guilfordian.com/archives/2010/03/26/division-iii- prepares- to- track-athlete-graduation-rates/#sthash.KcyLWiZR.dpuf Davis, T., & Hairston, C.T. (2013). NCAA deregulation and reform: A radical shift of gov- ernance philosophy? Oregon Law Review, 92, 77-128. Dent, M. (May 19, 2013). Colleges, universities slow to offer multiyear athletic scholar- ships. Pittsburg Post-Gazette. Retrieved from http://www.postgazette.com/ sports/ Pitt/2013/05/19/ Colleges-universities-slow-to-offer-multiyear- athletic-scholarships/ stories/20130519 Dennie, C. (December 15, 2011). A list of override requests. College Sports Law Blog. Retrieved from http://www.bgsfirm.com/images/stories/2k_overrides.pdf Eddy, P.L. (2010). Community College Leadership: A Multidimensional Model fo r Leading Change. Sterling, VA: Stylus Publishing. Emmert, M. (2014). Staying grounded in the core values. NCAA Champion, 7(1), 5. Garza Mitchell, R.l. (2012). Doing the right thing: Ethical leadership and decision making.
- 59. New Directions fo r Community Colleges, 159, 63-72. doi: 10.1002/cc.20027 Gillen, D. (2012). Doing the right thing versus doing things right. Air Force Print News Today, Retrieved from http://www.au.af.mil/au/awc/awcgate/af/doing-right-thing.htm Gough, R. (1994). NCAA policy’s strangling effect on ethics. Record, 3-5. Groves, K.S., & LaRocca, M.A. (2011). An empirical study of leader ethical values, trans- formational and transactional leadership, and follower attitudes toward corporate social responsibility. Journal o f Business Ethics, 103, 511-528. doi: 10.1007/s 10551 - 0 1 1-0877-y Hosick, M.B. (February 17, 2012). Multiyear scholarship rule narrowly upheld. NCAA.org. Retrieved from http://www.ncaa.org/about/resources/media- center/news/multiyear- scholarship-rule-narrowly-upheld Johnson, J.E., Wessel, R.D., & Pierce, D.A. (2013/2014). The influence of select demo- graphic, academic, and athletic variables on the retention of student-athletes. Journal o f Student Retention: Research. Theory into Practice, 15, 135- 155. Wrong Things Right 57 Kant, I„ & Paton, H.J. (2009). Groundwork o f the metaphysic o
- 60. f morals. Scranton, PA: H arper Perennial M odern Classics. Kanungo, R. (2001). Ethical values o f transactional and transform ational leaders. Canadian Journal o f Administrative Sciences, 18, 2 5 7 -2 6 5 . d o i:1 0 .1 1 1 1/i 1936-4490 2001 tb00261.x Kihl, L. (2007). M oral codes, moral tensions and hiding behind the rules: A snapshot of athletic adm inistrators’ practical morality. Sport Management Review, 10 279-305 d o i: 10.1016 /S 1441 -3523(07)70015-3 Kvalnes, 0 . , & H emmestad. L. (2010). Loophole ethics in sport. Nordic Journal o f Applied Ethics, 4, 57-67. Mahoney, D. (2006). Ethics and the school administrator: Balancing today's complex issues. Lanham, MD: Rowman & Littlefield. Michael, M.L. (2006). Business ethics: Law o f rules. Business Ethics Quarterly 16 475-504 doi: 10.5840/beq200616445 National C ollegiate Athletic Association. (January 2, 2013). Breakdown o f Division I rules changes. NCAA.org. Retrieved from http://fs.ncaa.org/Docs/NCAANewsArchive/2013/ january/breakdown% 2B of% 2Bdivision% 2B i% 2Brules% 2Bchangesdt'30.htm l National Collegiate A thletic Association. (2013, A ugust 1). 2013-2014 Division I Manual:
- 61. Operating Manual. Retrieved from http://w ww .ncaapublications.com /p-4324-2013- 2014- ncaa-division-i-m anual.aspx National Collegiate Athletic Association. (2013. August 1). 201.1-2014 Division 111 Manual: Operating Manual. Retrieved from http://w w w .ncaapublications.com /p-4324-2013- 2014- ncaa-division-ii-m anual.aspx National Collegiate Athletic Association. (2014a). NCAA Core Purpose and Values. Retrieved from http://w ww .ncaa.org/about/ncaa-core-purpose-and-values National C ollegiate A thletic Association. (2014b). About. Office o f the President. Retrieved from: http://w ww .ncaa.org/about/who-w e-are/office-president Ohle, J„ & Herzberger, S. (2013). Division III Presidential Quarterly Update: August 2013.http:// www.ncaa.org/sites/default/files/Presidents_Quarterly_Update_ August-27_2013.pdf Preskill, S., & Brookfield, S.D. (2009). Learning as a Way o f Leading: Lessons From the Struggle fo r Social Justice. San Francisco, CA: Jossey-Bass. Schwarb. A.W. (2014). Blood, sweat and forty years. NCAA Champion, 7(1), 54-62. Segrest, D. (2011). College athletes’ rights: Some athletes lose their single-year scholarships to better players. The Birmingham News, Retrieved from http://w ww .al.com / sports/ index.ssf/201 l/10/college_athletes_rights_som e_a.htm l
- 62. Sergiovanni, T.J. (1992). Moral Leadership: Getting to the Heart o f School Improvement. San Francisco, CA: Jossey-Bass. Shapiro, J.P., & Stefkovich, J.A . (2005). Ethical Leadership and Decision Making in Education: Applying Theoretical Perspectives to Complex Dilemmas. M ahwah, NJ: Lawrence Erlbaum. Shaw, G. (1972). Meat on the Hoof: The Hidden World o f Texas Football. New York, NY: St. M artin’s Press. Staples, A. (2012). Full-cost-of-attendance scholarship debate could break up FBS. Sports Illustrated. Retrieved from http://sportsillustrated.cnn.com /2012/w riters/andy_staples /03/08/presidents-scholarships/ Starratt, R.J. (2004). Ethical Leadership. San Francisco: Jossey- Bass. Staff, T.S.N.C.A. (2008). Avery’s antics sparks NHL to make new rule. TSN. Retrieved from http://www.tsn.ca/nhl/story/?id=234281 United States Departm ent o f Education. (2012). Equity in Athletics Data Analysis Cutting Tool. Retrieved from http://ope.ed.gov/athletics/Index.aspx Wolverton, B. (February 22, 2013). W ho opposed m ultiyear athletics aid? You might be surprised. Chronicle o f Higher Education. Retrieved from http://chronicle.com /blogs/ players/w ho- opposed-m ultiyear-athletics-aid-you-m ight-be-
- 63. surprised/29639 Copyright of Journal of Intercollegiate Sport is the property of Human Kinetics Publishers, Inc. and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. 2 7 9 2 3 sp o _ 2 0 -1 S h e e t N
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- 65. FOURNIER.DOC (DO NOT DELETE) 12/23/2009 3:24:54 PM LABOR RELATIONS IN THE NATIONAL HOCKEY LEAGUE: A MODEL OF TRANSNATIONAL COLLECTIVE BARGAINING? MATHIEU FOURNIER* DOMINIC ROUX** I. INTRODUCTION Professional sports leagues make up a world of their own in which the best athletes, employed by various teams, display their talents before thousands of spectators. The National Hockey League (NHL) is undoubtedly the most popular professional sports league in Canada. The NHL is composed of thirty teams, six in Canada and twenty-four in the United States1 that compete every year for the Stanley Cup, the archetypal dream of every professional hockey player. Since it was created in 1917,2 the NHL has grown into an industry that generates billions of dollars in revenues, which are shared by a handful of players and franchise owners across North America. Given the billions of dollars involved from revenues generated by spectator ticket sales, television rights, and the sale of related
- 66. products, the * Mathieu Fournier is a lawyer in the province of Quebec. ** Dominic Roux is a professor in the Faculty of Law at Université Laval and a researcher at the Inter-University Research Centre on Globalization and Work (CRIMT). Research for this article was supported by a Social Sciences and Humanities Research Council of Canada (SSHRC) grant under the research project entitled “Legal Pluralism and Labour Law” led by professor Michel Coutu at Université de Montréal. We would like to offer our sincere thanks to Daniel Dumais, a lawyer at Heenan Blaikie Aubut, as well as Professor Pierre Verge, from the Faculty of Law at Université Laval, for having so generously agreed to review a preliminary version of our article. The opinions put forward in this article are those of its two authors only and do not in any way represent the views of McCarthy Tétrault LLP. A French version of this text was initially published in Québec under the following reference: Mathieu Fournier et Dominic Roux, Les Relations de Travail dans la Ligue Nationale de Hockey : un Modèle de Négociation Collective Transnationale?, 49 LES CAHIERS DE DROIT 481 (2008). 1. Nat’l Hockey League (NHL), Teams, NHL.COM, http://www.nhl.com/ice/teams/.htm (last visited Jan. 20, 2008). 2. NHL, Hockey for Dummies, NHL.COM, Sept. 20, 2006, http://www.nhl.com/ice/news/htm? id=381958.
- 68. 8 /2 0 1 0 1 0 :2 3 :5 9 27923 spo_20-1 Sheet No. 81 Side B 01/08/2010 10:23:59 C M Y K FOURNIER.DOC (DO NOT DELETE) 12/23/2009 3:24:54 PM 148 M A R Q U E T T E S P O R T S L A W R E V I E W [Vol. 20:1 to deficit. NHL is now considered a major industry in which the players and the owners compete for the largest market share. On the one hand, the owners have a legitimate interest in making sure their teams remain profitable, and if that proves to be impossible, to decide, in some cases, to move their
- 69. franchises to more lucrative markets or to sell to potential investors.3 On the other hand, the players’ desire to secure the best possible annual salary is just as legitimate, especially given that their careers are relatively short.4 To this end, they are constantly seeking new ways to negotiate, to sell themselves more effectively, and to ensure that the contracts they enter into are lucrative.5 Conversely, the owners seek ways to increase their savings when it comes to player salaries, with the goal of increasing their profit margins, or at the very least, avoid going in It was in the context of this ideological and economic confrontation that a labor relations system was gradually and autonomously put in place; a system that is quite novel, since it was set up outside of existing labor laws. This system reached its full maturity in 2005 when the Collective Bargaining Agreement (CBA)6 came into effect following negotiations between the NHL and the National Hockey League Players’ Association (NHLPA). From the mid-1990s, labor relations between the two parties had been rather strained, leading to the first strike in the history of professional hockey in 1992, and to the first lockout in 1994-1995.7 This was followed by a second lockout in 2004-2005, this time leading to the cancellation of the entire
- 70. hockey season, including the playoffs, a first in the history of professional sports in North America.8 This second lockout led to the signing of the CBA. This sector-based collective agreement, which applies across North America, unilaterally stipulates the great majority of working conditions for all NHL players, regardless of the team for which they play. Moreover, it directly regulates the negotiations of individual employment contracts between players and teams by imposing a whole set of standards covering various aspects of the employment relationship.9 3. Melanie Aubut, When Negotiations Fail: An Analysis of Salary Arbitration and Salary Cap Systems, 10 SPORTS LAW. J. 189, 190 (2003). 4. Id. 5. Id. 6. See generally NATIONAL HOCKEY LEAGUE, COLLECTIVE BARGAINING AGREEMENT BETWEEN THE NHL AND THE NHLPA (2005), available at http://www.nhlpa.com/About-Us/CBA/ [hereinafter CBA]. 7. Aubut, supra note 3, at 194. 8. See generally Trois Mois de Lock-Out en 1994-1995, RADIO-CANADA.CA, http://archives. radio-canada.ca/sports/hockey/clips/9066/ (last visited Nov. 1, 2009).
- 71. 9. See generally CBA, supra note 6. 2 7 9 2 3 sp o _ 2 0 -1 S h e e t N o . 8 2 S id e A 0
- 72. 1 /0 8 /2 0 1 0 1 0 :2 3 :5 9 27923 spo_20-1 Sheet No. 82 Side A 01/08/2010 10:23:59 C M Y K FOURNIER.DOC (DO NOT DELETE) 12/23/2009 3:24:54 PM 2009] L A B O R R E L A T I O N S I N T H E N H L 149 Beyond the curious fact that a team—the employer—has the right to trade one of its own players—the employee—to another competing team without this player having the right to oppose this decision,10 the system that has been put in place is certainly of relevance to anyone with an interest
- 73. in the theory of labor law and the fundamental challenges it presently faces. II. QUEBEC LABOR LAW It should be noted that, historically, labor law, in particular that which is applied in Quebec, was built on the basis of two distinct but interrelated sets of rules.11 The first set, which mainly emerged in 1925, is characterized by direct state intervention: that is to say that minimum working conditions began at that time to be imposed for employees tied to their employer by an employment contract. For example, the Act Respecting Labour Standards, which is applied in particular to any employer doing business in Quebec, stipulates the protection that will be provided to employees: minimum wage, maximum working hours, annual leave, notice of termination, etc., making it clear that these are minimum standards and that they are of public order.12 The second set of rules is based on the principle of the “collective autonomy” of the parties in an employment relationship: this refers to the collective system of labor relations established in Quebec in 1944.13 In establishing this system, the legislature was acknowledging a practice which already existed in several workplaces; that is, employees were forming associations, and through their unions, collectively bargaining to establish the details of
- 74. collective agreements, in the case where the employer freely accepted to enter into such a bargaining process, or did so under constraint, following pressure tactics that were effectively exerted by the employees.14 This system is characterized by some specific components, which are now consecrated in the Quebec Labour Code.15 First, employees, by majority vote, can choose a representative—the union—that can be “certified” to become their exclusive representative with regard to all aspects covered by the negotiation, application, and 10. Except in the case where a player’s employment contract includes a non-trade clause. Id. at art. 11.8. 11. FERNAND MORIN ET AL., LE DROIT DE L’EMPLOI AU QUÉBEC 77 (3d ed. 2006); PIERRE VERGE ET AL., LE DROIT DU TRAVAIL PAR SES SOURCES 29 (Editions Thémis 2006). 12. Act Respecting Labour Standards, R.S.Q., ch. N.1-1, § 93 (2009). 13. See Quebec Leads Again, THE SHAWINIGAN STANDARD, Mar. 1, 1944, at 2. 14. See id. 15. See Quebec Labour Code, R.S.Q., ch. C-27 (2009).
- 76. 8 /2 0 1 0 1 0 :2 3 :5 9 27923 spo_20-1 Sheet No. 82 Side B 01/08/2010 10:23:59 C M Y K FOURNIER.DOC (DO NOT DELETE) 12/23/2009 3:24:54 PM 150 M A R Q U E T T E S P O R T S L A W R E V I E W [Vol. 20:1 administration of the collective agreement;16 in such a case, the parties will be under the obligation to negotiate, diligently and in good faith, the conditions of employment of employees forming a group within a given enterprise.17 Once it has been concluded, the collective agreement sets out the conditions of employment that will apply to all present and future employees included in the
- 77. group concerned, as well as to the employer, subject to public order.18 Since the right to strike and to a lockout can only be exercised during the negotiation of the initial collective agreement or when this agreement comes up for renewal, it follows that these pressure tactics remain prohibited during the period of the collective agreement.19 Lastly, arbitration is the exclusive and compulsory means of settling grievances relating to the interpretation and application of the collective agreement; consequently, the courts of law are excluded from this adjudicating role.20 These initial observations reveal the limitations of labor laws, which are essentially applicable at the national, or even in the case of Canada, provincial level. Such territoriality means that, with few exceptions,21 such laws are designed to apply at the local level only.22 The transnational dimension of the employer’s activities and of labor relations with employees is therefore not addressed. For example, the collective system of labor relations is binding at the level of a specified employer’s enterprise. Certification is granted to one association only with respect to a group of employees under one employer or at a firm, branch, or department coming under this employer.23 Multi- employer certification is therefore prohibited. Moreover, only one collective
- 78. agreement governs the conditions of employment for this group of employees.24 In this era of trade globalization and internationalization, in which transnational firms have become major players,25 the labor relations system that has been established in the NHL presents a very interesting model of transnational union representation and collective bargaining. This Article aims to sketch only a broad outline of the main characteristics of this system, which 16. §§ 21, 47.2, 141. 17. § 53. 18. §§ 62, 67. 19. §§ 106, 107. 20. §§ 100, 101. 21. Act Respecting Labour Standards, ch. II. 22. PIERRE VERGE & SOPHIE DUFOUR, CONFIGURATION DIVERSIFIÉE DE L’ENTREPRISE ET DROIT DU TRAVAIL 107 (2003). 23. Quebec Labour Code § 21. 24. § 67. 25. BOB HEPPLE, LABOR LAWS AND GLOBAL TRADE 6 (2005). 2 7 9 2
- 80. 1 0 1 0 :2 3 :5 9 27923 spo_20-1 Sheet No. 83 Side A 01/08/2010 10:23:59 C M Y K FOURNIER.DOC (DO NOT DELETE) 12/23/2009 3:24:54 PM 2009] L A B O R R E L A T I O N S I N T H E N H L 151 has made it possible to go beyond the inherent territoriality of labor law, whether state-based or conventional, and the inherent limitations of its effectiveness. Moreover, this system indisputably has transnational and multi- employer normative import. Lastly, the binding effect and enforceability of its rules are ensured by an arbitration mechanism binding the parties. In addition, in regards to the theory of labor law, the system described here involves many pertinent aspects worth reflecting upon. The system is,
- 81. first and foremost, a private initiative and is strictly contractual in nature. It is essentially based on mutual will, as was typically the case, and will be seen as this Article examines the era that preceded its adoption, starting in 1944, of the laws that introduced collective labor relations systems in Canada. Thus, it fits neatly into a “collective autonomy” approach,26 at least in the sense intended by the first major labor law theorists; that is, first, a group of workers demanding better working conditions from their employer, and then, to legal standards governing labor that are applicable to a given community, such as a factory, plant, firm, or industry developed through “collective bargaining” and set out in a “collective agreement” that then becomes “law” for the parties concerned.27 However, it is also possible to see in this system an example of “legal pluralism:”28 having been constructed, developed, and sanctioned independently from the state, its norms and their effective implementation are situated, definitively and almost exclusively, outside of state- based labor laws.29 That said, this system involves two levels of negotiation. Collective labor relations take place at the sectoral level. The collective negotiation of working conditions is definitely centralized, since it involves representatives of all the
- 82. parties concerned, that is, the team owners and NHL directors, as well as all of the hockey players employed by any of these teams. The CBA, signed in 2005 as a result of this process, standardizes some working conditions for players 26. PIERRE VERGE & GUYLAINE VALLEE, UN DROIT DU TRAVAIL? ESSAI SUR LA SPÉCIFICITÉ DU DROIT DU TRAVAIL 25-30 (1997). 27. Hugo Sinzheimer, La théorie des sources et le droit ouvrier, LE PROBLÈME DES SOURCES EN DROIT POSITIF, 1934, at 73; see generally GEORGES GURVITH, LE TEMPS PRÉSENT ET L’IDÉE DE DROIT SOCIAL (1931); “Pensées allemande et européenne.” Ulrich Zachert, La légitimité des rapports juridiques de travail. À propos de la conception de la légitimité chez Max Weber et Hugo Sinzheimer, LA LÉGITIMITÉ DE L’ÊTAT ET DU DROIT. AUTOUR DE MAX WEBER 306 (Michel Coutu & Guy Rocher eds., 2005). 28. Guylaine Valée, Le droit du travail comme lieu de pluralisme juridique, in CÉLINE SAINT- PIERRE & JEAN-PHILIPPE WARREN, SOCIOLOGIE ET SOCIÉTÉ QUÉBÉCOISE: PRÉSENCES DE GUY ROCHER 241 (Céline Saint-Pierre & Jean-Philippe Warren eds., 2006). 29. Id.; see generally Harry Arthurs, Labor Law Without the State?, 46 U. TORONTO L.J. 1 (1996).
- 84. 8 /2 0 1 0 1 0 :2 3 :5 9 27923 spo_20-1 Sheet No. 83 Side B 01/08/2010 10:23:59 C M Y K FOURNIER.DOC (DO NOT DELETE) 12/23/2009 3:24:54 PM 152 M A R Q U E T T E S P O R T S L A W R E V I E W [Vol. 20:1 across the NHL.30 However, above all, it includes an innovative mechanism for determining the salary that each team can pay its players, that is, a salary cap.31 This point will be elaborated on further in this Article. 32 As regards individual labor relations, these take place at the local level, that is, at the level of the firm. Although, indeed, the CBA
- 85. significantly regulates the negotiation of the employment contract between the player and the team, this negotiation remains decentralized and individual, taking place between these two parties alone. If the parties reach a deadlock and if the object of the negotiation involves determining the salary to be paid to the player, the parties can, under certain circumstances, go to salary arbitration, according to a sophisticated procedure that will be analyzed in detail further on. The same is true for grievances concerning the interpretation or application of the collective agreement or the individual employment contract.33 III. COLLECTIVE LABOR RELATIONS IN THE NATIONAL HOCKEY LEAGUE The labor relations system that the NHL set up involves a centralized multi-employer system for negotiating working conditions across North America.34 This collective bargaining process resulted in the signing of a new collective agreement in 2005, which was intended, on the one hand, to standardize some working conditions across the NHL, and on the other hand, to harmonize the salary paid to players by instituting a salary cap.35 A. Collective Bargaining of Working Conditions: A Centralized
- 86. Multi- Employer Process at the North American Level. The main area of activity of the NHL involves producing and marketing sports competitions engaged in by the NHL’s teams. The preamble to the 2005 CBA states that the NHL is a “joint venture36 organized as a not-for- profit unincorporated association . . . which is recognized as the sole and 30. See generally CBA, supra note 6. 31. Id. at art. 42. 32. The CBA’s innovative mechanism for determining the salary cap will be generally discussed infra Part III. 33. Arbitration for both salary disagreements and grievances will be discussed infra Part IV. 34. The system for negotiating working conditions will be discussed infra Part IV.A. 35. The salary cap will be discussed infra Part IV.B. 36. A joint venture is “a business undertaking by two or more persons engaged in a single defined project. The necessary elements are: (1) an express or implied agreement; (2) a common purpose that the group intends to carry out; (3) shared profits and losses; and (4) each member’s equal voice in controlling the project.” BLACK’S LAW DICTIONARY 856 (8th ed. 2004). 2
- 88. /2 0 1 0 1 0 :2 3 :5 9 27923 spo_20-1 Sheet No. 84 Side A 01/08/2010 10:23:59 C M Y K FOURNIER.DOC (DO NOT DELETE) 12/23/2009 3:24:54 PM 2009] L A B O R R E L A T I O N S I N T H E N H L 153 be relocated.42 exclusive bargaining representative of the present and future Clubs of the NHL . . . .”37 Thus, the NHL is a common legal entity that the team owners created in order to set up a professional hockey league. It is also, according to this definition, the exclusive representative of its present and future teams for the purposes of collective labor negotiations with the NHLPA, and as such, it
- 89. closely resembles an employers’ association as understood in Quebec labor law.38 In this respect, however, it should be pointed out that each individual team remains the real employer of its players and that the ultimate power, when it comes to negotiating, rests in the hands of the teams. Lastly, having its head office in New York City, the NHL is directed and supervised by a board of governors, made up of one member from each team.39 The NHL grants franchises to team owners, bestowing upon them the privilege of joining the other teams that make up the League.40 The board of governors decides to whom a franchise should be granted to and at what price, as well as, when the case arises, whether a franchise can be sold or relocated.41 The NHL also has the power to withdraw a franchise from its owner if he does not respect his contractual obligations, violates NHL rules, or is headed for bankruptcy. In this case, the NHL then decides to whom the franchise can be sold to and where it can The NHLPA represents all NHL players.43 Its headquarters are in Toronto and, in its present form, the NHLPA dates back to June 1967.44 It all began with a resolution by player representatives from the six original teams who elected a Toronto Maple Leafs player, Bob Pulford, as the NHLPA’s
- 90. president, and appointed Alan Eagleson, an influential player agent at the time, as its executive director.41 According to the archives, on Eagleson’s advice, 37. CBA, supra note 6, at pmbl. 38. “[E]mployers’ association: a group organization of employers having as its objects the study and safeguarding of the economic interests of its members, and particularly assistance in the negotiation and application of collective agreements.” Quebec Labour Code § 1(c). 39. National Hockey League, FUNDINGUNIVERSE.COM, http://www.fundinguniverse.com/ company-histories/National-Hockey-League-Company- History.html (last visited Oct. 27, 2009). 40. GIL STEIN, POWER PLAYS: AN INSIDE LOOK AT THE BIG BUSINESS OF THE NATIONAL HOCKEY LEAGUE 37 (1997). 41. Id. 42. Id. 43. NHL Players Ass’n (NHLPA), About the NHLPA, NHLPA.COM, http://www.nhlpa.com/ About-Us (last visited Jan. 20, 2008) [hereinafter NHLPA]. 44. Id. 41. Boston: Ed Johnston; Chicago: Pierre Pilote; Detroit: Norm Ullman; Montreal: Bobby Rousseau and Jean-Claude Tremblay; New York: Rod Gilbert, Harry Howell and Bob Nevin; Toronto: Bob Pulford. Heather Engel, History of NHLPA
- 91. Executive Directors, SUITE101.COM, Aug. 31, 2009, http://national-hockey-league- nhl.suite101.com/article/ 2 7 9 2 3 sp o _ 2 0 -1 S h e e t N o . 8 4 S id e
- 92. B 0 1 /0 8 /2 0 1 0 1 0 :2 3 :5 9 27923 spo_20-1 Sheet No. 84 Side B 01/08/2010 10:23:59 C M Y K FOURNIER.DOC (DO NOT DELETE) 12/23/2009 3:24:54 PM 154 M A R Q U E T T E S P O R T S L A W R E V I E W [Vol. 20:1 Pulford delivered an ultimatum to team owners at a meeting, declaring that if they refused to recognize the new NHLPA, the players would join the
- 93. powerful Teamsters Union and seek certification under Canadian labor laws.45 The owners were obviously against this proposal, but as pointed out by one observer, the “notorious Teamsters Union was beginning to cause some rumblings with the league, [so] Eagleson seemed to be the lesser of two evils.”46 Consequently, the NHLPA was recognized by the team owners and thus gained its present status as, to use the words of the CBA itself, “the sole and exclusive bargaining representative of the present and future Players in the NHL.”47 It is interesting to note that the parties appear to have chosen a United States law, the National Labor Relations Act (NLRA),48 to govern their labor relations.49 The United States Congress adopted this law in accordance with its authority to govern trade between states, as set out in the United States Constitution.50 A National Labor Relations Board decision51 established that the NLRA has jurisdiction over and can be applied to professional sports leagues in the United States, including the NHL.52 By recognizing the principle of freedom of association,53 the NLRA not only allows players to form their own association and negotiate their working conditions collectively, but also implicitly, to exercise the right to strike, since it
- 94. specifies that they can engage in other concerted activities for the purpose of collective bargaining.54 Moreover, the extraterritorial scope of this law leaves no doubt as to its applicability in Canada. cfm/history_of_nhlpa_executive_directors. 45. NHLPA, supra note 43. 46. James Baillie, An Investigation into the Collective Bargaining Relationship Between the NHL and the NHLPA, 1994-2005 17 (August 2005) (unpublished Master’s thesis, Queen’s University) (on file with the Industrial Relations Center, Queen’s University), available at http://irc.queensu.ca/articles/an-investigation-into-the- collective-bargaining-relationship-between-the- nhl-and-the-nhlpa-1994-2005. 47. CBA, supra note 6, at pmbl., art. 2.1. Article 2.1 restates similar language found in the Preamble. See generally id. at art. 2.1. 48. National Labor Relations Act, 29 U.S.C. §§ 151-169 (2006). 49. PAUL C. WEILER & GARY R. ROBERTS, SPORTS AND THE LAW 240 (2d ed. 1998). 50. Id. at 250. 51. See generally American League of Prof’l Baseball Clubs, 180 N.L.R.B. 190 (1969). 52. Aubut, supra note 3, at 190. 53. The NLRA also specifies that “[e]mployees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own
- 95. choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection . . . .” 29 U.S.C. § 157. 54. § 158. 2 7 9 2 3 sp o _ 2 0 -1 S h e e t N o . 8 5 S id
- 96. e A 0 1 /0 8 /2 0 1 0 1 0 :2 3 :5 9 27923 spo_20-1 Sheet No. 85 Side A 01/08/2010 10:23:59 C M Y K FOURNIER.DOC (DO NOT DELETE) 12/23/2009 3:24:54 PM 2009] L A B O R R E L A T I O N S I N T H E N H L 155 With respect to extraterritoriality, a situation arose that is worth looking at and analyzing here: it occurred in October 2005, during the
- 97. lockout that was ordered by the NHL. At the time it did not appear that the labor dispute, which had already led to the cancellation of the 2004-2005 hockey season, was going to be resolved quickly. The NHL was therefore considering the possibility of using replacement players for the 2005-2006 season. Under the NLRA, it would have been possible, in accordance with a complex legislative mechanism, to use replacement workers, or “scabs” in the case of a deadlock in negotiations.55 The NHL may, in fact, only have wanted to put pressure on the players by reminding them that it could resort to such action. In any case, the NHLPA reacted to this threat by turning to Quebec law, which has included anti-scab provisions since 1977,56 and applying to be certified to represent all players in the Montreal Canadiens hockey club.57 Lawyers for the Montreal Canadiens and the NHL argued that the parties concerned—the NHL and the NHLPA—had been subject to the NLRA for over forty years, and that the NLRA had extraterritorial scope, whereas the Quebec Labor Code did not.58 This led to the application of the estoppel rule and, subsequently, of the doctrine of forum non conveniens pursuant to article 3135 of the Civil Code of Quebec.59 Consequently, the Commission des Relations de Travail (CRT) refused to take jurisdiction over this matter, referring it
- 98. instead to the National Labor Relations Board in the United States, which it deemed better suited to rule on this dispute.60 Moreover, it concluded that the certification unit requested by the NHLPA was not appropriate, as it should have included all NHL players rather than just those of the Montreal Canadiens hockey club.61 In the end, the NHLPA, which had wanted to use this means to respond to pressure from the NHL, dropped its request for certification. During the same labor dispute, the NHLPA applied for certification to represent all Vancouver Canucks players under the law relating to collective labor relations in British Columbia.62 However, on July 31, 2007, the British Columbia Labour Relations Board (the “Board”), in an administrative review, reversed the June 2006 decision by a labor commissioner who had concluded 55. § 158. 56. Quebec Labour Code § 109.1. 57. See generally Association des Joueurs de la Ligue Nationale de Hockey v. Club de Hockey Canadien Inc., 2005 QCCRT 354. 58. Id. 59. Civil Code of Québec, S.Q., ch. 64 (1991). 60. Association des joueurs de la Ligue nationale de hockey, 2005 QCCRT, at 354. 61. British Columbia Labour Relations Code, R.S.B.C., ch. 244,
- 99. § 22(1) (2009). 62. Orca Bay Hockey Ltd. P’ship and Nat’l Hockey League, BCLRB, no. B172/2007, ¶ 6 (2007). 2 7 9 2 3 sp o _ 2 0 -1 S h e e t N o . 8 5 S id e
- 100. B 0 1 /0 8 /2 0 1 0 1 0 :2 3 :5 9 27923 spo_20-1 Sheet No. 85 Side B 01/08/2010 10:23:59 C M Y K FOURNIER.DOC (DO NOT DELETE) 12/23/2009 3:24:54 PM 156 M A R Q U E T T E S P O R T S L A W R E V I E W [Vol. 20:1 that the bargaining unit in question was “appropriate” in accordance with Section 22(1) of British Columbia’s Labour Relations Code.63 The history of
- 101. labor relations between the parties, and the particular nature of the professional sports industry and of the collective representation and bargaining system that had been set up in the NHL, were listed as the determining factors in refusing the requested certification.64 Could this decision, which in a way, grants priority to “collective autonomy” at the North American level over collective labor relations at the local level, be easily transposed into Quebec law? This could come up, for example, if an application for certification on the part of players from the Montreal Canadiens was once again brought before the CRT. A brief analysis of all the arguments put forward by the parties and laid out in the two Board decisions leads us to conclude that a ruling in favor of certification of these players under the Quebec Labour Code does not appear likely, even though such a possibility cannot be completely ruled out. It is true that the players belonging to the Canadiens, the employer under the Quebec Labour Code, may form a “separate group,” which would allow them to be granted certification, provided, of course, that the association applying for certification was able to establish that it was representative of the majority of employees.65 The main question nevertheless remains whether this certification unit would
- 102. be deemed to be “appropriate,” that is, whether “this unit, in accordance with the particular circumstances of time and place, [will] be considered to have the attributes that would make collective labour relations truly workable.”66 Certainly, it must be recognized that the existence of the CBA, which has the value of a signed contract between private parties, does not in itself constitute a structural obstacle to the players being granted certification,67 nor, if the case should arise, to a collective agreement being negotiated between a team and the association representing the players working for this team. These steps are fundamental components of the legal collective labor relations system, essential components that are undeniably of public order. Moreover, the existence of an individual contract, or several individual contracts, does not in itself undermine the right to certification requested by an association of employees who would otherwise be legally entitled to it.68 However, the difficulties that could potentially stem from the implementation of collective 63. Id. ¶ 76. 64. Id. ¶¶ 58-74. 65. Quebec Labour Code § 21. 66. MORIN ET AL., supra note 11, at 927. This is the authors’ translation from French to English. 67. Quebec Labour Code § 21.
- 103. 68. § 21. 2 7 9 2 3 sp o _ 2 0 -1 S h e e t N o . 8 6 S id e A 0
- 104. 1 /0 8 /2 0 1 0 1 0 :2 3 :5 9 27923 spo_20-1 Sheet No. 86 Side A 01/08/2010 10:23:59 C M Y K FOURNIER.DOC (DO NOT DELETE) 12/23/2009 3:24:54 PM 2009] L A B O R R E L A T I O N S I N T H E N H L 157 labor relations within an NHL team, in accordance with the Quebec Labour Code, in particular the fact that the CBA standardizes working conditions and harmonizes salaries for all NHL players, were clearly pointed out in the first Board decision, and these potential problems cannot be
- 105. ignored.69 The decision rendered by the Board in an administrative review is unequivocal in this regard. Ultimately, the Board decided to reject the application for certification concerning the Vancouver Canucks players, citing the following reasons: Orca Bay is the employer, but Orca Bay itself is an integral part of the NHL, just as the BC-NHLPA is an integral part of the NHLPA, and the Canucks players, as a team, are an integral part of the hockey league within which they play. All three elements – the employer Orca Bay, the union BC- NHLPA, and the employee Canuck players – are well served by their current league-wide bargaining structure. This is a crucial factor in our finding that the applied for bargaining unit is inappropriate. If this circumstance were to change, such that either or both parties were no longer well served by the existing bargaining structure, it may be that we would have to revisit our decision. However, in light of the present circumstances, we find that the bargaining unit applied for is inappropriate.70 Consequently, if the CRT was one day asked to decide on the appropriateness of such a certification unit, it seems doubtful that the latter would meet the standard criteria related to coherence in the group of
- 106. employees, the history of labor relations between the parties, the organizational structure of the enterprise operated by the employer, its geographical environment, and the goal of industrial peace, especially given that the only requests that have actually been made for such certification were made during the most contentious moments of a stormy collective labor dispute between the NHL and the NHLPA. The contractual system, which has been put in place and involves both a history of collective bargaining and a collective sector-based employment contract, is functioning effectively. Indeed, there is no reason to believe that its legitimacy or legality will be challenged in the short term by the parties concerned. To sum up, the fact that the employers’ representative voluntarily recognized the NHLPA as the players’ representative and that a private system of transnational and multi-employer collective bargaining was put in place, merits some consideration. This process took place outside of the legislative framework provided by American or Canadian labor laws, under which, as has 69. Orca Bay Hockey Ltd. P’ship and Nat’l Hockey League and British Columbia Chapter of the Nat’l Hockey League Players’ Ass’n, BCLRB, No. B138/2006, ¶ 163 (2006).
- 107. 70. Orca Bay Hockey Ltd. P’ship and Nat’l Hockey League, BCLRB No. B172/2007, ¶ 77. 2 7 9 2 3 sp o _ 2 0 -1 S h e e t N o . 8 6 S id e B
- 108. 0 1 /0 8 /2 0 1 0 1 0 :2 3 :5 9 27923 spo_20-1 Sheet No. 86 Side B 01/08/2010 10:23:59 C M Y K FOURNIER.DOC (DO NOT DELETE) 12/23/2009 3:24:54 PM 158 M A R Q U E T T E S P O R T S L A W R E V I E W [Vol. 20:1 been seen, the only authorized level of collective representation and collective bargaining is that of the firm. The parties concerned thus created a system that has made it possible to negotiate working conditions
- 109. collectively at the sectoral level, for all the players and teams across the NHL. B. The CBA: Standardizes Working Conditions and Harmonizes Players’ Salaries Across the NHL The CBA came into force retroactively as of September 16, 2004, for a duration of six years.71 However, the NHLPA has the option of reopening negotiations after four years—that is, at the end of the 2008- 2009 hockey season—or of extending it for another year upon expiry, that is, for the 2011- 2012 season.72 This highly complex document determines the respective rights and obligations of all the parties concerned, but also, mainly, the set of working conditions that apply to all NHL players and teams.73 In short, the content of the CBA contractually imposes a “minimum public order.”74 Furthermore, it binds the parties, that is, the teams and their players, to respect its provisions, including those of the individual employment contract,75 called the Standard Player Contract (SPC).76 The following subjects, among others, are covered in the SPC, in the same order as in the CBA: drafting amateur players,77 the specific parameters of the first contract,78 the process leading to free agent status,79 signing the SPC,80 salary arbitration,81 the rules concerning “waivers”82 and loans
- 110. of players to minor league teams,83 training camp and related expenses engaged in for 71. CBA, supra note 6, at art. 3.1 (a). 72. Id. at art. 3.1 (b). 73. See generally id. 74. Act Respecting Labour Standards, ch. N.1-1, § 93. 75. CBA, supra note 6, at art. 2.1, Exhibit 1. 76. The SPC constitutes Exhibit 1 of the CBA. See also id. at art. 1. “‘Standard Player Contract’ or ‘SPC’ means the standard form contract attached hereto as Exhibit 1 which will be the sole form of employment contract used for all Player signings after the execution of this Agreement.” Id. 77. Id. at art. 8. 78. Id. at art. 9. 79. Id. at art. 10. 80. Id. at art. 11. 81. Id. at art. 12. 82. “‘Waivers’ means the process by which the rights to a Player are offered to all other Clubs pursuant to the procedure set forth in Article 13 of this Agreement and shall include Regular, Re- Entry and Unconditional Waivers.” Id. 83. Id. at arts. 13-14. 2 7 9
- 112. 0 1 0 1 0 :2 3 :5 9 27923 spo_20-1 Sheet No. 87 Side A 01/08/2010 10:23:59 C M Y K FOURNIER.DOC (DO NOT DELETE) 12/23/2009 3:24:54 PM 2009] L A B O R R E L A T I O N S I N T H E N H L 159 players,84 the grievance and arbitration process,85 per diem allowances for players,86 the pension plan,87 group insurance coverage,88 international competitions,89 sponsorships and licensing,90 an anti-doping program,91 and the establishment of a “salary cap,”92 which is one of the distinctive features of the labor relations system set up in 2005 by the CBA that will be examined in more detail later on in this Article. The NHL and the NHLPA in effect agreed to limit the expenditures
- 113. devoted to players’ salaries, in proportion to the NHL’s overall revenues. On the one hand, for each season, the teams’ payroll expenditures cannot exceed a specified maximum amount, which is determined annually. This is what in sports jargon, is referred to as the salary cap. On the other hand, again on an annual basis, the CBA establishes a “maximum player salary.”93 The teams must remain within the limits of this system when distributing their total payroll. Consequently, salary negotiations between the player and the team are strictly regulated by the mechanism set out in the CBA. There are three factors that must be considered before the annual salary cap can be established: Hockey Related Revenues (HRR),94 the Applicable Percentage,95 and Benefits.96 Once these factors have been worked out, it is possible to calculate the salary cap,97 as well as the maximum salary that can be paid to any single player.98 1. Calculating the salary cap. The salary cap, or Team Payroll Range System,99 to use the exact term 84. Id. at art. 15. 85. Id. at art. 17. 86. Id. at art. 19. 87. Id. at art. 21. 88. Id. at art. 23.
- 114. 89. Id. at art. 24. 90. Id. at art. 25. 91. Id. at art. 47. 92. Id. at art. 50. 93. See id. at art. 50.6. 94. Id. at art. 50.1(a). 95. Id. at art. 50.4(b). 96. Id. at art. 50.3. 97. Calculating the salary cap will be further discussed infra Part IV.B.1. 98. Calculation of the maximum salary that a team can pay to any single player will be futher discussed in Part IV.B.2. 99. The expression “salary cap” does not appear anywhere in the CBA, which prefers the term “Team Payroll Range System.” CBA, supra note 6, at art. 50. Nevertheless, there is no doubt that a 2 7 9 2 3 sp o _ 2 0 -1
- 116. 9 27923 spo_20-1 Sheet No. 87 Side B 01/08/2010 10:23:59 C M Y K FOURNIER.DOC (DO NOT DELETE) 12/23/2009 3:24:54 PM 160 M A R Q U E T T E S P O R T S L A W R E V I E W [Vol. 20:1 used in the CBA, establishes a direct relationship between the total payroll that is available for each team and the NHL’s HRR, which is the first factor taken into consideration. Thus, since the 2005-2006 season, the total amount in salaries paid annually to players has varied in proportion to a rise or fall in HRR, depending on the year. A new calculation is made each year,100 based on a formula set out in the CBA.101 In other words, HRR is used as a starting point in the NHL’s new system for calculating salaries. The term HRR must be broadly interpreted and includes, among other things, “the operating revenues . . . from all sources, whether known or unknown, whether now in existence or created in the future . . . of each Club or the League . . . derived or earned from, relating to or arising directly or indirectly out of the playing of NHL hockey games or NHL-related events . . . .”102 In short, all NHL
- 117. revenues are truly included in the HRR, and can be redistributed to the players in the form of salaries, as explained below. The second factor considered when calculating the salary cap is the Applicable Percentage.103 Each season, the players receive a percentage of the NHL’s total HRR. As was mentioned above, this percentage increases or decreases, in relation to a rise or fall in the HRR, in accordance with the following distribution grid:104 Applicable Percentage HRR 54% Under $2.2 billion 55% $2.2 to $2.4 billion 56% $2.4 to $2.7 billion 57% Over $2.7 billion The third factor considered relates to the Benefits that players receive.105 This includes all sums paid out in pensions; government programs, such as salary cap does exist in the NHL. Id. at art. 50.1. 100. Id. 101. Id. at art. 50.5(b)(i). 102. Id. at art. 50.1(a). 103. See id. at art. 50.4(b). 104. Id. at art. 50.4(b)(i). It should be noted that the Applicable Percentage must be readjusted in accordance with the HRR if the latter are situated between two levels. Id. at art. 50.4(b)(ii). For example, if the HRR came to $2.3 billion (half-way between 2.2
- 118. billion and 2.4 billion), a rate of 55.5% would be applied (half-way between 55.0% and 56.0%). 105. Id. at art. 50.3(a). 2 7 9 2 3 sp o _ 2 0 -1 S h e e t N o . 8 8 S id e
- 119. A 0 1 /0 8 /2 0 1 0 1 0 :2 3 :5 9 27923 spo_20-1 Sheet No. 88 Side A 01/08/2010 10:23:59 C M Y K FOURNIER.DOC (DO NOT DELETE) 12/23/2009 3:24:54 PM 2009] L A B O R R E L A T I O N S I N T H E N H L 161 social insurance premiums paid by the team, as the employer; compensation under group insurance programs including life, medical, and dental coverage;
- 120. playoff pool amounts paid by the League; and individual performance bonuses paid by the League, in accordance with Exhibit 5-B Individual “B” Bonuses, of the CBA.106 It includes, in fact, all of the employee benefits actually received by the players. From this total amount, a figure of $6.5 million was established for each of the 2005-2006 and 2007-2008 seasons.107 The figure established for each of the subsequent years covered by the CBA is $6.75 million.108 Once this last factor has been determined, it becomes possible to calculate the annual salary cap that will be imposed on the teams. It should be pointed out that this salary cap (the “Upper Limit”) is accompanied by a salary floor (the “Lower Limit”).109 Calculating the Upper and Lower Limits of the total annual salaries that can be paid out by the NHL teams thus involves three steps, and the final amounts are determined on the basis of the HRR, the Applicable Percentage and Benefits:110 Midpoint = [(HRR ! Applicable Percentage) – (Benefits)] ÷ 30 (the number of teams in the NHL); Adjusted Midpoint = Midpoint ! 1.05 (adjusted by 5% every year to account for inflation);
- 121. Lower Limit = Adjusted Midpoint – $8 million; Upper Limit = Adjusted Midpoint + $8 million. This means that, if, for example, the HRR came to $2.3 billion and the Benefits were evaluated at $66 million, then, for the following season, the Lower Limit would be set at $34.4 million, while the Upper Limit would be set at $50.4 million, as illustrated below: Midpoint = [($2.3 billion ! 55.5%)-($66 million)] ÷ 30 = $40.35 million Adjusted Midpoint = $40.35 million ! 1.05 = $42.4 million Lower Limit = $34.4 million and Upper Limit = $50.4 million Once the Lower Limit and Upper Limit have been worked out for a given season, it then becomes possible to determine the maximum salary that can be paid to any player for that season. 106. Id. at art. 50.3(a)(i)(A)(1)-(5). 107. Id. at art. 50.3(a)(i)(B). 108. Id. at art. 50.3(a)(i)(B). 109. Id. at art. 50.5(a). 110. Id. at art. 50.5(b)(i). 2 7 9 2 3 sp
- 123. 1 0 :2 3 :5 9 27923 spo_20-1 Sheet No. 88 Side B 01/08/2010 10:23:59 C M Y K FOURNIER.DOC (DO NOT DELETE) 12/23/2009 3:24:54 PM 162 M A R Q U E T T E S P O R T S L A W R E V I E W [Vol. 20:1 2. Calculating the Salary Cap or Upper Limit. The maximum annual salary is a new feature, introduced in the 2005 CBA.111 Accordingly, the annual salary of any player, including individual performance bonuses, can never exceed twenty percent of the Upper Limit.112 Thus, for the example shown above, no player could earn more than $10.08 million for the season in question. In the case of a contract lasting longer than one season, the maximum salary allowed for the subsequent seasons would correspond to the maximum salary established when the SPC was signed.113
- 124. That said, in order to avoid confusion and, especially, a wave of salary increases across the NHL, it is essential that the SPC, concluded between a team and a player, specify the annual salary in terms of an exact dollar figure.114 Therefore, it is prohibited to state that a player will receive a certain percentage of the salary cap.115 What would happen if total HRR went down, leading to a drop in the salary cap, and if, the following season, a player therefore earned more than twenty percent of the salary cap? It should be pointed out here that the contracts are signed on the basis of a predetermined rather than an indefinite term. The team must respect the contract, and thus, the player would be entitled to keep his entire salary even if it went over the twenty percent threshold set by the Upper Limit.116 On the other hand, this amount, paid out in salary, would be deducted from the team’s total payroll.117 This rule encourages teams to show restraint. They must, in effect, avoid granting the maximum salary allowed a player so as not to unjustifiably lower their room for maneuver in the years to come, especially in case overall NHL revenues were to drop. In conclusion, the system of union representation and collective bargaining of working conditions that has gradually been put in place in the
- 125. NHL is characterized by its transnationalism and multilateralism and presents a model of private regulation of working conditions. The collective bargaining of working conditions is centralized at the sectoral level, involving the owners of the thirty teams, the NHL directors, and representatives of all the hockey players in the League. The CBA, signed in 2005 as the result of 111. E.g., id. at art. 50. 112. Id. at art. 50.6(a). It should be noted that the CBA also sets out the minimum annual salary that can be paid to a player: $475,000 for the 2007-2008 and 2008-2009 seasons; $500,000 for the 2009-2010 and 2010-2011 seasons; and $525,000 for the 2011- 2012 season. Id. at art. 11.12. 113. Id. at art. 50.6(a). 114. Id. at art. 50.6(b). 115. Id. 116. Id. at art. 50.6(a). 117. Id. 2 7 9 2 3 sp o
- 127. 0 :2 3 :5 9 27923 spo_20-1 Sheet No. 89 Side A 01/08/2010 10:23:59 C M Y K FOURNIER.DOC (DO NOT DELETE) 12/23/2009 3:24:54 PM 2009] L A B O R R E L A T I O N S I N T H E N H L 163 this bargaining process, aims to standardize a whole set of working conditions across the NHL and to limit, through a salary cap or Upper Limit mechanism, the salary that can be paid to the players. Thus, it establishes a compulsory framework for decentralized bargaining relating to the individual employment contract between the player and his team. IV. INDIVIDUAL LABOR RELATIONS IN THE NHL Individual labor relations in the NHL take place at the level of “the firm.” The negotiation of the employment contract between the player and the team, which is intended mainly to determine the salary and duration of the contract, must be conducted in accordance with the rules specified in the
- 128. CBA.118 In the event of a dispute over salary determination, an arbitrator can be called upon to settle the matter; the same applies, more generally, to disputes over the interpretation or application of the CBA, or over the individual employment contract concluded outside this agreement.119 A. Negotiating the Employment Contract Between a Player and a Team Apart from being subject to the CBA as a group, the players are also individually bound to their respective teams—the real employer at the legal level—by an employment contract called the SPC. Exhibit 1 of the CBA contains the eleven-page SPC, and Article 11 of the CBA stipulates the standards governing such contracts.120 In particular, the aspects that are negotiated individually between a team and a player are as follows: the annual salary, set in accordance with the rules explained above, and in some cases, bonuses and “non-trade” clauses.121 The duration of the contract is also negotiated on an individual basis, except when this involves a first contract signed by the player in the NHL.122 All other aspects of the contract are already covered in the SPC.123 Thus, by accepting the terms of the SPC, the player “agrees to give his services and to play hockey in all NHL Games, All
- 129. 118. The rules regarding negotiation of the player contract will be further discussed infra Part IV.B. 119. CBA, supra note 6, at arts. 12, 17. Arbitration will be further discussed infra Part IV.C. 120. Id. at Exhibit 1. 121. CBA, supra note 6, at arts. 11.7, 50.2(b) (discussing bonuses). Pursuant to a nontrade or nonmove clause, the team undertakes to not trade the player to another team for the duration of the SPC. Id. at art. 11.8. 122. In such a case, the duration of the contract varies based on the player’s age at the time his SPC was signed. Id. at art. 9.1. For example, the first contract signed by a player aged 18 to 21 is for the duration of three seasons. 123. Id. at Exhibit 1. 2 7 9 2 3 sp o _ 2
- 131. 3 :5 9 27923 spo_20-1 Sheet No. 89 Side B 01/08/2010 10:23:59 C M Y K FOURNIER.DOC (DO NOT DELETE) 12/23/2009 3:24:54 PM 164 M A R Q U E T T E S P O R T S L A W R E V I E W [Vol. 20:1 Star Games, International Hockey Games, and Exhibition Games to the best of his ability, under the direction and control of the Club in accordance with the provisions hereof.”124 The obligations imposed by the SPC on a player are, among others, to report to his team’s training camp, at the time and place specified by the team, in good physical condition;125 “to keep himself in good physical condition at all times during the season;”126 to play hockey only for the team with which he signed his SPC;127 to cooperate with his team and participate in all reasonable promotional activities to which he is assigned by the team, as it deems appropriate;128 “to conduct himself on and off the rink according to the highest standards of honesty, morality, fair play, and
- 132. sportsmanship, and to refrain from conduct detrimental to the best interest of the Club, the League, or professional hockey generally;”129 and to report for practice at such time and place as the team may designate.130 Lastly, the SPC contains provisions related to the fines and suspensions that the team may impose on a player who violates the club’s internal rules,131 as well as provisions relating to salary and medical expenses related to an injury.132 Nevertheless, the principal issue of the SPC negotiation is still unquestionably that of salary. Thus, the CBA set up, for certain categories of players, a private mechanism for settling disputes—salary arbitration.133 B. Private Arbitration as Compulsory Means of Settling Disputes Between a Player and a Team The absolute jurisdiction of an arbitrator appointed under the CBA varies according to whether the subject of the dispute involves the player’s salary134 or the interpretation or application of the CBA or the SPC concluded between the player and his team.135 124. Id. at Exhibit 1, art. 2. 125. Id. at art. 2(a). 126. Id. at art. 2(b). 127. Id. at art. 2(c). 128. Id. at art. 2(d).
- 133. 129. Id. at art. 2(e). 130. Id. at art. 3. 131. Id. at art. 4. 132. Id. at art. 5. 133. E.g., id. at art. 12. 134. Salary arbitration will be further discussed infra Part V.B.1. 135. Grievance arbitration will be further discussed infra Part V.B.2. 2 7 9 2 3 sp o _ 2 0 -1 S h e e t N o . 9
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- 135. 1. Disputes over salary negotiations. In sports law, salary arbitration is a tool that is made available to the parties in order to settle their disputes over the negotiation of a contract between a player and a team. The hearing is held before an independent arbitrator, with each party generally being represented by their lawyers, plus the agent for the player, and the general manager or his assistant for the team.136 The arbitrator decides on issues related to the player’s salary only.137 There are just two professional leagues in North America that use this system—the NHL and Major League Baseball (MLB).138 The National Basketball Association and the National Football League have not adopted this system in their respective collective agreements.139 The NHL was the first professional league to introduce salary arbitration, as early as 1970, followed by the MLB in 1973.140 The introduction of this mechanism stemmed from the dissatisfaction generated by the option clause, a rule that was inserted in the NHL’s SPC in 1958.141 This clause stipulated that when a player’s contract expired, the team could unilaterally extend it for the same duration as that of the previous contract, at the level of salary determined by the team.142 Since this clause was automatically
- 136. integrated into the player’s new contract, it was thus possible for the team to continually renew this contract without any real negotiations being conducted between the parties.143 Moreover, at that time, salary disputes were submitted to the NHL president for resolution.144 The latter rendered an irrevocable decision, which determined the salary to be paid to the player.145 However, there was a real conflict of interest since the president of the NHL was appointed, it should be noted, by the owners of the various teams.146 Finally, following a report published in 1969 that criticized the perverse effects of the system on the competitiveness of NHL teams among themselves, the players were able to 136. WEILER & ROBERTS, supra note 49, at 336. 137. Aubut, supra note 3, at 191. 138. However, there are significant differences between the two systems, which will not be addressed in this study. See generally id. 139. See id. at 211-22. 140. WEILER & ROBERTS, supra note 49, at 336. 141. Joseph Weiler, Legal Analysis of the NHL Player’s Contract, 3 MARQ. SPORTS L.J. 59, 70 (1992); Aubut, supra note 3, at 193. 142. Aubut, supra note 3, at 193. 143. Id. 144. Id. 145. Id.
- 137. 146. STEIN, supra note 40, at 37. 2 7 9 2 3 sp o _ 2 0 -1 S h e e t N o . 9 0 S id e B 0
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- 139. a. Eligibility for arbitration. Salary arbitration can be requested by the player148 and, henceforth—a novelty introduced in the CBA—by the team.149 To be eligible, the player must first be a member of Group 2,150 that is, a “restricted free agent.”151 He must then meet the conditions listed explicitly in the CBA:152 Age at signing of first SPC Minimum number of years of professional experience required to be eligible 18-21 3 years 22-23 2 years 24 or older 1 year To be granted a full year of professional experience, a player aged eighteen or nineteen must have played at least ten games in the NHL during the same season, whereas a player aged twenty must have played ten or more games at the professional level under an SPC.153 Lastly, the player must have received a qualifying offer from his team beforehand.154 This offer, whose 147. Weiler, supra note 141, at 70; Aubut, supra note 3, at 193. 148. CBA, supra note 6, at art. 12.1. 149. Id. at art. 12.3. 150. Id. at art. 12.1(b). 151. If he is not an unrestricted free agent according to Article 10.1, or a Group 1 or 4 player, the
- 140. player becomes a Restricted Free Agent (Group 2 player), when his SPC expires. Id. at art. 10.2. The other teams will then be free to offer him a new contract, but the team with whom he played previously will have the opportunity to equalize the offer. Id. at art. 10.3. Otherwise, it will nevertheless receive a draft choice compensation. Id. at art. 10.4. 152. Id. at art. 12.1(a). 153. “‘Professional Games’ includes the following: any NHL Games played, all minor league regular season and playoff games and any other professional games played, including but not limited to, games played in any European league or any other league outside North America, by a Player pursuant to his SPC.” Id. at art. 1. If a player is drafted at age seventeen, signs his first SPC at eighteen, and plays in the NHL at nineteen, he will need a minimum of four years professional experience before becoming eligible for salary arbitration when his SPC expires. Id. at art. 12.1(a). 154. Id. at art. 10.2 (a)(ii). 2 7 9 2 3 sp o
- 142. 0 :2 3 :5 9 27923 spo_20-1 Sheet No. 91 Side A 01/08/2010 10:23:59 C M Y K FOURNIER.DOC (DO NOT DELETE) 12/23/2009 3:24:54 PM 2009] L A B O R R E L A T I O N S I N T H E N H L 167 term is limited to one season only, allows the team to maintain some rights over the player.155 If the team fails to make such an offer, the player becomes an unrestricted free agent.156 The qualifying offer must be made by June 25 of each year, or the first Monday following the draft of the player’s last year under the SPC; it must also comply with the following:157 Salary during last year of SPC Qualifying offer Under $660,000 110% From $660,000 to US$1,000,000 105%158 Over $1,000,000 100% After having received a qualifying offer, the player who meets all the previously mentioned conditions can request salary arbitration, but only if he
- 143. thinks that he can obtain a more advantageous annual salary.159 Otherwise, he can simply agree to play the following season under the terms of the qualifying offer or refuse the offer in question and not request arbitration.160 In the jargon of the trade, he will then be characterized as a “hold out” or a “striking player.” In this case, the team can file a request for arbitration before July 6 if it deems it appropriate to do so, or let the player continue to strike.161 The striking player has until December 1162 to come to an agreement with his team; otherwise he will not be able to play during the season in question. It must be mentioned that the team can, at any time, offer more than what is specified in the qualifying offer, which may lead to a short- or long-term agreement if the player accepts it.163 As was explained above, the team can also request salary arbitration.164 However, it can only do so in two very specific cases.165 First, the team can 155. Id. at arts. 10.3, 10.4. 156. For a player’s status to change to Unrestricted Free Agent, the team must not have already requested arbitration. Id. at art. 10.2(a)(iv). 157. Id. at art. 10.2(b)(ii)(A)-(C). 158. Id. However, the amount must not exceed $1,000,000. Id. at art. 10.2(a)(ii)(B). 159. Id. at art. 10.2(a).
- 144. 160. Id. 161. Id. at art. 12.4(b). 162. Id. at art. 11.4. This is the “Signing Deadline for Group 2 Players.” Id. 163. Id. at art. 10.3 164. Id. at art. 12.3. 165. Id. at art. 12.3(a)-(b). 2 7 9 2 3 sp o _ 2 0 -1 S h e e t N o . 9 1 S
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- 146. request salary arbitration when the player has rejected the qualifying offer and has not requested arbitration himself.166 In this case, the team must offer him a salary equal to or higher than the last salary level agreed on under the previously concluded SPC.167 Second, with regard to a player who earned a salary of $1.5 million or more during the last year of his SPC, the team can refer the matter directly to an arbitrator instead of making a qualifying offer.168 Thus, it can ask the arbitrator to grant a decrease in salary equivalent to a maximum of fifteen percent of the player’s most recent annual salary.169 It should be noted that, in all cases, the player is eligible for only one session of team-elected salary arbitration during his career.170 Similarly, a team cannot request more than two sessions of salary arbitration per year.171 b. The arbitration process and the powers of the arbitrator. To be eligible for salary arbitration, the player must file his request by July 5 at 5:00 p.m. (EST).172 The team, on the other hand, must take action before June 15 or forty-eight hours after the conclusion of the Stanley Cup Finals, whichever is later, again by 5:00 p.m. (in the case of arbitration involving a player who earned a salary of $1.5 million or more during the last year of his SPC).173 All arbitration cases must be heard between July 20
- 147. and August 4 of each year.174 The NHL and the NHLPA jointly choose eight salary arbitrators, all members of the National Academy of Arbitrators in the United States.175 The latter are appointed to hear the cases filed.176 The hearing takes place before a single arbitrator chosen by the parties according to a pre- established process.177 At least forty-eight hours before the hearing, the parties must send both the arbitrator and the opposing party a brief that is, at most, forty pages long (excluding annexes) detailing the positions, arguments, 166. Id. at art. 12.3(b)(i). 167. Id. at art. 12.3(b)(ii). 168. Id. at art. 12.3(a)(i). 169. Id. at art. 12.3(a)(ii). 170. Id. at art. 12.3(c). 171. Id. at art. 12.3(d). 172. Id. at art. 12.2. 173. Id. at art. 12.4(a). With regard to a player who rejected the qualifying offer and has not requested arbitration himself, the team must act by 5:00 p.m., July 6. Id. at art. 12.4(b). 174. Id. at Exhibit 15. 175. Id. at art. 12.6. 176. Id. 177. Id. at art. 12.7(c). 2
- 149. /2 0 1 0 1 0 :2 3 :5 9 27923 spo_20-1 Sheet No. 92 Side A 01/08/2010 10:23:59 C M Y K FOURNIER.DOC (DO NOT DELETE) 12/23/2009 3:24:54 PM 2009] L A B O R R E L A T I O N S I N T H E N H L 169 and statistics put forward to back up their claim.178 During the hearing, each party has a specified period of time in which to argue their case directly (the “Direct Case”) and then refute the allegations of the opposing party or present their rebuttal case.179 Each party has a maximum of ninety minutes to present their Direct Case and respond to the arguments of the other party.180 The player, the team, the
- 150. NHL, and the NHLPA are party to the procedure and can be represented by their respective agents or lawyers.181 At the hearing, the parties can produce any documents and declarations under oath to back up their allegations and call the witnesses they deem pertinent, subject to restrictions specified in the CBA.182 The weight of the evidence submitted to the hearing is assessed exclusively by the arbitrator and the latter is not bound by any particular rule of evidence, except those listed explicitly in the CBA.183 The following types of evidence are declared admissible: (1) the overall performance, including official statistics prepared by the NHL (both offensive and defensive), of the player in the current season or preceding seasons;184 (2) the number of games played by the player, his injuries or illnesses during the preceding seasons;185 (3) the player’s number of years of experience in the NHL or the team;186 (4) the overall contribution of the player to the success or failure of the team in the preceding season;187 (5) any special qualities of the player, such as leadership or personal commitment to the community;188 (6) the overall performance in 178. Id. at art. 12.9(b). 179. Id. at art. 12.9(d). The order of argument depends on the party who filed the request, unless the order is determined by the arbitrator or mutually agreed
- 151. upon by the parties. Id. at art. 12.9(k). 180. Id. at art. 12.9(d). If the party presenting second introduces new substantive issues or new players or “comparable players,” the other party will have ten additional minutes for surrebuttal. Id. 181. Aubut, supra note 3, at 204; CBA, supra note 6, at art. 12.9(a). 182. CBA, supra note 6, at art. 12.9(g)(i). The following categories of evidence are inadmissible: the terms of any player’s SPC when he was not a “Group 2 Player;” the SPCs signed by an “Unrestricted Free Agent;” the SPC of any player who has not been presented as a comparable player; qualifying offers made by the team; offers made during negotiations; newspaper columns, press game reports or similar materials; and any reference to walk-away rights. For further discussion, see infra Part IV.B.1.c. Any compensation awarded by a salary arbitrator leading to the use of the walk away right by a club; the financial situation of a team or of the NHL; any reference to the “Lower Limit” or “Upper Limit,” as well as to the “Players’ Share;” any reference to an arbitral decision issued in summer 2005; and lastly, any reference to the salary information contained in previous arbitration decisions. Id. at art. 12.9(g)(iii). 183. Id. at art. 12.9 (g)(i). 184. Id. at art. 12.9(g)(ii)(A). 185. Id. at art. 12.9(g)(ii)(B). 186. Id. at art. 12.9(g)(ii)(C). 187. Id. at art. 12.9(g)(ii)(D). 188. Id. at art. 12.9(g)(ii)(E).
- 153. /0 8 /2 0 1 0 1 0 :2 3 :5 9 27923 spo_20-1 Sheet No. 92 Side B 01/08/2010 10:23:59 C M Y K FOURNIER.DOC (DO NOT DELETE) 12/23/2009 3:24:54 PM 170 M A R Q U E T T E S P O R T S L A W R E V I E W [Vol. 20:1 the previous season or seasons of any player(s) who is alleged to be “comparable” to the player whose salary is in dispute;189 and (7) the annual salary of players alleged to be “comparable.”190 These “comparable statistics” have been sanctioned by the arbitral
- 154. jurisprudence as the most important items of evidence,191 and the arbitrator’s decision is largely based on them. The NHL and the NHLPA must jointly create a comparable exhibit setting out the financial terms contained in the SPCs of all players alleged to be “comparable” players for the arbitration session;192 this involves players who have signed their current contract as a restricted free agent. Moreover, for a player to be used by the arbitrator as a comparable player, the parties must necessarily refer to him in their briefs.193 Finally, the arbitrator renders his or her decision not later than forty-eight hours after the hearing is adjourned.194 The arbitrator’s decision typically includes the salary to be paid to the player,195 the duration of the contract between the player and the team,196 a “minor league clause,”197 if applicable, and the reasons supporting the decision.198 The parties must comply with the orders issued by the arbitrator and draft the SPC accordingly.199 Lastly, each party pays for the expenses generated by their own representation and shares equally the responsibility to reimburse the cost of the arbitration process.200 c. The Walk-Away Right. Although the arbitral decision is imperative, the team can refuse to comply
- 155. 189. Id. at art. 12.9(g)(ii)(F). 190. Id. at art. 12.9(g)(ii)(G). 191. Daniel Dumais et al., Présentation sur L’Arbitration Salariale at the Conference Heenan Blaikie (April 2006) (unpublished). 192. CBA, supra note 6, at art. 12.9(g)(v). 193. Id. at art. 12.9(g)(ii)(G). 194. Id. at art. 12.9(n)(i). 195. Id. at art. 12.9(n)(ii)(B). The arbitrator can decide to award the player a salary equal to one of the two offers made by the parties or any amount between the two offers. Id. 196. Id. at art. 12.9(n)(ii)(A). The term will be one year or two years, based on the player’s decision, in the case where the team filed for arbitration; or based on the team’s decision, in the case where the player filed for arbitration. Id. It should be noted that if the player reaches full autonomy, “Group 3 Player” status at the end of the season following the arbitration session, the team will not be able to decide on a two-year term. Id. at art. 12.9(c). 197. Id. at art. 12.9(n)(ii)(C). 198. Id. at art. 12.9(n)(ii)(D). 199. Id. at art. 12.5(a). 200. Id. at art. 12.9(o). 2 7 9
- 157. 0 1 0 1 0 :2 3 :5 9 27923 spo_20-1 Sheet No. 93 Side A 01/08/2010 10:23:59 C M Y K FOURNIER.DOC (DO NOT DELETE) 12/23/2009 3:24:54 PM 2009] L A B O R R E L A T I O N S I N T H E N H L 171 with it under certain circumstances.201 However, the player does not have this prerogative.202 The Walk- Away Right exists only when it is the player who filed for arbitration.203 Moreover, the team is entitled to exercise its right to walk away only if the player obtains an annual salary of $1,042,173 or more at the close of the arbitration session.204 This right is usually exercised when the team considers that the salary awarded to the player is too high in relation to what it is prepared to pay.
- 158. Nevertheless, the direct consequences of exercising this right are as follows: (1) if the duration of the SPC submitted to arbitration was one season only, the player will become an unrestricted free agent;205 he will then be in a position to negotiate with any other team, including that which used the Walk- Away Right; and (2) if the duration of the SPC covered by the arbitral decision was two seasons, the Walk-Away Right will only apply to the second season, such that the SPC will consequently become a one-season contract; after that season, the player will become an unrestricted free agent; he will then be in a position to offer his services to a team of his choice.206 In both cases, the team must exercise its Walk-Away Right within forty- eight hours following the decision rendered by the arbitrator.207 On the other hand, where the team must attend subsequent salary arbitration sessions with one or more players and still has a Walk Away Right, it can exercise this right within forty-eight hours following the last arbitral decision rendered in these cases, since this will allow it to decide for which player, if any, to use its Walk Away Right.208 201. See id. at art. 12.10. 202. See id. at art. 12.10(e). 203. Id.
- 159. 204. Id. at art. 12.10(a). This amount is raised proportionally, based on the average salary set in the NHL as of the 2007-2008 season. Id. at art. 12.10(d). 205. Id. at art. 12.10(a). 206. Id. at art. 12.10(b). 207. Id. at art. 12.10(a). 208. Id. 2 7 9 2 3 sp o _ 2 0 -1 S h e e t N o . 9 3
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- 161. Lastly, the number of Walk Away Rights authorized per season and for each team depends on the volume of cases filed by its players:209 Number of Walk Away Rights per year per team Number of players having filed for arbitration 1 1 or 2 2 3 or 4 3 5 or more 2. Disputes over the interpretation and application of the Collective Bargaining Agreement and the Standard Player Contract. Grievance arbitration should be distinguished from salary arbitration, mainly because the outcome sought by this mechanism is not the same. In labor law, grievance arbitration is the judicial means of settling all disputes between an employer and a certified union over the interpretation and application of a collective labor agreement.210 The CBA, for its part, defines the term “grievance” as follows: any dispute involving the interpretation or application of, or compliance with, any provision of this Agreement, including any SPC. All Grievances will
- 162. be resolved exclusively in accordance with the procedure set forth in this Article, except wherever another method of dispute resolution is set forth elsewhere in this Agreement.211 Some specific grievances will be subject exclusively to the mechanism of Article 48.212 For all other grievances, the NHL and the NHLPA are the only authorized initiators.213 The player involved in a grievance does not have to be bound by an SPC at the time the grievance arises or when it is filed or 209. Id. at art. 12.10(c). 210. MORIN ET AL., supra note 11, at 1140. 211. CBA, supra note 6, at art. 17.1. 212. A “System Grievance” is any dispute involving the interpretation or application of or compliance with the provisions of Article 49 Player Compensation Cost Redistribution System, Article 50 Team Payroll Range System, those provisions of Article 26 No Circumvention, Article 9 Entry Level Compensation, Article 10 Free Agency, and any other articles in which the grievance resolution could affect the interpretation or application of the provisions of Article 49 or 50. Id. at art. 48.1. 213. Id. at art. 17.2(a). A grievance should be initiated within sixty days, from the date of the events giving rise to the grievance or sixty days from the date when the parties learned or should have learned the facts giving rise to the grievance. Id. at art. 17.2(b).
- 164. 1 /0 8 /2 0 1 0 1 0 :2 3 :5 9 27923 spo_20-1 Sheet No. 94 Side A 01/08/2010 10:23:59 C M Y K FOURNIER.DOC (DO NOT DELETE) 12/23/2009 3:24:54 PM 2009] L A B O R R E L A T I O N S I N T H E N H L 173 heard.214 Written notice of the grievance must be sent to the opposing party by facsimile; the notice must put forward the reasons the grievance was filed, explanations concerning the CBA provisions, which have been violated, and a report detailing the solutions envisaged.215 After being served with a
- 165. grievance, the opposing party has ten days to respond;216 it can either acknowledge or deny the alleged facts.217 At this stage, only the parties involved in the grievance participate in the process and continue to do so until the case is brought before the grievance arbitrator. However, before proceeding to hearing, the parties must first seek to settle their disputes before the Grievance Committee.218 This involves a meeting between the NHL and the NHLPA once a month following the day the grievance was filed, in an effort to settle the dispute before resorting to an arbitrator.219 The discussions and offers of settlement made during this meeting are not admitted as evidence before the arbitrator, if the process goes that far.220 If the grievance is not resolved between the parties during this meeting, the grieving party can bring the case before a grievance arbitrator.221 Just as for salary arbitration, the grievance arbitrator, jointly appointed by the parties, must be a member of the National Academy of Arbitrators.222 The arbitrator renders his or her decision within thirty days following the hearing; he or she has the power to interpret and apply the CBA provisions, including the players’ SPCs.223 However, the arbitrator must not add to, subtract from, or alter in any way the provisions of the CBA or any SPC.224 Lastly, the
- 166. decision of the grievance arbitrator is final, without possible appeal, that is, it puts an end to the dispute and is binding on the parties.225 214. Id. at art. 17.2(b). 215. Id. at art. 17.3(a). 216. Id. at art. 17.3(b). 217. Id. at art. 17.3(c). 218. Id. at art. 17.4(d). However, in some exceptional cases, called “Expedited Arbitration,” the parties may be exempt from this process. Id. at arts. 17.4 (d), 17.17. 219. Id. at art. 17.4(a). 220. Id. at art. 17.4(b). 221. Id. at art. 17.5. 222. Id. at art. 17.6. The selection process of this arbitrator is specified in Article 17.6. Id. The grievance hearing is governed by Articles 17.8 and 17.9. Id. at arts. 17-18. 223. Id. at art. 17.13. 224. Id. 225. Id. 2 7 9 2 3 sp o _
- 168. :2 3 :5 9 27923 spo_20-1 Sheet No. 94 Side B 01/08/2010 10:23:59 C M Y K FOURNIER.DOC (DO NOT DELETE) 12/23/2009 3:24:54 PM 174 M A R Q U E T T E S P O R T S L A W R E V I E W [Vol. 20:1 V. CONCLUSION The labor relations system that has been set up in the NHL is certainly interesting from a theoretical perspective and contains approaches that are worth exploring further, given the contemporary and fundamental issues currently faced by labor law. Thus, due to its particular nature, this system differs considerably from the international framework agreements concluded between international union federations and transnational companies, even though a number of convergent aspects can be observed.226 First, this system was constructed on a voluntary basis, since the NHL accepted the NHLPA as the players’ representative and negotiated a collective
- 169. agreement that determines the working conditions for all players across the NHL. In this sense, the system that has been set up precedes national legislation on collective labor relations, since the latter’s norms and effective implementation do not generally cover the transnational dimension of NHL activities and the labor relations between the players and the teams, or the multi-employer nature that transcends such laws. In fact, the working conditions stipulated in the CBA must be respected by the thirty teams and all of the players in the NHL. Having been negotiated at the global level rather than at the local level, the working conditions constitute the required point of reference for individualized negotiation between a team and a player. Such is the predominant legal impact of this truly collective contract. And while, on the whole, the CBA is intended to standardize working conditions, the rules relating to the establishment of a real salary cap,227 in effect, harmonize salaries across the NHL. Lastly, a private mechanism for salary and grievance arbitration has been developed,228 thus ensuring the binding effect and enforceability of CBA provisions. In other words, the working conditions observed in the CBA are the net result of an advanced process of multi-employer collective bargaining. The
- 170. provisions that it contains are contractually binding, fully and comprehensively on multiple employers—the thirty teams in the NHL—in their relations with some of their employees—the players of the NHL—in a specific industry—a professional sports league—spanning across North America in two different countries. The professional sports industry in North America is certainly a world in itself. Without harboring too many illusions, it is nevertheless our view that 226. Renée-Claude Drouin, Les accords-cadres internationaux: enjeux et portée d’une négociation collective transnationale, 47 CAHIERS DE DROIT 703, 703 (2006). 227. CBA, supra note 6, at art. 40. 228. Id. at arts. 11, 17. 2 7 9 2 3 sp o _ 2 0
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- 173. Interscholastic Sport Governance Tonya L. Sawyer Indiana State University Abstract High school athletics are considered a significant phase of the secondary school educational program. Coaches, athletic directors, and school administrators proclaim the educational values of their athletic programs with pride. However, school officials cannot take credit for introduc- ing these activities into the school program. In fact, students initiated them. Groups of students started athletic contests in colleges following the Civil War. Athletic clubs were patterned after independent athletic clubs to which many of the elite in society belonged during that era. Imi- tating their older brothers and friends, high school students began to form athletic associations around 1900. They elected their own managers, scheduled their own games, and played any teams available. As the interest in competition grew, it was not uncommon for persons outside the school to be recruited to play on the teams. Disputes and brawls occasionally occurred. The interscholastic athletic program, originally an unwanted outsider and later a tolerated extracur- ricular activity, has now gained its rightful place in the secondary curriculum. The program provides opportunities and experiences that make a contribution to the general growth and de- velopment of students and help create a healthy climate in the educational institution and its
- 174. supporting community. Keywords: cheating; eligibility; funding; governance; governing bodies; homeschoolers; pay-to-play; school prayer; sport specialization; sportsmanship; substance abuse 118 Tonya L. Sawyer is compliance coordinator, Department of Intercollegiate Athletics, Indiana State University. Please send author correspondence to [email protected] Journal of Facility Planning, Design, and Management Vol. 3, No. 2, pp. 118–133 Interscholastic Sport Governance 119 Evolution of High School Sports The four stages in the evolution of interscholastic sports are opposition, toleration, recog- nition and capitalization, and exploitation. During opposition, schools did not sponsor high school sports, yet the team representing the student athletic associations eventually came to be identified with their schools and began to embarrass them. School officials found themselves forced to take positions on the recruitment of outsiders to play on the teams, controversies that arose, and volunteer coaching by individuals who had no training as teachers and whose tactics were questionable. As the enthusiasm developed for athletic
- 175. contests among students and the community, and as school administrators realized that the contests would be continued outside the jurisdiction of the schools if outlawed, the majority of school administrators concluded that the only feasible alternative would be to assume control over them, thereby inaugurating the period of tolerance. Tolerance brought steps to make these athletic games more respectable. Faculty members were appointed to chaperone the teams. Schools began to adopt controls to prevent abuse, in- cluding requiring athletes to be bona fide students, creating student-athlete eligibility rules, and developing standards for coaches, who had to be faculty members. During the next period of evolution, school administrators began to recognize that some desirable educational outcomes could result from properly planned and administered inter- school athletic contests. This motivated principals and coaches to formulate specific educational objectives for the interscholastic program. After the standards were adopted to guide the athletic programs, many school administrators began to capitalize on the educational values of athletic activities and to consider them as integral to the secondary school program. When a school activity reached a certain point of popularity, it entered the fourth period, during which attempts were made to exploit the program. As nonschool organizations and in- dividuals recognized the attractiveness of interscholastic games,
- 176. they began to promote events involving high school athletes and the interscholastic athletic program. The primary interests of these promoters were generally in gaining recognition, advertising, and raising funds. However, the collective efforts of high school activity associations at the state and national levels have been effective in eliminating much of this exploitation of high school athletes and school athletic programs. Placed in their proper perspective, and organized and administered as part of a total school program, competitive sports serve as a laboratory for teaching special skills and developing de- sirable habits and attitudes. Sawyer and Gimbert (2014) indicated interschool competition af- fords the superior student in the field of physical activities the opportunity to work toward a high level of achievement and to compete with peers in other schools. The Value of Interscholastic Sports An interscholastic sports program should be designed to develop characteristics such as loyalty to purpose, respect for discipline, capacity to lead and direct, respect of rules and au- thority, ability to act effectively under stress, respect for others, capacity for self-discipline in the interest of accomplishment, ability to develop as an individual as well as a team member, determination to overcome obstacles, an understanding that sportsmanship is the golden rule of practice, enduring relationships with teammates, and ability to develop good health habits,
- 177. strength, and body vigor. The eight common arguments for interscholastic sports in the United States include, ac- cording to Coakley (2014) and Sawyer and Gimbert (2014), (a) involving students in extra- curricular school activities; (b) linking extracurricular activities to academics; (c) developing occupational skills such as establishing responsibility, building achievement orientation, and 120 Sawyer acquiring teamwork skills; (d) providing opportunities for developing physical fitness; (e) stimu- lating interest in physical activities among students in the school; (f ) generating spirit and unity necessary to maintain the school as a viable organization; (g) promoting parental, alumni, and community support for school programs; and (h) providing students opportunities to develop and display skills in activities valued in society at large. To provide a balanced perspective, it is necessary to outline the arguments against inter- scholastic sports. The eight common arguments against interscholastic sports, according to Coakley (2014) and Sawyer and Gimbert (2014), include (a) distracts the attention of students from academic activities; (b) relegates most students to the role of spectator; (c) causes too many serious injuries to active participants; (d) deprives educational programs of resources, facilities, staff, and community support; (e) applies excessive pressure on
- 178. student-athletes; (f ) focuses the attention of students on a power and performance orientation; (g) perpetuates dependence and conformity; and (h) creates a superficial and transitory spirit in the school. Interscholastic Sports Governing Bodies Interscholastic sports governing bodies include conferences or leagues, state high school athletic associations, and the National Federation of State High School Associations (NFHS). Local conferences or leagues are formed to enhance scheduling, provide conference or league championship competition, and implement useful policies and procedures. Types of Associations Although state athletic and activities associations function similarly in most respects, they fall into three general classifications in regard to administrative control. The majority are volun- tary associations through which their member schools cooperatively regulate interschool con- tests and activities. The second type is affiliated with a state education department. The third consists of those administered through institutions of higher learning. Voluntary State Associations Most state associations fall into this category. Membership is voluntary, but is usually de- pendent on member schools meeting specified requirements regarding the financial support of
- 179. the school, its plan of organization, the status of its coaches, and the payment of annual dues. Usually, such organizations limit their competition to member schools. In most states, member- ship is open to public secondary schools accredited by state departments of education. Some states also allow private and parochial schools to join, provided they meet the standards for membership. These organizations are not-for-profit educational corporations that are tax-ex- empted 501(c)3 entities. Board members are elected by schools of different sizes, and some have ex-officio members from legislative bodies or departments of education. Many state associations are responsible for speech, debate, theatre, music, and spirit programs. Some are responsible for only Grades 9–12 (e.g., Indiana) and others coordinate activities for Grades 6–12 (e.g., Texas). The state associations in this category include Alabama, Alaska, Arizona, Arkansas, California, Colorado, District of Columbia, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kentucky, Louisiana, Maine, Maryland, Minnesota, Missouri, Montana, Nebraska, Nevada, New Jersey, New Mexico, North Dakota, Ohio, Oklahoma, Pennsylvania, South Dakota, Tennessee, Utah, Washington, West Virginia, Wisconsin, and Wyoming. State Associations Affiliated With State Departments of Education The following states are affiliated with state departments of education: Connecticut, Dela- ware, Kansas, Massachusetts, Michigan, Mississippi, New
- 180. Hampshire, New York, North Caroli- na, Rhode Island, and Vermont. These associations have direct links (e.g., communication, com- mittee appointments) with the state departments of education, but are not governed by the state. Interscholastic Sport Governance 121 University-Directed State Associations The following state associations are university directed: South Carolina (University of South Carolina), Texas (University of Texas), and Virginia (University of Virginia). These organizations are housed in colleges of or schools of education on a university campus. The universities do not govern them. They are free-standing organizations with boards and bylaws. Advantages of Joining a State Association The advantages of belonging to the state association are (a) eligibility for participation in state championship athletic events, (b) enforcement of regulations for the conduct of athletics, (c) sponsorship of a classification plan for athletic competition (i.e., a state might have four clas- sifications based on size of school population including 1-A, 2- A, 3-A, and 4-A), (d) certification and assignment of athletic officials, (e) enforcement of athletic standards (i.e., eligibility, transfer, and academic standards), (f ) published bulletins and newsletters, (g) enforcement of sportsman- ship, and (h) a final authority for the resolution of questions,
- 181. controversies, and appeals. Finally, member schools have obligations to the association, which include compliance with regulations of the association, cooperation, support, and loyalty. The National Federation of High School Athletic Associations By 1920, state high school associations had been formed in 29 states. They proved to be desirable and necessary in keeping interscholastic athletics in perspective within the school pro- gram and in making them educationally worthwhile. With the formation of the original Midwest Federation of State High School Athletic Associations in 1920, the first cooperative effort of state associations to control high school athletics came into being. The original organization of five states (Illinois, Indiana, Iowa, Michigan, and Wisconsin) was the forerunner of the NFHS. In 1970, the word athletics was dropped from the name to expand the responsibilities to include nonathletic activities. The NFHS has two primary services, namely, controlling interstate competition and pre- venting exploitation of high school athletes and interscholastic athletics by promoters of athletic events to which high school teams and individual athletes are invited. Other services include the National Federation Press, national interscholastic records, rules writing, audio-visual aids, athletic experimental studies, athletic insurance, athletic safety and protection, professional in- terscholastic athletic organizations, rules interpretation meetings, sports participation surveys, National Federation awards, award of merit, National High
- 182. School Hall of Fame, National High School activities week, and legal aid pact. The NFHS has six professional organizations under its umbrella including the National Federation of Interscholastic Athletic Coaches (NFICA); National Association of Interscholastic Officials Association (NFIOA); spirit association; speech, debate, and theatre association; music association; and National Interscholastic Athletic Administrators Association (NIAAA). The NIAAA (www.niaaa.org) promotes the professional growth and image of interscholas- tic athletic administrators. It promotes the development and prestige of state athletic adminis- trators’ organizations, which will contribute, in cooperation with their state high school associa- tions, to the interscholastic athletic program of each state. Furthermore, it provides an efficient system for exchange of ideas between the NFHS and state athletic administrators’ organizations as well as individual athletic administrators. Finally, it strives to preserve the educational nature of interscholastic athletics and the place of these programs in the curricula of schools. Governance Wong (2010) suggested, “The power and authority in high school athletics are in the indi- vidual state organizations, which determine the rules and regulations for the sports programs
- 183. 122 Sawyer and schools within that state” (p. 26). The five basic components of governance, according to Sawyer and Gimbert (2014), are (a) organizational structure, (b) function, (c) authority, (d) re- quirements for membership, and (e) sanctions and appeals process. The best way to illustrate these components as they relate to an interscholastic governing body is to use a state high school athletic association as an example. Organizational Structure Most state high school athletic associations have the following organizational structure: board of directors (elected by the membership), executive committee as established by the by- laws, commissioner, an associate commissioner, and assistant commissioners. The NFHS has a board of directors (elected by the membership), executive committee, executive director (ap- pointed by the board), and directors. Function The function or purpose of state high school associations is stated in their constitutions, which illustrate why these organizations were founded and what they are expected to accom- plish. In general, the function of state high school athletic associations is to encourage, regu- late, and give direction to wholesome amateur interschool athletic competition between schools that are members of the association. The primary purposes of these association are to (a) as-
- 184. sure that the program of interschool athletic competition remains steadfast to the principles of wholesome amateur athletics and subservient to its primary academic or curricular functions of education of the member schools; (b) furnish protection against exploitation of students at member schools; (c) determine qualifications of individual contestants, coaches, and officials; and (c) provide written communications to established standards for eligibility, competition, and sportsmanship. Sawyer and Gimbert (2014) and Sawyer and Judge (2012) suggested the following objec- tives of athletic and activity types: • to foster and develop amateur athletics among the secondary schools of the state (New Jersey State Interscholastic Athletic Association), • to equalize athletic opportunities by standardizing rules of eligibility for individuals and by classifying the competitive purposes of the institutions that are members of the association (Indiana High School Athletic Association), • to promote uniformity in the arrangement and control of contests (Montana High School Association), • to protect the mutual interests of the members of the association through the cultiva- tion of ideals of clean sport in relation to the development of character (Missouri State High School Activities Association),
- 185. • to ensure that interscholastic activities shall supplement the curricular program of the school to provide opportunities for youth to acquire worthwhile knowledge, skills, and emotional patterns (Washington Interscholastic Activities Association), and • to foster a cooperative spirit and good sportsmanship on the part of school representa- tives, school patrons, and students (Illinois High School Association). The mission of the NFHS (2014b) is to serve its members and its related professional groups by providing leadership and national coordination for the administration of interscholastic ac- tivities that will enhance the educational experiences of high school students and reduce risks of their participation. The NFHS’s function is to (a) promote participation and sportsmanship and (b) develop good citizens through interscholastic activities, which provide equitable opportuni- ties, positive recognition, and learning experiences to students while maximizing the achieve- ment of educational goals. Interscholastic Sport Governance 123 Authority Principals of the secondary schools or state departments of education establish the author- ity for state high school athletic associations. These voluntary associations are charged to plan,
- 186. organize, and regulate a wholesome amateur program of interschool athletic competition in which school members of such associations would participate. The NFHS gains its authority from the 50 member state associations. Requirements for Membership Memberships are voluntary. Full membership in a state high school athletic association shall be open to public, private, parochial, boarding, and institutional high schools of the state offering and maintaining 2 or more years of high school work, provided they meet the require- ments of the association and also subscribe to its rules and regulations. For a school to be eligible for membership, it must have full accreditation from the state department of education or be fully accredited by a regional accrediting agency (i.e., North Central Association, Southern As- sociation of Colleges and Schools (SACS) Council on Accreditation and School Improvement, and others). Members of the NFHS include 50 state high school athletic associations, the District of Co- lumbia, and over 30 affiliate members. The affiliate members include all the Canadian provinces and a variety of state music associations. It is a not-for-profit organization located in Indianapo- lis, Indiana. Funding The major source of revenue for the NFHS is sale of publications. These publications include
- 187. rule books (revised annually for all sports), miscellaneous sports items (e.g., tournament guides, facilities design materials), sports guides, handbooks, officials’ interpretation books, debate and speech books, among others. In addition, the organization earns funds from membership dues, meetings and conferences, royalties, and contracts for injury insurance. The major source of revenue for a state high school association is tournament revenue. The greatest source of tournament revenue is derived from football and boys’ basketball. However, girls’ basketball is beginning to show a dramatic increase. In addition, the state associations gen- erate revenue from membership dues, tournament fees, ball contracts (i.e., selection of tourna- ment balls), sponsorships, and sale of publications. High school athletic programs’ key revenue source is gate receipts. In addition, high schools in some states have begun charging athletes for the privilege to participate in sports. Other sources of revenue include concessions, merchandise sales, parking fees, advertising, and spon- sorships. In general, a small amount is allocated from the general fund or taxpayer sources. The two exceptions are coaches’ salaries (paid through the teacher contract and negotiated by the teacher bargaining unit) and transportation, which generally is included in the transportation fund, often a separate tax. Sanctions and Appeals Process Each state high school athletic association has established a sanction and appeals process.
- 188. Commonly, the board of directors establishes the sanctions. The commissioners or executive directors implement the sanctions. Commissioners’ or executive directors’ decisions can be ap- pealed to either the board of directors or executive committees. In some states, the decision of the board of directors or executive committees can be appealed to a state-appointed appeals committee, such as in Indiana. The NFHS does not sanction high schools, but rather sanctions events between states or a foreign country. The NFHS requires sanctioning of (a) any interstate event involving two or 124 Sawyer more schools that is cosponsored by or titled in the name of an organization outside the school community (e.g., AAU), (b) events in nonbordering states if five or more states are involved, (c) events in nonbordering states if more than eight schools are involved, and (d) any event involv- ing two or more schools that involves a team from a foreign country. Interscholastic Policy Areas High school athletic associations are responsible for developing policy for the operation of interscholastic sports within a state or Canadian province. The policy areas are most often focused on (a) membership in the association; (b)
- 189. corporation/association districts; (c) classes of schools and competition; (d) roles of the board, executive committee, commissioner, and ex- ecutive staff; (e) eligibility; (f ) age; (g) amateurism; (h) coaches; (i) conduct, character, and disci- pline; (j) intrastate and interstate contests; (k) game and official contracts; (l) officials; (m) enroll- ment and attendance; (n) academic standing/scholarship; (o) eligibility and transfer; (p) undue influence; and (q) specific policies for each sport over and above the NFHS-established rules. Interscholastic Athletic Issues A number of important interscholastic athletic issues affect sports. They include issues such as amateurism, cheating, deviance and violence, eligibility (i.e., academic, age, red shirting, and transfer rules), equity (i.e., gender and homeschoolers), funding, pressure to win, school prayer, specialization, sportsmanship, and substance abuse. Amateurism Only an amateur student-athlete is eligible for interscholastic athletic participation in a par- ticular sport. A student-athlete loses amateur status and shall not be eligible for interscholastic competition in a particular sport if he or she • is paid (in any form) or accepts the promise of pay for participation in an athletic contest; • accepts a benefit other than of a symbolic nature, directly or indirectly, for athletic
- 190. participation in that sport; • signs a contract or verbally commits with an agent or a professional sports organiza- tion; • requests that his or her name be placed on a draft list or otherwise agrees to negotiate with a professional sports organization; • uses his or her athletic skill directly or indirectly for pay (e.g., TV commercials, skills demonstrations); • participates in athletic activities, tryouts, auditions, practices, and games held or spon- sored by professional athletic organizations, clubs, or their representatives during the contest season; • participates on an amateur sports team and receives, directly or indirectly, any sal- ary, incentive payment, award, gratuity, educational expenses, or expense allowances (other than playing apparel, equipment, actual and necessary travel, and room and board expenses for practice and games); or • fails to return player equipment or uniforms issued by a school or nonschool team when the season for that sport concluded or when the student’s continued participa- tion on such team concluded. To avoid the risk of jeopardizing their current or future eligibility, student-athletes should al-
- 191. ways check with the athletic director for compliance and/or the coach prior to participating in any contest in which awards or prizes are to be given and/or before beginning any employment related to their sport or sports skills. Interscholastic Sport Governance 125 Cheating Cheating often involves a violation of the rules to gain an unfair advantage over an oppo- nent. The types of cheating depend on the sport and the creativity of the participants. Clearly, cheating is antithetical to educational values and should have no place in educational programs. Some coaches are under pressure to win at all costs and use illegal techniques that are diffi- cult to detect. For example, holding or tripping by the offensive linemen in football, touching the lower half of a basketball player when shooting, faking being fouled, faking an injury to gain an extra time-out, or not going to the huddle and standing near the sidelines. Furthermore, coaches sometimes break the spirit of a rule, if not the rule itself. For example, teams may not have or- ganized practices before a certain date, yet coaches insist on players practicing, with captains in charge or coaches at a distance yelling orders. As long as there is pressure to win, coaches, parents, and student-athletes will cheat. High school athletic administrators need to emphasize honesty and
- 192. integrity within athletics. These are characteristics that student-athletes should learn while participating in sports. Winning at all costs should never be acceptable in an athletic program. Deviance and Violence Is deviance and violence out of control? A quick glance at the sports pages over the past few years would lead one to believe that deviance and violence in sports is out of control. The media coverage of on-the-field rule violations and violence and off- the-field behavior would like the reading public to assume that participants in sports (e.g., athletes, coaches, and spectators) are devious and violent. The commonly reported examples of deviance include cheating, gambling, shaving points, throwing games or matches, engaging in unsportsmanlike conduct, fighting (violence), taking performance-enhancing drugs, and generally finding ways to avoid rules. Over the years, devi- ance has become a serious problem in most sports because of pressures to perform and win that have been heightened by increased commercialization and television coverage. Violence among spectators is influenced by violence on the field of play as well as crowd dynamics, the situation at the event, and the overall historical and cultural context in which spectators live. Coaches and teammates have encouraged violence on the field of play by other athletes. High school athletic associations continue to try to reduce violence on the field or court
- 193. and in the stands. Many of the high school athletic associations are trying hard to improve sportsmanship in interscholastic athletics. The sportsmanship programs are aimed toward athletes, coaches, and spectators. The sportsmanship programs are designed to eliminate cheating, gambling, fighting, and violation of rules by athletes and coaches and to encourage spectators to behave as ladies and gentlemen while attending contests. The Indiana High School Athletic Association (IHSAA) in collaboration with the Indiana Farm Bureau Insurance Company has developed a statewide scholarship program for schools that demonstrate good sportsmanship. In addition, they actively support the sportsmanship theme through championship advertisements; sportsmanship semi- nars for athletes, coaches, and parents; and a sportsmanship presence on the IHSAA website. Eligibility Who plays and who does not? The answer to this question often causes heated debates and court challenges. The most common factors used in determining if a person can participate include ability (disability), academic standing, age, citizenship, educational affiliation (private, public, or charter schools), gender, grade in school, height, place of residence, and weight. Eligi- bility rules are often challenged because of arbitrariness. High school students have contested eli- gibility (transfer) rules when their families have moved from one school district to another and
- 194. 126 Sawyer they have been found they are ineligible to play varsity sports. High school athletic associations have established eligibility rules to ensure a fair competitive situation for all student-athletes. Participation in interscholastic athletics is voluntary and a privilege in the reasoning of the courts, which may be extended at the discretion of the school board and the state high school athletic association. When eligibility standards are challenged in the courts, they must, in most circumstances, withstand only rational basis scrutiny. Wong (2010) suggested this means that if the requirements are rationally related to the purpose of the activity and not arbitrary, capri- cious, or unjustly discriminatory, they will be upheld by the courts. Academic eligibility (no pass, no play). Academic eligibility has gained attention with the increase in NCAA academic requirements and the ability of students to meet the NCAA Clearinghouse standards for future collegiate participation. Realizing that the age group served by high schools represents an interval in human development that can be turbulent and com- plex, high school athletic associations have been concerned with educating the whole person. Therefore, the primary focus of the secondary school should be to provide educational oppor- tunities for its students in accordance with the requirements set forth by state education depart-
- 195. ments. This academic training should progress toward an adequate education and ultimately a high school diploma. Participation in interschool programs is a privilege for which reasonable standards should be established and enforced for the educational and personal welfare of the students who participate. If students cannot successfully carry and pass a normal minimum load of formal classroom work and simultaneously undertake the extra demands on time and energy required by interschool participation, they should postpone their commitment to inter- school programs and concentrate time and effort on achieving in the classroom. Based on these premises, high school athletic associations have established minimum academic achievement requirements. These minimum academic eligibility standards have promoted the establishment of higher educational standards, upgraded student academic performance, countered public criticism of schools for low expectations and low student achievement, and enabled schools to use athletic participation as a motivator for better classroom performance and achievement. High school athletic associations use several means of demonstrating academic eligibility for athletic participation in high school including grade point average (GPA), courses passed in previous and/or current semesters, courses passed in previous year, percentage of daily atten- dance, enrollment in the minimum number of periods, and maintaining a grade of 70 in each class during a 6-week grading period to stay eligible for the next 6-week grading period. Thus, different states use a variety of standards to demonstrate
- 196. academic qualification for athletic par- ticipation in high schools. For example, Indiana requires students to complete five solid courses (e.g., English, mathematics, social studies, life science, chemistry, physics, or history) with a D or better grade to maintain athletic eligibility. This is a 60% average. It does not meet the minimum NCAA Eligibility Center standards. Furthermore, in 1985, the Texas legislature passed a statute requiring students to earn a grade of 70 in each class during a 6-week grading period to stay eligible for the next 6-week grad- ing period. This statute has been known as the “no pass, no play rule.” This law was contested in court and upheld. However, the Texas legislature modified the law to make it more permissive, allowing failing students to rejoin the team if they are passing after 3 weeks. It further allows fail- ing students to practice or rehearse during a suspension period. No pass, no play rules have garnered opposition for good and bad reasons, but it is not fair to allow students to participate in sports at the high school level not meeting the minimum NCAA Eligibility Center standards. High school athletic administrators should encourage high school athletic associations and school boards to increase academic standards for participation to at least the minimum NCAA Eligibility Center standards. This would allow students who have chosen to move on to higher education a chance at further sports participation.
- 197. Interscholastic Sport Governance 127 Age eligibility (longevity). High school athletic associations have developed rules of lon- gevity to eliminate the problem of red shirting (see Red Shirting). Longevity rules determine the limits for participation in terms of semesters/years (i.e., eight semesters within 4 years or eight consecutive semesters) allowed to complete competition and a maximum age (i.e., 18 or 19) beyond which interscholastic competition may not continue. The longevity rules are designed to equalize competition and have been defended on the grounds that they prevent older, more mature students from compromising the health and safety of the younger student-athlete; that 19- or 20-year-old students are not the average high school student; and that they eliminated the possibility of athletes red shirting to gain competitive ad- vantage. Although longevity rules eliminate the problem with aging athletes, it causes another prob- lem: discrimination toward a select group of students, those with mental disabilities. The high school athletic association’s longevity rule often prevents students with mental disabilities from participating in extracurricular activities during their junior and senior years. These students often need extra time to finish high school. When these students have contested this rule, courts have ruled that when participation in interscholastic sports is included as a component of the IEP (individual education plan) as a related service, the privilege of competing in interscholastic
- 198. sports is transformed into a federally protected right. In general, if participation in interscholas- tic athletics is not a component of the student’s IEP, the court would rule that the student has no constitutional right to participate in interscholastic sports. The athletic administrator with athletes who have mental disabilities should work coopera- tively with the special education teachers and coordinators to ensure students have the opportu- nity to participate through their senior year. This means developing an appropriate IEP for each student who participates in athletics. Red shirting. Red shirting is the practice of delaying a student- athlete’s competition to extend the athlete’s career. Red shirting is an effective strategy to take advantage of an extra year’s growth, maturity, and skill development. This practice is common in intercollegiate programs, but high school athletic associations’ rules do not permit the practice because it is contrary to the educational mission. Furthermore, the practice creates unfair competition advantages, danger- ous mismatches, and unwarranted exclusion of peer student- athletes. However, high school athletic associations recognize illness and/or injury and academic determinations of grade level as legitimate reasons as exceptions to the rules precluding red shirting and make appropriate allowances. In general, courts have agreed with the rational argu- ment that red shirting regulations preserve the privilege of interscholastic athletic competition, consistent with the educational mission.
- 199. Transfer. The privilege of participation in interschool athletics should fundamentally be available to bona fide students in school districts where their parents or legally established guardians reside. Standards governing residence and transfer are a necessary prerequisite, ac- cording to Sawyer and Gimbert (2014) and Sawyer and Judge (2012), to participation in inter- school athletics because (a) they protect the opportunities of bona fide students to participate; (b) they provide a fundamentally fair and equitable framework in which interschool athletic competition, in an educational setting, can occur; (c) they provide uniform standards for all schools to follow in maintaining athletic competition; (d) they support the educational philoso- phy that athletics is a privilege that must not be permitted to assume a dominant position in a student’s or school’s program; (e) they keep the focus of educators and students on students at- tending school to receive an education first and participate in athletics second; (f ) they maintain the fundamental principle that a high school student should live at home with his or her parents or legally appointed guardian and attend school in the school district in which the parents or guardians live; (g) they reinforce the view that the family is a strong and viable unit in society 128 Sawyer and, as such, is the best place for students to live while attending high school; (h) they serve as
- 200. a deterrent to students who would transfer schools for athletic reasons and to individuals who would seek to recruit student-athletes to attend a particular school for the purpose of building athletic strength; (i) they serve as a deterrent to students running away from or avoiding an athletic conflict or discipline that has been imposed; and (j) they protect school programs from losing students who have established an identity as an athlete and, as such, are contributors to the overall school program and image. There are many legitimate reasons for transfers including family relocations caused by new employment or divorce or relocations from a small rural school to a larger suburban school to gain additional academic opportunities (i.e., expanded elective academic courses in mathemat- ics and sciences). These reasons and others constitute a basis for exceptions within the transfer rules. Transfer rules are popular targets for legal challenges based on claims of violations of equal protection, freedom of religion, right to travel, and due process. In general, the courts have up- held transfer rules under rational judicial scrutiny. Considering that no fundamental right has been compromised or any suspect class established, the transfer rule need only be rationally related to the purpose stated above to be upheld by the court. However, if the student-athlete can establish fraud, collusion, or arbitrariness, the possibility exists for a successful challenge. Equity
- 201. Equity is an important issue facing public high schools. It is imperative that public high schools not discriminate against any student. The most common areas of discrimination over the years have been focused on age, gender, students with disabilities, homeschoolers, race, and, re- ligion. However, gender and homeschoolers have been hot issues recently and will be discussed next. Gender. Gender equity has been an issue since the early 1970s and before. The issue is focused on opportunities for equal access to participation by both genders. Title IX (Education Amendments, 1972) has opened many doors for young girls and women to participate in sports in the public school arena. Over the past 30+ years, most of the inequities and barriers for young women have been eliminated in interscholastic athletics. In 1970, over 2,000,000 men and boys participated in high school athletics and less than 800,000 women and girls. In 2005, over 2,800,000 men and boys participated and over 2,300,000 women and girls. It is projected that by 2020 the number women and girls will exceed the num- ber of men and boys participating in high school athletics (SBJnet, 2014). Recent trends include issues related to protecting members of discontinued men’s teams (e.g., diving, gymnastics, and wrestling) and having the opportunity to participate without fac- ing sexual harassment. It is clear that Title IX protects the participation rights of the historically
- 202. underrepresented gender. In the athletic world, the underrepresented gender is female. Title IX protects students, teachers, and coaches from sexual harassment, which is not only a Title IX violation, but also a criminal offense when it involves a young adult. Title IX has a prohibition against sexual harassment and it defines one method specially: quid pro quo. This is harassment based on a bargain or proposition in which the coach offers the student-athlete something for performing a sexual favor. For example, Coach XYZ offers Sally increased playing time if she has sex with him or her. In sexual harassment cases, the sex of the perpetrator and the victim are not relevant, and civility is not required. Gender equity requires that the selection of sports and levels of competition effectively ac- commodate the interests and abilities of members of both genders. High school athletic associa- tions and public high schools need to continue to focus on participation opportunities for boys and girls. The challenges that high schools face include (a) facility equity (e.g., girls’ softball field vs. boys’ baseball field or girls’ soccer field vs. boys’ soccer complex), (b) equity in scheduling Interscholastic Sport Governance 129 (i.e., scheduling girls’ activities in nontraditional times of the year), (c) girls on boys teams (e.g., football, soccer, and wrestling), and (d) boys on girls teams (e.g., volleyball). The common exam-
- 203. ples of facility inequity are that the boys’ facilities had announcer’s booth, batting cages, conces- sion stands, lights, press boxes, restrooms, scoreboards, and covered and secured storage areas. Homeschoolers. A current issue facing many public schools is whether to permit home- schoolers to participate in sports and other activities in their district’s public schools. Many people believe that homeschooled students should be able to participate in school-sponsored extracurricular activities for many reasons. In Indiana, an estimated 33,455 students were being taught at home in 2013–2014, from among 1.1 million school- aged children statewide, accord- ing to the Indiana Department of Education (2014). This is a complex policy area involving state legislatures, state associations, local school districts, and the legal system. National legislation does not provide guidance in this area of policy development, leaving states and others to decide. If homeschooled students want to interact and participate in school-sponsored sports, they must be ready to take on many conflicts. Local school boards nationally have had to make policy decisions that negatively affect these students. For example, the public schools in Pennsylvania are required to give homeschoolers access to curriculum and books as requested. However, state law allows individual school districts to decide whether to make district activities available to homeschoolers. Questions continue to emerge and policy continues to evolve in this complex area as home-
- 204. schooled students in different states seek the opportunity to participate. According to Sawyer and Gimbert (2014) and Sawyer and Judge (2012), the most common questions include the following: • Is it fair to deny homeschoolers the chance to play when their families pay taxes that fund public education? Some would say they made the choice freely not to attend public school and knew that they would not be eligible to play sports for the local high school or any high school for that fact. • Is it fair for homeschoolers to take regularly enrolled students’ positions on teams? An interesting question as foreign exchange students in the country for 1 year or less do just that—they take positions of regularly enrolled students. So why not homeschool- ers? • What educational message is sent when it is acceptable for homeschoolers to play sports with, but not go to school with, other students? • Should coaches be encouraged and allowed to recruit good homeschooler athletes to strengthen their high school teams? Funding (Soaring Costs) The costs related to operating a high school athletic program have increased dramatically in the past 20 years. The number of sports offered in an athletic program has increased from as
- 205. few as 10 to over 20, the number of coaches employed has doubled, and the number of partici- pants continues to increase annually. The changes in demographics have fueled the soaring costs of operations. Generally, school districts allocate dollars from the general fund to compensate coaches, construct and maintain facilities, and provide transportation, except for drivers’ com- pensation. The athletic departments are required to raise revenue to meet additional expendi- tures including awards, drivers’ compensation for team travel, officials, uniforms, equipment, and game management personnel. Some athletic departments are required to raise funds for construction of new sports facilities. High schools generate revenue generally through ticket sales, program sales, advertising, sponsorships, fundraising activities (e.g., golf tournaments, awards dinners), and booster clubs. Often these efforts fall short, and the department is faced with cutting sports, requiring parents 130 Sawyer to donate funds to the booster club, assessing equipment fees, or assessing fees to play (except in California or South Dakota). The issue facing all high schools, large and small, poor and affluent, is a soaring cost to operate interscholastic athletic programs. The future is not bright for financing interscholastic athletics. Gate receipts are not keeping up with operational
- 206. costs. Athletic administrators are looking for creative ways to add other revenue streams including advertising, sales of licensed products, sponsorships, and pay-to-play, but is pay-to-play the best method to solve the growing problem? Will pay-to-play create more problems than it solves? Pay-to-Play As sports teams begin practice across the country each year, many parents and student- athletes are realizing that it may take more than talent to make the cut. Increasingly, schools are charging participation fees for students to be on a team—a trend that educators and sports advocates say is a danger to the concept of public education and the overall effort to involve more children in athletic activities. Fees typically are $75 to $100 nationally and more often are charged for sports than for clubs and activities (National Federation of High School Associations, 2014a). Fees are often waived or reduced for students in federal free or reduced-price lunch programs and sometimes are capped at several hundred dollars for families with children in several sports. Moreover, implementation of pay-to-play seems to lead to lower participation at a time when participation is rising in schools that do not charge to play sports. The implication is that playing a sport at a public high school is a privilege to be paid for, not earned through effort. Furthermore, there is some drop-off in participation when pay- to-play is implemented. Finally,
- 207. some parents feel that because they are paying, they have the right to control when their child plays in a game. Some parents are aggressive, and this can cause problems. Parents who pay for their children to play sometimes believe that should guarantee playing time. Pressure to Win Most people play a sport for the thrill of having fun with others who share the same inter- est, right? But it is not always fun and games. Often student athletes who play competitive sports have had thoughts such as this at one time or another: “Man, I can’t believe I let the ball in the goal, and I know from the look in coach’s eyes that he wasn’t happy.” Coakley (2014) and Sawyer and Gimbert (2014) suggested coaches, parents, and peers ap- ply pressure in high school sports. Much of the time it comes from the feeling that a parent or coach expects to win. But, sometimes, it comes from inside, too. Some players are hard on themselves. Individual situations can add to the stress, too. Maybe there is a recruiter from the athlete’s number one college scouting on the sidelines. Whatever the cause, the pressure to win can sometimes stress the athlete to the point that the athlete does not know how to have fun anymore. Perhaps it could even be the reason why the athlete has not been playing as well lately. The athletic administrator, being aware of this situation, should develop or seek assistance from outside consultants to develop workshops focusing on how
- 208. to overcome and prevent undue pressure to win. These workshops should be for athletes, coaches, and parents. The role of athlet- ics should be to have fun and learn how to win and lose gracefully. School Prayer Organized prayers by coaches have been determined to be unconstitutional by the Supreme Court. The practice violates the concept of separation of church and state. The coach is an agent of the school; thus, organized prayer is determined to be school sponsored. School sponsorship of a religious message is not appropriate because it tells members of the audience who are non- adherents that they are outsiders. Interscholastic Sport Governance 131 However, a student-led prayer in the locker room or on the field or court remains a legally gray area, unless a school official (i.e., the coach) has organized the prayer. It has been argued that students have a free speech right to initiate prayers. The federal courts, according to Sawyer and Gimbert (2014), have ruled that student-led prayer can be as coercive and involuntary as teacher-led prayer and therefore should be banned as teacher-led prayer in the public schools has been since 1962. Yet the right to private acts of devotion, even in school, is protected. Nothing in the Constitution prohibits public school students from voluntarily praying at any time before,
- 209. during, or after the school day. In the southern states, public expressions of religious faith are part of the daily routine. These Christian individuals and organizations have promoted prayer and other religious activi- ties in the school. However, they are in direct conflict with individuals and groups (i.e., Ameri- can Civil Liberties Union) who have claimed that the First Amendment to the Constitution specifically prohibits religious practices under the jurisdiction of the public schools. Specialization This is the age of specialization—and the decline of the three- sport athlete—in high school sports. It is the age of heightened intensity and competition— and increased spending by school districts and parents. Athletic directors and coaches share a consensus that today’s high school- ers are more skilled than ever. The changes have created a “professional” youth sports model designed to churn out elite athletes. That has placed added pressure on teenage athletes to train harder—and specialize earlier—if they hope to keep up. The competition has spawned a cottage industry of instruction and training to help chil- dren reach their goals. The athletic instruction/training industry is estimated nationally to be a $4 billion business—and growing steadily in Minnesota and many other states. It is common to see children not only specializing in one sport, but also specializing in one position within that sport at a young age. There are fewer and fewer three-sport
- 210. athletes in high schools. Parents are more involved. Consequently, children are better players. Elite club or AAU all-star teams exist in almost every sport, starting with children in early grade school. Opportunities for self-im- provement are as limitless as the athlete’s work ethic and parents’ checkbook. Camps and clinics exist for goalies and quarterbacks, for soccer players and jump shooters, for wrestlers and vol- leyball players. Children can choose between day camps, overnight camps, instruction-intensive camps, and specialized skill camps (e.g., pitching, batting, quarterback). Specialized training centers have become a staple of high school training, especially among suburban athletes whose parents have the disposable income for such extras. They offer super- vised workouts by personal trainers, who combine conditioning with strength, agility, and speed training plus a recruiting service through which they attempt to link athletes with college coach- es by making physical profiles available on the Internet. Sportsmanship The world of sport has never been perfect. Problems have ranged from spitballs to steroids, from fixed games to brawls between athletes and fans. The origins of many of these troubles are difficult to pinpoint and eliminate, but lack of sportsmanship is not among them. Who hasn’t complained about a referee’s call? Who hasn’t heard someone holler, “Hey Coach! You’re an idiot!” Who has not seen competing athletes go nose-to-nose, ready to start throwing punches,
- 211. before being separated? Sportsmanship may seem like an odd concept in these days of million-dollar contracts and 24-hour-a-day television replays. But on the high school level, the troubles are—or at least should be—more manageable. Young athletes are not playing for money, their coaches certainly are not doing it for the paycheck, and nothing is truly on the line except pride and tradition. Yet problems persist. 132 Sawyer Recently, 116 boys’ soccer players were ejected from Minnesota high school games. In addi- tion, 136 players were ejected from boys’ hockey games (Minnesota High School Athletic Asso- ciation, 2014). The pressure to succeed, the pressure to win, the pressure to grab the golden ring of a college scholarship or a professional career has warped the sports world. Do theater owners allow people to scream, throw objects, and start fights at movies or concerts? Of course not, so why is it accepted at sporting events? In quiet ways, away from the madding crowd, individuals and organizations are working toward more and better sportsmanship in almost all of the state high school associations. These associations are attempting to generally define sportsmanlike behavior as striving to succeed but committed to playing by the rules and observing ethical standards that take precedence over
- 212. strategic gain when the two conflict. This view is universally admired, but fair play sometimes conflicts with the quest for victory. Herein lies the dilemma for coaches, administrators, parents, and student-athletes. Substance Abuse Substance abuse is not new to athletes. Evidence indicates that athletes have sought and used performance-enhancing drugs for centuries. Athletes in Greece and Rome used potions and substances, including hallucinogenic mushrooms, believed to improve physical perfor- mance. Strychnine and brandy was the potion of choice among European distance skaters dur- ing the 1700s and distance runners during the 1800s. Other drugs including opium, alcohol, caffeine, strychnine, ethyl ether, and nitroglycerine were also used during this period. High school students abuse drugs (alcohol, caffeine, nicotine, and others) and use perfor- mance-enhancing drugs (steroids). The use pattern increases proportionately as the pressure to win accelerates. There are two basic answers to this problem. The first is to develop a sound comprehensive drug policy, and the second is to reduce the amount of pressure placed upon student-athletes to win. Drug Testing A growing trend in high schools is to deter the use of performance-enhancing and/or rec- reational drugs. High schools nationwide have enacted a drug
- 213. policy that includes drug testing. Drug tests today are much more sophisticated and yield much more information than whether the student-athlete is using drugs. This intrusion into the individual’s privacy rights raises an issue for organizations wishing to test student-athletes (Wong, 2010). A comprehensive drug policy should include drug education, prevention, rehabilitation, and testing. The leading case in drug testing of interscholastic student- athletes is Vernonia Sch. Dist. v. Acton (1995). The U.S. Supreme Court found in this case that the school’s interest in deterring drug use by school children was an important state interest. The court concluded that a drug problem largely fueled by the role model effect of athlete’s drug use, and of particular danger to athletes, is effectively addressed by the drug testing of athletes. Courts since this case have ruled in favor of drug testing programs as long as they fulfill a compelling need and the reasonableness requirement, that is, the objectives necessitating the implementation of a drug testing program will outweigh the potential invasion of privacy of the student- athletes. Finally, in Vernonia, the court clearly stated that athletes can be compelled to produce a urine sample. Drug testing of high school students exploded after the Supreme Court ruled upon Ver- nonia Sch. Dist. v. Acton (1995). One of the main concerns about drug policies is the failure to provide sufficient due process to the student-athlete who tested positive. The key components of a sound drug policy include a clear drug testing procedure, a
- 214. clear definition of probable cause or reasonable suspicion, confidentiality, due process, and sanctions to be imposed. Interscholastic Sport Governance 133 Drug Prevention Many state associations (e.g., Illinois, Indiana, Michigan, New York, Ohio, Pennsylvania, and others) and high schools nationwide have developed and implemented drug prevention pro- grams for athletes. These programs have been focused on alcohol, nicotine, recreational drugs, and performance-enhancing substances. The NFHS encourages state associations to be proactive regarding drug prevention. The NFHS (2014b) states in its philosophy statement, “…Students should be encouraged and sup- ported in their efforts to develop and maintain a lifestyle free from tobacco, alcohol, and other drugs” (para. 5). Furthermore, NFHS members associations should “…recognize the use of these substances as a significant health problem for students, resulting in negative effects on behavior, learning, and the total development of each individual” (para. 7). Athletic administrators should be the leaders in developing and implementing a drug pre- vention program for their athletes. The resolution of this problem will affect the health and safety of the athletes. It also provides the administrators and coaches
- 215. an opportunity to make a differ- ence in the lives of the athletes by enabling them to make wise behavioral choices about drugs. References Coakley, J. J. (2014). Sport in society: Issues and controversies (11th ed.). Boston, MA: McGraw- Hill. Education Amendments of 1972, 20 U.S.C. § 1681 et seq. Indiana Department of Education. (2014). Annual report on home schoolers in Indiana. Retrieved from http://www.idoe.gov/homeschoolers_2013-14 Minnesota High School Athletic Association. (2014). Sportsmanship violations. Retrieved from http://www.mhsaa.org/sportmanship National Federation of State High School Associations. (2014a). Average fees charged for athletics and other activities. Retrieved from http://www.nfhs.org/average_athletic_fees National Federation of State High School Associations. (2014b). Mission statement. Retrieved from http//:www.nfhs.org Sawyer, T. H., & Gimbert, T. L. (2014). Indiana LANSE (5th ed.). Terre Haute, IN: Indiana Center for Sport Education. Sawyer, T. H., & Judge, L. W. (2012). The management of fitness, physical activity, recreation, and sport. Urbana, IL: Sagamore.
- 216. SBJnet. (2014). The growth of interscholastic sports 1970–2014. Retrieved from http://www.sbj. net/The_Growth_of_Interscholastic_Sports_1970-2014 Vernonia Sch. Dist. v. Acton, 515 U.S. 646 (1995). Wong, G. M. (2010). Essentials of sports law (4th ed.). Westport, CT: Praeger. Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Factors that Influence International Fans’ Intention to Travel to the United States for Sport Tourism Chia-Chen Yu Sports fans and participants have shown increasing interest in traveling overseas for sport tourism. When sports tourists visit sports destinations, the tourists not only spend money on events and games but also bring additional revenue to local businesses. The major purpose of this study was to investigate factors that might influence international sports fans’ intention to travel to the United States for sport tourism. A survey with 49
- 217. questions was distributed to 500 college students in Taiwan. The results of exploratory factor analysis show that six factors (cost and ease of arranging travel plans, interest in professional sports, different cultural experience, interest in travel, experience of watching live sporting events, and the chance to see Asian players or famous US players in the games) are the major factors that influence international fans’ intention to travel to the United States for sport tourism. The results of this study will be helpful for sport management professionals to understand international fans’ motivations and expectations for sport tourism and further develop marketing strategies and allied activities to appeal to international fans’ interest in overseas sports tourism. Keywords: International Sport Tourism; International Fans; Taiwan; Asian Players; Motivations Introduction A study, Tourism 2020 Vision, conducted by the World Tourism
- 218. Organization (2001b) forecasted that the number of international tourist arrivals to the Americas is expected to reach 282.3 million in 2020. Among the development of international tourist arri- vals, sport tourism is one of the major developments in the past few decades that has continued growing (World Tourism Organization, 2001a). The combination of sport and tourism has become a popular choice among sports fans and tourists as they can Correspondence to: Chia-Chen Yu, Director of Sport Management Program, 210 Mitchell Hall, Department of Exercise and Sport Science, University of Wisconsin-La Crosse, La Crosse, WI 54601, USA. Email: [email protected] Journal of Sport & Tourism Vol. 15, No. 2, May 2010, pp. 111 – 137 ISSN 1477-5085 (print)/ISSN 1029-5399 (online) # 2010 Taylor & Francis DOI: 10.1080/14775085.2010.498249 participate in sporting events and enjoy other tourist activities. Not only do sports tourists take advantage of sport tourism, but governments and cities also benefit
- 219. from sport tourism in terms of generating revenue for and awareness of the commu- nity. For example, the 2007 London Grand Départ of the Tour de France brought £88 million (approximately US$129.77 million) into London’s economy – money spent by spectators, teams, and race organizers in London during the race weekend (Sport Business, 2008a). A study by Gibson et al. (2003) also indicated that football games have increased city revenue, community spirit, and travelers’ awareness of the local community. In addition to attracting domestic visitors, sport tourism has also brought visitors and international arrivals to sporting events and local communities (World Tourism Organization, 2002). The 2007 Open Golf Championship at Angus in Scotland is an example where the event is a tourist draw – only 4% of spectators were local residents, with the remainder traveling from other areas in Scotland (51%), the rest of the United
- 220. Kingdom (30%), and overseas (15%) (Sport Business, 2008b). Among various sporting events, the Olympic Games and professional sports events are the ones that draw international sport fans’ attention and interest. In particular, professional sports teams and leagues have been aggressively expanding their markets overseas, such as expanding their team recognition and brands through the sale of broadcast rights, team merchandise, and other product extensions overseas (Fay, 2003). For example, the National Basketball Association (NBA) views China as the league’s fastest-growing market. As many as seven NBA games are shown each week in China, and the league estimates 30% of the traffic on the NBA website comes from Chinese fans (Feuerherd, 2007). Teams’ and leagues’ recruitment of international players further indicates teams’ interest in the international market. When the Los Angeles Galaxy signed David Beckham, a global sports icon, in 2007, the Galaxy hoped Beckham would bring an unprecedented fan
- 221. base to and interest in the Galaxy and US soccer and further attract international soccer fans (Peters, 2007). In addition, when Yi Jianlian1 joined the Milwaukee Bucks in 2007, he was considered a link between the Bucks, the Milwaukee business community, and the vast economic promise of China and its millions of basketball fans where Yi has pro- vided great exposure to Milwaukee (Walker, 2008). Daisuke Matsuzaka, a professional baseball player from Japan, was recruited to the United States to play for the Boston Red Sox and is expected to help the Red Sox in Major League Baseball (MLB) to reach Japanese baseball fans, making inroads into a market dominated by Ichiro Suzuki’s Seattle Mariners and Hideki Matsui’s New York Yankees (Bialik & Fry, 2006). The Los Angeles Lakers’ recent signing of Chinese guard Sue Yue in August 2008 has added to the number of international players in the NBA (Xinhua News Agency, 2008). NBA international players such as Yao Ming,
- 222. Steve Nash, Tony Parker, Manu Ginobili, Pau Gasol, and Dirk Nowitzki helped the NBA become popular worldwide (Spears, 2008). Because of professional sports leagues and teams’ effort to expand their fan base and market overseas, international sports fans have been exposed to additional news and discussions about US professional sports. In addition to following favorite teams 112 C.-C. Yu and players via media, another method that has become popular among international fans is watching sport games or visiting sports facilities as an agenda in an overseas travel itinerary. Among international sports fans, Taiwanese fans have shown strong interest in the NBA and MLB (Chan, 2008) as several elite professional players (e.g., Yao Ming, Michael Jordan, Kobe Bryant, Spencer Haywood, Scottie Pippen, Donyell Marshall)
- 223. in the United States have visited Taiwan to meet sports fans. In addition, numerous baseball players from Taiwan such as Hong-Chih Kuo, Chin-Hui Tsao, Chin-Lung Hu, Chien-Ming Wang, and Yung-Chi Chen are current MLB players. In addition to following US professional sports, Taiwanese residents have demonstrated a continu- ing interest in visiting the United States; the number of Taiwanese traveling to the United States increased from 532,180 in 2002 to 587,872 in 2007 (Taiwan Tourism Bureau, 2008a). The United States remains the most popular country that Taiwanese visit, in addition to countries in Asia; in comparison, the second and third most- visited countries in Europe, Africa, and Oceania are Canada (87,161) and the Nether- lands (85,352). Lin’s (2006) study showed that Taiwanese sports fans have an especially high interest in traveling overseas for sporting events. Thus, in the early 2000, travel agents in Taiwan started to incorporate sport tourism in itineraries or packages for
- 224. overseas travel (Tang, 2003). Sport teams not only benefit from the attendance of international sports fans, but local businesses or governments also generate revenues from international sport tourists’ spending on other activities, such as visiting tourist destinations and shopping. Although professional sports teams and leagues may not consider inter- national sport tourists core consumers and target markets, the market potential of international fans from overseas exists as major sport companies (e.g., Nike and Adidas) and sport leagues and teams have been reaching out to the global market for sports broadcasts and product sales. International fans’ outbound sports tourism experience would help to establish or strengthen fans’ association with teams and players, who hope that international fans continue their interest in US sports when the tourists return to their home countries. In addition, as the sports
- 225. industry has become a global business, sport management professionals have oppor- tunities to work with international sports fans. As a result, the major purpose of this study was to investigate factors that might influence international sports fans’ inten- tion to travel to the United States for sport tourism. The results of this study will be helpful for sport management professionals to understand international fans’ motiv- ations and preferences for sport tourism in planning marketing strategies and associ- ated tourist activities. Literature Review: Theories and Studies International sports fans’ intention to travel overseas for sporting events can be attrib- uted to various factors, such as fan and attendance motivation, travel intention, fans’ association with players and teams, and interest in US sports. Yet barriers might also restrain international fans’ interest in outbound sport spectating. Journal of Sport & Tourism 113
- 226. Fan and Attendance Motivation Just as with sports fans in the United States, international sports fans’ motivation in sports spectating is to satisfy certain interests and desires. Sports fans participate in sports because they want to enjoy the excitement, entertainment, and competition inherent in sports that help fans escape stress (Branscombe & Wann, 1994; Gantz & Wenner, 1995; Lever & Wheeler, 1984; Sloan, 1989; Zillmann et al., 1989). In addition, fans are motivated by associating with the success of teams and players such that fans share the teams’ achievements (Branscombe & Wann, 1994; Sloan, 1989). The results of studies by Wann (1995) and Wann et al. (1999) on the Sport Fan Motivation Scale confirmed the factors – eustress, self-esteem, escape, entertainment, economic, aes- thetic, group affiliation, and family – to be influential motivations. Funk et al. (2002) further identified that the following factors have influenced fan motivation:
- 227. role models, excitement, drama, wholesome environment, aesthetics, entertainment value, interest in the sport, interest in team, national pride, and vicarious achievement. Similar to fan motivation, research has found factors range from social dimensions to entertainment aspects that have influenced attendance motivation. The Motivation Scale for Sport Consumption for fans’ motives of watching or attending sport events was later validated by Trail & James (2001) as some of the motives included vicarious achievement, acquisition of knowledge, aesthetics, social interaction, drama, and escape. Neale & Funk (2006) used the Sport Interest Inventory to measure the motives of spectators attending an Australian Football League game and the results show that five factors – vicarious achievement, player interest, entertainment value, drama, and socialization – are important motives for spectators attending games. Additional attendance behavior is also associated with the sports (e.g., rivalries), the
- 228. value of the ticket price and overall cost of attendance, added entertainment such as pro- motions/giveaways and in-game entertainment, and connection with family or commu- nity (Bernthal & Graham, 2003). In addition, the new development and renovation of sports ballparks and stadiums, stadium design, and services have also motivated specta- tors’ attendance at games, in particular professional sports (Wakefield & Sloan, 1995). Fans’ Association with Players and Teams Sport fandom not only attracts fans following sports but also induces fans to travel miles domestically or outbound to watch the teams and players that the fans support. In particular, international sports fans’ interest in US sports has been escalat- ing due to increasing numbers of international players playing in professional US leagues. It is now common to see players from South America and Asia play in Major and Minor League Baseball and Asian players are beginning to play in the NBA. Although international players might not be the stars on the teams, their
- 229. playing in professional sports major leagues is an honor for the fans from the players’ native countries. International sports fans’ support of their native players may be attributed to star power. Fans feel familiarity, similarity, and likeability toward players (the source-attractiveness model, McGuire, 1985; Shank, 2005) and 114 C.-C. Yu trustworthiness and expertness (the source credibility model, Charbonneau & Garland, 2006; Ohanian, 1990). International players’ positive characteristics and images attract the attention of media and fans in the players’ native countries, and, further, fans transfer their appreciation of international players to the sports, leagues, or products and brands the players endorse (the meaning transfer model, McCracken, 1989). According to the results of Bilyeu & Wann’s (2002) study of the differences between African American and European American
- 230. fan motivation, representation (e.g., people of the same background) and similarity (e.g., people that have things in common with) are also critical for fan motivation. In addition, previous studies have shown that national pride plays an important role in inducing fans’ interest, particularly Asian sports fans (e.g., Funk et al., 2002; Kim et al., 2009). Chien-Ming Wang, a native of Taiwan and a former pitcher for the Yankees, is con- sidered a celebrity in Taiwan. Because of Wang’s popularity, many Taiwanese tune in to Yankees’ games, as Wang’s starts are broadcast live, and fans can follow on computers or TV (Caldera, 2008). Through the fans’ association with their favorite players, fans in Taiwan are becoming more interested in US professional sports because Taiwanese fans want to see players from their native country playing in Major League games (Chan, 2008). Lin (2006) investigated the relationship of Taiwanese baseball sports fans’ motiv- ation, involvement, and team identification, and their intentions
- 231. to attend foreign games. The results showed that if fans have a strong affiliation for the teams they support, the fans’ tendency to travel overseas is higher. Tang (2003) also concluded that the major motivation factors for Taiwanese sports spectators to travel outbound for sport tourism are entertainment, relaxation, the experience of cultural differences and social interaction (socialization), travel choice and event/game attractiveness, favorite players or teams, self-esteem/self-fulfillment, and the chance to go abroad. General travel interest. In addition to fan and attendance motivation, general travel interest might also trigger fans’ intention to travel overseas for sports tourism. In tourism and leisure studies, scholars have used different approaches to analyze tour- ists’ motivation. Among various theories, the theory of push and pull factors has been commonly used. For example, Krippendorf (1987) pointed out that push factors induce individuals to travel because they want to get away from issues in
- 232. their daily lives and travel would help them fulfill the need for escape, recuperation, social integration, self-determination, self-realization, and broadening of the mind. In addition, tourists are motivated to travel by push factors as they want to fulfill physiological (e.g., climate and food) and psychological (social interaction and eus- tress) needs (Dann, 1977). On the other hand, the pull factors – individuals’ perceived image of destination – are critical and attract them to travel (Crompton, 1979; Dann, 1977; Iso-Ahola, 1982; Uysal & Jurowski, 1993). Push and Pull Factors The push and pull factors for sport travelers’ motivation are also found in studies of sport tourism. From the push factors, participating in sport tourism is a good way for Journal of Sport & Tourism 115 fans and participants to experience different cultures as sport, and tourism has a
- 233. similar objective, which is to help people understand different cultures and lifestyles (World Tourism Organization, 2002). As Funk et al. (2007) revealed, the factors of escape for travel benefits, social interaction, prestige, relaxation, culture experience, and cultural learning in different countries and knowledge exploration are critical for participants’ motivation in sport tourism. On the other hand, pull factors refer to the attractiveness of the destination and tan- gible destination features such as natural attractions, historical and cultural resources, architecture, hotel, transportations, special events, and entertainment opportunities (Kim & Lee, 2002; Kozak, 2002; Uysal & Hagan, 1993). The pull factors also show that the destination image of sporting tourism is another critical factor for sports tour- ists (e.g., Funk et al., 2007; Gibson et al., 2008). Kaplanidou & Vogt (2007) investigated active sport tourists’ purposes for participating in a bicycling tour, and the results of the study showed that destination image and past experience
- 234. with the destination sig- nificantly influenced participants’ intentions to revisit the destination for sport tourism activities. Thus, it is important to develop an attractive sport destination for successful sport tourism. Turco et al. (2002) suggested several significant elements to plan attractive sport tourist destinations, which should include hospitality and other characteristics such as national tourism resources (e.g., terrain, climate, geology), human-made tourism resources (e.g., historical/cultural hospitality facili- ties), human tourism resources (hosting capabilities), and communication location (e.g., market access, exploitable factor in tourism potential). Other Factors influencing Travelers’ Intention In addition to push and pull factors, a number of studies have posited that other factors also influence travelers’ intention, i.e., culture, architecture, hotels, transport, entertainment, and cost (Kozak, 2002; Laws, 1995; Sirakaya et al., 1996). The econo- metric models in tourism management confirm that tourists’
- 235. intention to travel is associated with variables such as prices of local tourist products, exchange rates, and transportation costs (Johnson & Ashworth, 1990; Papatheodorou, 2001; Witt & Martin, 1987). Different Motivation Factors according to Gender and Length of Individuals’ Trips Although individuals have similar motivations for sports attendance and tourism, research has shown that different motivations influence males and females to spectate and travel overseas. Previous studies have shown that tourists’ gender influences tourism motives as men tend to be motivated to participate in physical outdoor activi- ties/adventure and have fun while women are motivated to relax (e.g., Freysinger, 1995; Mattila et al., 2001). Meng and Uysal’s (2008) study regarding gender differences in the perceived importance of motivation in terms of Nature Tourism Destination has similar results: men put more emphasis on ‘activities and fun,’ and women consider
- 236. the ‘relaxation experience’ the more important factor. The study also revealed that 116 C.-C. Yu female respondents were more concerned about the security at the destination, being respected by others, and feeling welcome at the destination, whereas male respondents considered fun and enjoyment in travel value. Spectators’ gender differences also influence fans’ attendance motivation. Kim et al. (2008) examined spectator motives regarding mixed martial arts at a local amateur event and revealed that there were gender differences in motives. Female fans con- sidered drama and aesthetics to be important motivations while males indicated that interest in the sport, economics, and violence were significantly more important. A study by Hall & O’Mahony (2006) suggested that entertainment, back room (e.g., parking, ease of getting a seat, and stadium accessibility), and social factors are
- 237. more influential for women than for men. In addition to different motivations between genders, the length of individuals’ trips has also influenced their planning of tourist activities and preferred destinations. Fodness & Murray’s (1999) study of tourist information search behavior shows that tourists’ length of stay was significantly associated with information searches, as long-haul tourists are involved in more extensive information search. Morrison et al.’s (1997) study of destination choices of Taiwanese outbound travelers showed that travelers’ choice of destinations outside the Asia-Pacific region was positively related to the length of the trip. The results of Vogt & Stewart’s (1998) study of trip plan- ners’ information usage confirmed that travelers who stayed at their destinations for a longer time (i.e., 4 days or longer) may have spread out activities and gone sightseeing. Constraints of Fans’ Overseas Tourism Although international fans have shown interest in sport tourism, some factors might
- 238. restrain their intention in outbound travel for sport tourism. As pointed out by Huang et al. (1996), despite the development of Taiwanese traveling overseas, some obstacles have impeded progress of outbound Taiwanese tourism. Getting visas and men’s com- pulsory military service are the two common restraints. For diplomatic reasons, since the withdrawal from the United Nations in 1971, Taiwanese travelers are required to submit foreign visa applications, which can be time-consuming and costly. In addition, fans’ concerns might include long travel distances (especially traveling across continents), language barriers (Chen & Hsu, 2000), safety of destinations (Kim et al., 2005; McKercher & Hui, 2003; Tsai, 2006), unfamiliarity with the desti- nations (Wu, 1997), and travel cost (Chen & Hsu, 2000; Kim et al., 2005). Further- more, the cost of travel and economic reasons are critical factors for international sports fans to travel outbound. Lin’s (2006) study of Taiwanese fans’ intention to
- 239. travel overseas also showed that fans’ income is a significant effect on their motivation and intention to attend foreign sport games. In addition, according to the survey by the Taiwan Tourism Bureau (2008b) about Taiwanese residents’ behavior in travel in 2006, respondents indicated that the price of the trip is a major consideration when they plan for overseas travel. With the development of sport tourism and the popularity of sports among inter- national fans, it is important to understand factors that influence international sports Journal of Sport & Tourism 117 fans’ intention to travel overseas for sport tourism. According to the purposes of study and literature reviews, research questions were developed as follows. (a) What are the major factors that might influence international sports fans’ intention to travel to the United States for sporting event tourism? (b) Are there any differences regarding the
- 240. importance of major factors among international sports fans’ gender, interest in US professional sports, and number of days that they are willing to spend on sport tourism? Methodology Instrument A questionnaire was developed to investigate factors that might influence international sports fans’ intention to travel to the United States for sport tourism. The context of the questionnaire presented to respondents was a trip to the US in which the respon- dents could attend professional sport games. The questionnaire consisted of two parts with 49 questions. The first part included four questions, which collected information about respondents’ gender, interest in US professional sports, their future plan to travel to the United States, and number of days that they are willing to spend for sport tourism on a 14-day trip. The second part of the survey with 45 items asked
- 241. respondents the importance of each variable that might influence their intention to travel to the United States for sport tourism. Each question in Part Two of the survey was assessed on a five-point Likert scale, where 5 represented very high and 1 represented very low. Questions were developed from a review of the literature and previous studies to represent four subcategories: sports fan and attendance motivation, fans’ association with players and teams, general travel interest, and constraints of fans’ overseas tourism. Fourteen questions to evaluate fan and attendance motivation were devel- oped from studies of sport fan motivation (Trail & James; 2001; Wann, 1995; Wann et al., 1999). The second subcategory’s 14 questions, which investigated fans’ motiv- ations by associating with players and teams, were generated from the source-attrac- tiveness model (Shank, 2005), the meaning transfer model (McCracken, 1989), and
- 242. previous studies (e.g., Funk et al., 2002; Kim et al., 2009) regarding fans’ connection with players and teams. Items from studies by Iso-Ahola (1982), Uysal & Jurowski (1993), and Chen & Hsu (2000) were derived to reveal if respondents’ travel interest (nine questions) and constraints on overseas tourism (eight questions) would influ- ence their outbound sports tourism. The second part of the 45- item survey were listed in random order regardless of the subcategory. Ticket sales managers and executives from a selected professional team in the US Midwest were asked to offer suggestions for the questionnaire; several questions (e.g., ‘Possibility of a post-game meet and greet with a professional athlete’ and ‘Chance to be on the court after the game and interact: take photos, shoot free throws’) were added according their feedback. In addition, numerous questions were developed based on information from government reports. For example, 118 C.-C. Yu
- 243. according to the Taiwan Tourism Bureau (2008b), Taiwanese in outbound travel usually stay 10.40 nights. As a result, a hypothesis of a 14-day trip (including approxi- mately 14 – 20 hours of traveling time one way) was estimated for a question regarding the length of the entire trip from Taiwan to the United States. The questionnaire was originally developed in English because the items and ques- tions in the instrument were primarily generated from studies in, and literature review of, Western countries, as there are established theories and studies regarding fan and attendance motivation, sport tourism, and tourism motivations. The researcher then translated the English questionnaire into Chinese. To ensure the validity of the trans- lation of the research instrument between the English and Chinese versions, two selected college professors in the United States and Taiwan who specialize in sport management and are proficient in both languages were asked to
- 244. critique the trans- lation of the questionnaire. Then a second group of experts (n ¼ 2) translated the modified Chinese questionnaire into English. Finally, a graduate sport administration student who is a native English speaker was asked to evaluate the consistency and accu- racy between the original and revised English questionnaires. The researcher then modified words and finalized the Chinese questionnaire to make it more understand- able for Taiwanese respondents and accurate to the original questionnaire according to the selected experts’ suggestions. The Cronbach alpha coefficients for each subcategory (fan and attendance motivation, fans’ association with players and teams, general travel interest, and constraints on overseas tourism) are 0.86, 0.86, 0.82, and 0.73, respectively. Participants Respondents for this study were college students in various majors and years of study
- 245. who were enrolled during the 2008 academic year at five colleges and universities in Taiwan. College students were chosen for this study because of the increasing interest in professional sports and popularity of overseas travel among college students. Several studies indicated that the majority (approximately more than 50%) of on-site specta- tors for professional sporting events and loyal fans are college students who have shown strong interest in professional sports (e.g., Chen, 2005; Chen et al., 2006; Lai, 2005; Lin, 2003). In addition to fans of professional sports, approximately 930,000 college students traveled outbound in 2001 (Taiwan Tourism Bureau, 2002). The popularity of traveling overseas among college students might be attributed to stu- dents’ escalating interest in learning different languages and cultural environments, and their parents’ financial support for the trip (Chen, 2003). Thus, college students are the appropriate group of participants for this study. The researcher asked a faculty
- 246. member from each university to randomly select two to three of his or her classes, approximately a total of 100 students from each university, to participate in this survey. The selected faculty members distributed the questionnaires during their classes, including general physical activity and graduate-level sport administration classes. Participants used approximately 20 – 25 minutes to complete the survey; then the faculty collected the questionnaires. Excluding incomplete questionnaires Journal of Sport & Tourism 119 with no answers to some questions, a total of 475 useful questionnaires were collected from 500 questionnaires; the return rate for this study is 95%. Data Analysis Descriptive analysis was used to analyze respondents’ background information. Means and standard deviations were calculated to determine the importance of each variable. An independent t-test on factors was conducted to see if there
- 247. was a difference between male and female students regarding the variables that might influence their intentions regarding international sport tourism. Exploratory factor analysis was used to deter- mine the major factors that might influence international sports fans’ intention to travel to the United States for sporting event tourism. Factor loadings of 0.3 or greater were included to determine the degree to which a variable was related to the resulting factor. Six factors with eigenvalues greater than 1.0 were retained and were identified with a cumulative variance of 54.34%. After varimax rotation, the researcher renamed these six major factors based on the characteristics of the underlying variables loading to each major factor. Multivariate analysis of variance (MANOVA) was then applied to reveal differences in the importance of these six major factors among respondents depending on the degree of their interest and involvement in US pro- fessional sports and plans for future travel to the United States.
- 248. The researcher further used the Scheffe post-hoc test to determine significant differences among groups and cross-tabulation calculation to reveal greater insight into the frequency distribution of the respondents’ answers. Findings Respondents’ Involvement and Interest in US Professional Sports As demonstrated in Table 1, approximately 46% of the respondents were male and 54% were female. About 45.5% of respondents watch, read, or discuss US professional sports at least once a week. Around 23% of the respondents plan to travel to the United States within 1 to 3 years. However, 38.3% of the respondents do not plan to visit the United States within the next 6 years. About 58.9% of the respondents are willing to spend 1 – 2 whole days for sport tourism during a 14-day trip. The next favorite length of trip spent on sport tourism is 3 – 4 days (25.7%). Very few respondents (3.0%) in this study are
- 249. interested in spending 9 – 12 whole days for sport tourism on a 14-day trip. Factors that Influence International Sports Fans’ Intention to Travel to the United States for Sporting Event Tourism Table 2 shows the degree of importance for all the 45 variables that respondents con- sidered regarding sport tourism in the United States. Respondents perceived that ‘Price for the entire trip from Taiwan to the United States’ (M ¼ 4.23, SD ¼ 0.79) and the factors ‘Escape for travel benefits’ (M ¼ 4.21, SD ¼ 0.80), ‘Overall itinerary and 120 C.-C. Yu arrangement of trip’ (M ¼ 4.18, SD ¼ 0.74), ‘Acceptable days that work with the tra- veler’s schedule’ (M ¼ 4.13, SD ¼ 0.76), ‘Chance to see favorite player(s), regardless of their nationality’ (M ¼ 4.12, SD ¼ 0.89), ‘Trip companions’ (M ¼ 4.11, SD ¼ 0.87), and ‘Chance to see player(s) from Taiwan in the games’ (M ¼ 4.07, SD ¼
- 250. 0.97) are important influences on respondents’ intention to travel to the United States for sporting events. Respondents evaluated that the ‘Chance to see player(s) from China in the games’ (M ¼ 2.57, SD ¼ 1.05) and ‘Chance to see player(s) from Asia in the games’ (M ¼ 3.07, SD ¼ 0.90) were not that critical. The variable ‘Obli- gation of military service in Taiwan’ (M ¼ 2.80, SD ¼ 1.38) was evaluated by male students only; however, they did not consider it an important variable. Principal components analysis was performed to retain six factors and apply the varimax rotation (Mertler & Vannatta, 2005). After rotation, the first factor accounted for 13.2% and the second for 11.9%, the third for 8.7%, the fourth for 7.4%, the fifth for 7.3%, and the sixth for 5.8%, with a total of a cumulative percentage of variance explained of 54.338. As shown in Table 3a and b, six major factors were identified and renamed based on the characteristics of the underlying variables loading to
- 251. each major factor. Eleven variables loaded to Factor I, ‘Price and overall ease of arran- ging travel plans,’ nine variables to Factor II, ‘Interest in professional sports,’ seven Table 1 Frequency and Percentage Distribution of Respondents by Gender, Professional Sports Involvement, and Future Trip Plan to the United States Gender Gender Frequency Percent Male 218 45.9 Female 257 54.1 Respondents’ professional sports involvement Frequency Percent Watch/read/discuss US professional sports at least once a week 216 45.5 Watch/read/discuss US professional sports at least once a month 133 28.0 Watch/read/discuss US professional sports at least once a year 126 26.5 Future plan to travel to the United States Within number of years Frequency Percent 1 – 3 years 111 23.4 4 – 6 years 182 38.3 Impossible within 6 years 182 38.3 Number of days respondents are willing to spend for sport tourism during a 14-day trip Number of days Frequency Percent
- 252. 1 – 2 days 280 58.9 3 – 4 days 122 25.7 5 – 6 days 31 6.5 7 – 8 days 28 5.9 9 – 10 days 5 1.1 11 – 12 days 9 1.9 Note: N ¼ 475. Journal of Sport & Tourism 121 Table 2 Means and Standard Deviations of the Degree of Importance for Each Variable Item Mean SD 1. Price for the entire trip from Taiwan to the United States 4.23 0.79 2. Escape for travel benefits 4.21 0.80 3. Overall itinerary and arrangement of trip 4.18 0.74 4. Acceptable days that work with the traveler’s schedule 4.13 0.76 5. Chance to see favorite player(s), regardless of their nationality 4.12 0.89 6. Trip companions 4.11 0.87 7. Chance to see player(s) from Taiwan in the games 4.07 0.97 8. Length of trip (number of days for trip) 4.07 0.79 9. Convenience of finding lodging near sport facilities 4.06 0.85 10. Experience culture differences (cultural learning in different countries) 4.06 0.83 11. Chance to visit other natural tourist destinations (e.g., state parks) near sport facility
- 253. 4.02 0.82 12. Price of tickets to the games 3.96 0.94 13. Chance to visit other human-made tourist resources (e.g., historical/cultural hospitality facilities) near the sport facility 3.93 0.84 14. My interest in traveling to the United States 3.91 0.86 15. Language (e.g., understand the messages during the games) 3.90 0.95 16. Chance to visit well-recognized tourist destinations or city/state (e.g., Los Angeles, California, and New York City, New York) that are popular with Taiwanese tourists 3.90 0.88 17. My interest in sports in general 3.87 0.95 18. Team’s performance and reputation 3.82 0.90 19. Exchange rate for US dollars and Taiwanese New Dollars 3.80 0.94 20. Seating location at the games 3.77 0.87 21. My interest in professional sports (e.g., baseball or basketball) 3.76 0.97 22. Ease of getting US visa or going through security (e.g., fingerprinting upon arrival in the US) upon arrival in the United States 3.75 0.95 23. Competition and attractiveness of games 3.72 0.93 24. Experience different atmosphere of games and facilities in
- 254. the United States 3.71 0.90 25. Chance to see US professional games in general 3.69 0.92 26. My overall favorable impression of destinations (state and city) of sporting events and facilities 3.69 0.91 27. Distance and flight from Taiwan to the United States (approximately 1 day each way) 3.67 0.94 28. Possibility of a postgame meet-and-greet with a professional athlete, such as Yi Jianlian 3.64 1.00 29. Chance to have a tour of sport facilities 3.63 0.88 30. My interest in games/teams in general, regardless which teams play 3.61 0.92 31. Price of food in concessions 3.59 0.97 32. Chance to go shopping at department stores or outlet factories 3.58 0.90 33. Price of sports licensing products 3.56 0.99 34. Chance to be on the court after the game and interact: take photos, shoot free throws, etc. 3.55 1.68 35. Concern about terrorism in the United States 3.52 1.05 36. Chance to gain knowledge about US professional sports 3.52 0.91
- 255. 37. Number of facilities and games to watch 3.51 0.89 (Continued ) 122 C.-C. Yu variables to Factor III, ‘Experience different atmosphere and culture,’ six variables to Factor IV, ‘Interest in travel,’ five variables to Factor V, ‘Experience in watching live sporting events and viewing facilities,’ and five variables to Factor VI, ‘Chance to see Asian players and famous US players and coaches in the games.’ The coefficient values for these six major factors were 0.87, 0.90, 0.82, 0.81, 0.78, and 0.76, from Factor I to Factor IV, respectively. Differences Regarding the Importance of Major Factors among Fans’ Gender, Interest in US Professional Sports, and Number of Days that Tourists are Willing to Spend on Sport Tourism The results of an independent t-test on factors show that there is no significant differ-
- 256. ence between male and female students’ responses. The MANOVA test on the six major factors shows that there was no significant difference among respondents who plan to travel to the United States within a certain number of years. However, Table 4 shows that there are significant differences among respondents who have different pro- fessional sports involvement and the number of days they are willing to spend on sport tourism in the factors of ‘Interest in professional sports,’ ‘Experience different atmosphere and culture,’ ‘Experience in watching live sporting events and viewing facilities,’ and ‘Chance to see Asian players and famous US players and coaches in the games.’ The Scheffe post-hoc test further showed a difference among groups. The results of the cross-tabulation calculation (see Table 5) show that 60.2% of enthu- siastic fans (read/watch/discuss US professional sports at least once per week) feel that their interest in professional sports is a critical (important to very important) factor that influences their decision to participate in outbound travel
- 257. for sport tourism, whereas 33.08% of medium users (read/watch/discuss US professional sports at least once per month) and 16.67% of light users (read/watch/discuss US professional sports at least once per year) evaluated this factor as critical. As shown in Table 6, approximately 48.1% of enthusiastic fans consider that experiencing different atmos- phere and culture is critical while only 23% of light users think it is an important Table 2 Continued Item Mean SD 38. Recognition of the city and state for sport games and facilities (e.g., Houston in Texas and Milwaukee in Wisconsin) 3.45 0.90 39. Chance to visit tourist destinations or state/city (e.g., Milwaukee, Wisconsin) that are unfamiliar to Taiwanese tourists 3.37 0.88 40. Chance to purchase sports licensing products of professional sports teams 3.28 0.94 41. Chance to see famous US players in the games 3.23 0.96 42. Chance to see famous US coaches in the games 3.09 0.95 43. Chance to see player(s) from Asia (e.g., Japan and South
- 258. Korea) in the games 3.07 0.90 44. Obligation of military service in Taiwan (male students only) 2.80 1.38 45. Chance to see player(s) from China in the games 2.57 1.05 Note: 5 ¼ Very high to 1 ¼ Very low. Journal of Sport & Tourism 123 Table 3a Summary of Exploratory Factor Analysis Results for Important Factors of International Sport Tourism Item Factor Loadings Factor I. Price and ease of arranging travel plans (Cronbach’s a ¼ 0.87) 1. Price of food in concessions 0.732 2. Ticket price to the games 0.720 3. Price of sports licensing products 0.682 4. Language (e.g., understand the messages during the games) 0.673 5. Convenience of getting US visa or going through security (e.g., fingerprinting upon arrival in the US) upon arrival in the United States 0.643 6. Distance and flight from Taiwan to the United States (approximately 1 day each
- 259. way) 0.624 7. Price for the entire trip from Taiwan to the United States 0.543 8. Convenience of finding lodging near sport facilities 0.521 9. Exchange rate for US dollars and Taiwanese New Dollars 0.518 10. Seating location at the games 0.459 11. Concern about terrorism in the United States 0.396 Factor II. Interest in professional sports (Cronbach’s a ¼ 0.90) 1. My interest in professional sports (e.g., baseball or basketball) 0.822 2. My interest in sports in general 0.768 3. My interest in games/teams in general, regardless which teams play 0.757 4. Team’s performance and reputation 0.699 5. Competition and attractiveness of games 0.671 6. My overall favorable impression of destinations (state and city) of games and facilities 0.646 7. Chance to see favorite player(s), regardless of their nationality 0.596 8. Chance to see US professional games in general 0.589 9. Chance to gain knowledge about US professional sports 0.517 Factor III. Experience different atmosphere and culture (Cronbach’s a ¼ 0.82) 1. Chance to visit other human-made tourist resources (e.g., historical/cultural
- 260. hospitality facilities) near sport facility 0.736 2. Chance to visit other natural tourist destinations (e.g., state parks) near sport facility 0.700 3. Experience culture differences (cultural learning in different countries) 0.675 4. Experience different atmosphere of games and facilities in the United States 0.578 5. Chance to visit well-recognized tourist destinations or city/state (e.g., Los Angeles, California, and New York City, New York) that are popular with Taiwanese tourists 0.554 6. Chance to visit tourist destinations or state/city (e.g., Milwaukee, Wisconsin) that are unfamiliar to Taiwanese tourists 0.521 7. Chance to go shopping in department stores or outlet factories 0.381 Factor IV. Interest in travel (Cronbach’s a ¼ 0.81) 1. Escape for travel benefits 0.718 2. My interest in traveling to the United States 0.642 3. Acceptable days that work with the traveler’s schedule 0.521
- 261. (Continued ) 124 C.-C. Yu Table 3b Full Loadings Matrix of Exploratory Factor Analysis Results for Important Factors of International Sport Tourism? Factors Items 1 2 3 4 5 6 1. Escape for travel benefits 0.032 0.083 0.075 0.718 0.041 20.019 2. My interest in traveling to the United States 20.026 0.196 0.086 0.642 0.129 20.047 3. My overall favorable impression toward destinations (state and city) of sports games and facilities 2225 0.646 0.125 0.205 0.244 0.038 4. My interest in sports in general 0.044 0.768 0.019 0.140 0.048 20.055 5. My interest in professional sports (e.g., baseball or basketball) 20.029 0.822 0.025 0.071 0.131 20.023 6. My interest in sports games/teams in general, regardless which teams play
- 262. 0.032 0.757 0.000 0.048 0.045 0.110 7. Competition and attractiveness of games 0.165 0.671 0.119 20.005 0.107 0.270 8. Team’s performance and reputation 0.185 0.699 0.151 0.068 0.114 0.149 9. Chance to see favorite player(s), regardless of their nationality 0.139 0.596 0.132 0.246 0.128 0.244 10. Chance to see player(s) from Taiwan in the games 0.249 0.358 0.088 0.162 20.145 0.477 11. Chance to see player(s) from China in the games 0.149 20.043 0.108 20.162 0.126 0.654 (Continued ) Table 3a Continued Item Factor Loadings 4. Overall itinerary and arrangement of trip 0.516 5. Length of trip (number of days for trip) 0.510 6. Trip companions 0.497 Factor V. Experience in watching live sporting events and
- 263. viewing facilities (Cronbach’s a ¼ 0.78) 1. Possibility of a postgame meet-and-greet with a professional athlete, such as Yi Jianlian 0.612 2. Number of facilities and games to watch 0.543 3. Chance to have a tour of sport facilities 0.521 4. Chance to purchase sports licensing products of professional sports teams 0.480 5. Recognition of the city and state for sport games and facilities (e.g., Houston in Texas and Milwaukee in Wisconsin) 0.400 Factor VI. Chance to see Asian players or famous US players and coaches in the games (Cronbach’s a ¼ 0.76) 1. Chance to see player(s) from Asia (e.g., Japan and South Korea) in the games 0.808 2. Chance to see famous US players in the games 0.658 3. Chance to see player(s) from China in the games 0.654 4. Chance to see famous US coaches in the games 0.576 5. Chance to see player(s) from Taiwan in the games 0.477 Journal of Sport & Tourism 125 Table 3b Continued Factors
- 264. Items 1 2 3 4 5 6 12. Chance to see player(s) from Asia (e.g., Japan and South Korea) in the games 0.095 0.159 0.069 0.000 0.140 0.808 13. Chance to see famous US players in the games 20.038 0.379 0.135 0.049 0.247 0.658 14. Chance to see famous US coaches in the games 0.019 0.189 0.244 20.038 0.411 0.576 15. Chance to see US professional sports games in general 20.014 0.589 0.414 0.069 0.322 0.201 16. Chance to gain knowledge about US professional sports 0.032 0.517 0.450 20.058 0.398 0.105 17. Experience different atmosphere of games and facilities in the United States 0.036 0.402 0.578 20.034 0.291 0.099 18. Experience culture differences (cultural learning in different countries) 0.101 0.056 0.675 0.307 0.093 0.145
- 265. 19. Chance to visit other natural tourist destinations (e.g., state parks) around sport facility 0.150 20.058 0.700 0.372 0.021 0.208 20. Chance to visit other human-made tourist resources (e.g., historical/cultural hospitality facilities) around sport facility 0.177 20.022 0.736 0.268 20.034 0.130 21. Chance to visit well recognized and popular tourist destinations or city/state (e.g., Los Angeles, California and New York City, New York) among Taiwanese tourists 0.186 0.450 0.554 0.121 0.196 0.059 22. Chance to visit unfamiliar tourist destinations or state/city (e.g., Milwaukee, Wisconsin) among Taiwanese tourists 0.211 0.292 0.521 20.092 0.325 0.091 23. Chance to purchase sports licensing products of professional sports teams 0.105 0.329 0.424 20.203 0.480 0.057 24. Chance to go shopping in department stores or outlet factories 0.353 0.092 0.381 0.034 0.154 20.039
- 266. 25. Overall itinerary and arrangement of trip 0.374 0.130 0.396 0.516 20.169 20.009 26. Acceptable days for trip 0.439 0.130 0.308 0.521 20.169 20.043 27. Price for the entire trip from Taiwan to the United States 0.543 0.165 0.214 0.404 20.170 20.053 28. Ticket price to the games 0.720 0.302 0.193 20.053 20.032 0.044 29. Price of sports licensing products 0.682 0.203 0.197 20.153 0.164 0.041 30. Price of food in concessions 0.732 0.110 0.096 20.047 0.149 0.022 31. Language (e.g., understand the messages during the games) 0.673 0.088 0.079 0.126 0.221 0.101 32. Seating location of the games 0.459 0.252 0.062 0.193 0.423 0.014 33. Chance to have a tour of sport facilities 0.301 0.264 0.184 0.196 0.521 0.079 34. Possibility of a post-game meet and greet with a professional athlete, such as Yi Jianlian 0.175 0.314 0.079 0.201 0.612 0.170 (Continued ) 126 C.-C. Yu
- 267. factor. A total of 37.9% of enthusiastic fans feel it is important to experience watching live sporting events and viewing sports facilities in Factor V (see Table 7). However, medium (23.3%) users and light users (15.1%) considered the degree of importance for this factor as average and medium while the remaining respondents evaluated this factor as of low importance. With regard to the number of days that respondents are willing to spend for sport tourism on a 14-day trip, 96.3% of the respondents who were willing to spend 1 – 2 days felt that their interest in professional sports is a critical element. In addition, this group of respondents (1 – 2 days) had a high percentage (92.9%), indicating that ‘Experience different atmosphere and culture’ is a very impor- tant factor for their decision to travel overseas for sport tourism. However, this group of respondents (1 – 2 days) considered ‘Experience in watching live sporting events and viewing facilities’ not as critical as other groups of respondents who wanted to spend
- 268. more days on sport tourism (2 ¼ 3 – 4 days, 37.7%) and (4 ¼ 7 – 8 days, 64.3%). Discussion The results of this study showed that the factor of respondents’ interest in sports plays a critical role in their intention to travel overseas for sport tourism. This result is Table 3b Continued Factors Items 1 2 3 4 5 6 35. Chance to be on the court after the game and interact: take photos, shoot free throws, etc. 0.099 0.153 0.075 0.034 0.366 0.122 36. Number of facilities and games to watch 0.194 0.327 0.289 0.061 0.543 0.083 37. Recognition of the city and state for sport games and facilities (e.g., Houston in Texas and Milwaukee in Wisconsin) 0.190 0.220 0.181 0.106 0.400 0.183 38. Companions of trip 0.385 0.184 0.176 0.497 0.048 0.011 39. Length of trip (e.g., 13 days with travel
- 269. agent) 0.471 0.119 0.174 0.510 0.005 20.033 40. Distance and flight from Taiwan to the United States (Approximately one day each way) 0.624 20.095 0.060 0.093 0.214 0.120 41. Convenience to get US visa or go through security (e.g., finger print upon arrival to the US) upon arrival to the United States 0.643 20.105 0.020 0.211 0.156 0.218 42. Concern of terrorism in the United States 0.396 20.295 0.008 0.241 0.387 0.178 43. Convenience to find lodging around sport facilities 0.521 0.022 0.055 0.404 0.206 0.068 44. Exchange rate for US Dollars and Taiwanese New Dollars 0.518 20.220 20.010 0.294 0.281 0.109 45. Obligation of military service in Taiwan (male students only) 0.120 20.035 20.041 20.158 0.454 0.051 Journal of Sport & Tourism 127
- 270. parallel with that found by previous studies (e.g., Funk et al., 2001, 2002; Kim et al., 2008): fans’ interest in sports is a strong motive for their sport spectating, regardless of what regions the fans are from. Variables loading in this factor include fans’ interest in professional sports, games, and teams, competition of games, and the chance to see players. These findings are similar to those of Lin (2006), who pointed out that Taiwa- nese baseball fans’ team affiliation has a positive influence on their intentions to attend foreign sporting events. In addition to international sports fans’ interest in sports, one of the six major factors to motivate them to travel outbound for sport tourism is the opportunity to see players from their native countries, and other famous players and coaches in the games. Two variables – ‘Chance to see favorite player(s), regardless of their nationality’ and ‘Chance to see player(s) from Taiwan in the games’ – were evaluated as important among the 45 variables. These results might be due to
- 271. respondents’ national pride and interest in players or even a view of players as role models (Funk et al., 2001) so the respondents are interested in overseas sports tourism. The results of factor analysis also show that the opportunity to watch live sporting events and view facilities is a criti- cal factor for international sports fans to travel overseas for sport tourism. These findings are similar to results from past studies about fan motivations that the entertainment atmosphere is a major factor that attracts sporting event attendees (e.g., Snelgrove et al., 2008; Wann et al., 2008). Furthermore, Lai’s (2005) study showed that sport fans in Taiwan demonstrate a strong interest in watching Formula One (F1) races over- seas because there is no sport facility in Taiwan to host events such as F1 racing, not even in some closer countries such as Japan, Malaysia, and China. The findings also conform Table 4 Results of MANOVA and Scheffe’s Test for the Six Major Factors by Respondents’ Professional Sports Involvement and Number of Days in Sport
- 272. Tourism Professional sport involvement Scheffe post- hoc test Number of days for sport tourism on a 14-day trip Scheffe post- hoc test Factor II. Interest in professional sports F(2, 472) ¼ 68.938, p , 0.001 All F(5, 469) ¼ 10.995, p , 0.001 1 and 2, 3, 4 Factor III. Experience different atmosphere and culture F(2, 472) ¼ 11.118, p , 0.001
- 273. (1, 3) F(5, 469) ¼ 4.531, p , 0.001 1 and 3, 4 Factor V. Experience in watching live sporting events and viewing facilities F(2, 472) ¼ 29.207, p , 0.001 All F(5, 469) ¼ 9.622, p , 0.001 1 and 2, 4 Factor VI. Chance to see Asian players and famous US players and coaches in the games F(2, 472) ¼ 10.465, p , 0.001 (1,3) Note. Professional sport involvement: 1 ¼ Watch/read/discuss US professional sports at least once a week, 2 ¼ once per month, 3 ¼ once per year; Number of days for sport tourism in a 14-day trip: 1 ¼ 1 – 2 days, 2 ¼ 3 – 4 days, 3 ¼ 5 – 6 days, 4 ¼ 7 – 8 days, 5 ¼ 9 – 10 days, 6 ¼ 11 – 12 days
- 274. 128 C.-C. Yu to those of previous studies that sport fans might be more interested in traveling overseas especially if they have the opportunities to see players, coaches, games, facilities, and events that they do not have in their native countries. As Delpy- Neirotti et al. (2001) suggested, it is worthwhile for sport marketers and sport teams to attract fans who might not have similar sport facilities in their native countries. The results of this study also show that, in addition to respondents’ interest in sports, their interest in traveling is a major factor in their intention to participate in international sport tourism. They rated ‘escape for travel benefits’ and ‘trip compa- nions’ as important criteria for their decision to participate in international sport tourism. Variables loading in this factor from the factor analysis include ‘My interest in traveling to the United States,’ ‘Escape for travel benefits,’ ‘trip companions,’ etc.
- 275. Similar to individuals’ motivations in tourism, sports fans’ interest in traveling for sporting events can be attributed to push and pull factors. These findings confirm pre- vious studies (e.g., Dann, 1977; Krippendorf, 1987; Uysal & Jurowski, 1993) that the theory of push and pull factors also plays a critical role in inducing respondents’ inten- tion to travel for outbound sports tourism. The World Tourism Organization (2002) suggested that major sporting events should be planned as large tourism events because they have been included in the supply of tourism products at numerous Table 5 Cross Tabulation of Interest in Professional Sports by Fans’ Involvement in US Professional Sports Importance of Factor II interest in professional sports US professional sports involvement read/ watch/discuss US professional sports once/week once/month once/year Total Very High Count 12 1 0 13 % within Factor II 92.3% 7.7% 0% 100%
- 276. % within Involvement 5.6% .8% 0% 2.7% High Count 118 43 21 182 % within Factor II 64.8% 64.8% 64.8% 64.8% % within Involvement 54.6% 32.6% 16.7% 2.7% Average Count 81 79 72 232 % within Factor II 34.9% 34.1% 31.0% 100% % within Involvement 37.6% 59.5% 57.0% 48.8% Low Count 4 8 29 41 % within Factor II 9.8% 19.5% 70.7% 100% % within Involvement 1.9% 6.1% 23.2% 8.6% Very Low Count 1 2 4 7 % within Factor II 14.3% 28.6% 57.1% 100% % within Involvement .05% 1.6% 3.2% 1.5% Total Count 216 133 126 475 % within Factor II 45.5% 28% 26.5% 100% % within Involvement 100% 100% 100% 100% Note: N ¼ 475. Journal of Sport & Tourism 129 tourism destinations, either as specific value-added offerings or as principal activities in themselves. The findings from the factor analysis also show that price and the overall ease of
- 277. arranging travel plans are critical when participants consider outbound sport tourism. Variables loading in this factor include ‘price for trip from Taiwan to the United States,’ ‘ticket,’ ‘other expenses,’ and the ‘overall itinerary and arrangement of trip from Taiwan to the United States.’ This finding was found to be similar to pre- vious studies. Lin (2006) indicated that economic reasons had a significant effect on Taiwanese sports fans’ motivation and intention to attend foreign sporting events. Moreover, as Nogawa et al. (1996, p. 49) indicated, although ‘sport tourists have the potential to become active tourists in terms of touristic activities and spending pat- terns. Their limited touristic activities were due to time constraints and economic reasons rather than an inherent lack of interest and motivation’. Therefore, the results of this study and previous studies have shown the importance of economic reasons in international sport fans’ decisions to participate in outbound sport tourism.
- 278. The variables of ‘Overall itinerary and arrangement of trip’ and ‘Acceptable days that work with the traveler’s schedule’ were evaluated as important by Taiwanese sport fans. As there are many destinations for sport tourists to choose from, Table 6 Cross Tabulation of Experience of Different Atmosphere and Culture through Fans’ Involvement in US Professional Sports Importance of Factor III experience different atmosphere and culture US professional sports involvement read/ watch/discuss US professional sports once/week once/month once/year Total Very High Count 10 2 1 13 % within Factor III 76.9% 15.4% 7.7% 100% % within Involvement 4.6% 1.5% 0.8% 2.7% High Count 94 54 28 176 % within Factor III 53.4% 30.7% 15.9% 100% % within Involvement 43.5% 40.6% 22.2% 37.1% Average Count 103 69 85 257 % within Factor III 40.1% 26.8% 33.1% 100% % within Involvement 47.7% 51.9% 67.5% 54.1% Low Count 8 7 12 27 % within Factor III 29.6% 25.9% 44.4% 100%
- 279. % within Involvement 3.7% 5.3% 9.5% 5.7% Very Low Count 1 1 0 2 % within Factor III 50.0% 50.0% 0% 100% % within Involvement 0.5% 0.8% 0% 0.4% Total Count 216 133 126 475 % within Factor III 45.5% 28% 26.5% 100% % within Involvement 100% 100% 100% 100% Note: N ¼ 475. 130 C.-C. Yu respondents also considered the ease of arranging travel plans as a critical factor. Com- bined with the result of the economic factor, the possible reason for this result might be that sport fans want to get the best out of the trip for the expenses they pay. They want convenience and to minimize hassle in their trip arrangements. As Irwin & Sandler (1998) suggested, tourism agencies and allied hosting organizations should work closely with sport organizations involved to actively market the event and present related information about the events and destinations to sport tourists.
- 280. In regard to trip arrangements, the findings showed that the variable of ‘Length of trip’ was evaluated as important among respondents. Furthermore, the participants in this study indicated that they preferred to spend a shorter period of time (e.g., 1 – 3 days) on sport tourism for a 14-day trip. The results might be because the respondents are also interested in participating in other activities while they travel in the United States. The results of the factor analysis further confirm the possibility as one of the major six factors to motivate respondents’ interest in traveling overseas for sport tourism to ‘Experience different atmosphere and culture’ where they get the chance to visit other tourist destinations (e.g., historical/cultural hospitality facilities, state parks, shopping malls, and other tourist destinations). Previous studies (e.g., Wu, Table 7 Cross Tabulation of Experience in Watching Live Sporting Events and Viewing Facilities through Fans’ Involvement in US Professional Sports Importance of Factor V experience in
- 281. watching live sporting events and viewing facilities US professional sports involvement read/ watch/discuss US professional sports once/week once/month once/year Total Very High Count 10 2 0 12 % within Factor V 83.3% 16.7% 0% 100% % within Involvement 4.6% 1.5% 0% 2.5% High Count 72 36 19 127 % within Factor V 56.7% 28.3% 15% 100% % within Involvement 33.3% 27.1% 15.1% 26.7% Average Count 119 73 71 263 % within Factor V 45.2% 27.8% 27% 100% % within Involvement 55.1% 54.9% 56.3% 55.4% Low Count 14 20 32 66 % within Factor V 21.2% 30.3% 48.5% 100% % within Involvement 6.5% 15.0% 25.4% 13.9% Very Low Count 1 2 4 7 % within Factor V 14.3% 28.6% 57.1% 100% % within Involvement 0.5% 1.5% 3.2% 1.5% Total Count 216 133 126 475 % within Factor V 45.5% 28.0% 26.5% 100% % within Involvement 100% 100% 100% 100% Note: N ¼ 475. Journal of Sport & Tourism 131
- 282. 1993; Chuang, 2006; Delpy-Neirotti et al., 2001; Wu, 1996) support these findings. For example, Chinese tourists consider that the experience of different cultural and his- torical resources is an important attribute of their overseas destinations (Kim et al., 2005). Several studies (e.g., Chen, 2008; Chuang, 2006) showed that Taiwanese tourists also want to get involved in experiencing different cultures and sightseeing, visiting historical sites, shopping, and purchasing souvenirs when traveling overseas. Tang’s (2003) study of major factors for Taiwanese sports fans to travel overseas for sport tourism confirmed that a critical factor is participating in sport- tourism-allied activi- ties and arrangement. A study by Delpy-Neirotti et al. (2001) also confirmed that several attributes that attracted fans to attend the 1996 Olympic Games were cultural experience, historical significance, and international atmosphere. Kim & Chalip’s (2004) study regarding US soccer club members’ motives,
- 283. interest, and constraints to travel to the World Cup also shows that learning about the host country and socia- lization were attractive factors for fans to travel to the event. Thus, as Gibson, et al. (2003) indicated, sport excursionists and sport tourists have a tendency to engage in traditional tourist behaviors while attending away games. The findings in this study suggest that sport organizations should work closely with local governments and businesses to present tourist information and packages for international sports fans to visit surrounding and nearby tourist destinations and activities. In regard to the difference among fans’ involvement in US professional sports and the number of days they want to spend on sport tourism, the MANOVA and the Scheffe post- hoc test further revealed significant differences among groups regarding the importance of the factors that motivate the respondents to participate in overseas sport tourism. The results of the cross-tabulation calculation further indicated that
- 284. the interest in pro- fessional sports is a very critical factor for those who are highly involved in US pro- fessional sports. As to the different number of days respondents want to spend on sport tourism, respondents who wanted to spend 1 – 2 days on sport tourism felt that ‘experiencing different atmosphere and culture’ is an important to very important factor. On the other hand, respondents who wanted to spend more days on sport tourism consider that the chance to ‘experience in watching live sporting events and viewing facilities’ is more important than other factors. The result here further suggests that sport marketers use different promotion strategies to prepare packages for sport tourists who have different team involvement and interest in professional sports. The arrangement for international sports fans who want to stay a shorter period of time in sport tourism should focus on other tourist activities and destinations. However, for fans who want to spend more days on sport tourism, the focus
- 285. should be on arranging more live games and activities, such as viewing the facilities and meeting players. Conclusion, Suggestions, Limitations, and Future Studies As the World Tourism Organization (2001a) indicated, the number of people traveling will continue to boom in the 21st century. In addition to the development of sport tourism in the United States, traveling overseas for sport tourism, in particular pro- fessional sports and mega-events, has also become popular with international sport 132 C.-C. Yu fans. Thus, it is important to understand the factors that might influence international sports fans’ intention in traveling outbound for sport tourism. The results of this study show that factors related to fans’ interest in professional sports and travel have played important roles in their intention to travel overseas for sport tourism. Fans with great interest in US professional sports further signifi-
- 286. cantly influence their intention to travel to the United States for sport tourism because they like the opportunities to see players from their native countries or other famous players playing in the games. In addition, the opportunity to see live games and view facilities that fans do not have in their native country is also critical for them. The results further suggest that sport marketers can first focus on inter- national sports fans (e.g., teams’ international fans clubs) who are enthusiastic in pro- fessional sports because enthusiastic fans’ interest in sport really motivates them to travel overseas for sport tourism. This study also shows that most respondents are interested in spending 1 – 2 days of a 14-day trip for sport tourism, and the major factor that attracts their participation is the chance to experience a different atmosphere and culture. On the other hand, respondents who want to spend more days on sport tourism consider the chance to watch live sporting
- 287. events, view facilities, and participate in related activities during the games critical. Given that sport tourists from different countries and with interests in different sports might have different expectations and arrangements for trip itineraries, the findings suggest that sport marketers and affiliated organizations such as travel agents need to determine whether their service offerings appeal to international sport tourists. For example, the findings of Rosenbaum & Spears’ (2006) study revealed that Japanese tourists are inter- ested in engaging in a range of shopping activities. As a result, sport marketers might want to design shopping activities or provide more shopping information for Japanese fans. While working with sport tourists who want to spend a short time on sport tourism, sport marketers might want to focus on providing information to such fans about cul- tural experiences or other well-recognized, popular tourist destinations. With regard to fans who are willing to spend more days on a sport tourism trip, sport marketers
- 288. ought to incorporate activities such as a post-game meet-and- greet with a professional athlete, a tour of sport facilities, or purchases of sports licensing products. The results of this study provide sport marketers with information on developing sport tourism for international sport fans. However, the limitations of this study are that only respondents from Taiwan were chosen for this study, and thus, the results cannot represent all international fans. In addition, college students were the respon- dents for this study as most college students may have to rely on parents’ financial support for outbound trips. For future studies, a comparison among respondents from different countries and age groups would be helpful for research about inter- national sport tourism. Note [1] In this paper, several international players from Asia were included to illustrate examples of sport tourism and globalization. In East Asia, an individual’s last name comes first followed
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- 300. Witt, S.F., & Martin, C.A. (1987). Econometric models for forecasting international tourism demand. Journal of Travel Research, 25(3), 23–30. World Tourism Organization (2001a). Tourism 2020 vision – global forecast and profiles of market segments. Retrieved from http://pub.unwto.org World Tourism Organization (2001b). Tourism 2020 vision – Tourism 2020 vision: Americas. Retrieved from http://pub.unwto.org World Tourism Organization (2002). Sport and tourism – introductory report. Retrieved from http://pub.unwto.org Wu, D.H. (1997). The use of stated preference model in travel itinerary choice. Unpublished master’s thesis, Cultural University, Taipei, Taiwan. Wu, K.S. (1993). Travel market segmentation and consumer behaviour analysis. Unpublished Master’s thesis, National Central University, Taipei, Taiwan. Xinhua News Agency (2008). Los Angeles Lakers sign Chinese guard Sun Yue officially. Xinhua News Agency, August. Retrieved from http://www.proquest.com Zillmann, D., Bryant, J., & Sapolsky, B.S. (1989). Enjoyment from sports spectatorship. In J.H. Gold- stein (Ed.), Sports, games, and play: social and psychological viewpoints (2nd ed.), pp. 241–278. Hillsdale, NJ: Erlbaum. Journal of Sport & Tourism 137
- 301. http://pub.unwto.org http://pub.unwto.org http://pub.unwto.org http://www.proquest.com Copyright of Journal of Sport Tourism is the property of Routledge and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. 2 7 9 2 3 sp o _ 2 0 -1 S h
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- 303. C M Y K FOURNIER.DOC (DO NOT DELETE) 12/23/2009 3:24:54 PM LABOR RELATIONS IN THE NATIONAL HOCKEY LEAGUE: A MODEL OF TRANSNATIONAL COLLECTIVE BARGAINING? MATHIEU FOURNIER* DOMINIC ROUX** I. INTRODUCTION Professional sports leagues make up a world of their own in which the best athletes, employed by various teams, display their talents before thousands of spectators. The National Hockey League (NHL) is undoubtedly the most popular professional sports league in Canada. The NHL is composed of thirty teams, six in Canada and twenty-four in the United States1 that compete every year for the Stanley Cup, the archetypal dream of every professional hockey player. Since it was created in 1917,2 the NHL has grown into an industry that generates billions of dollars in revenues, which are shared by a handful of players and franchise owners across North America.
- 304. Given the billions of dollars involved from revenues generated by spectator ticket sales, television rights, and the sale of related products, the * Mathieu Fournier is a lawyer in the province of Quebec. ** Dominic Roux is a professor in the Faculty of Law at Université Laval and a researcher at the Inter-University Research Centre on Globalization and Work (CRIMT). Research for this article was supported by a Social Sciences and Humanities Research Council of Canada (SSHRC) grant under the research project entitled “Legal Pluralism and Labour Law” led by professor Michel Coutu at Université de Montréal. We would like to offer our sincere thanks to Daniel Dumais, a lawyer at Heenan Blaikie Aubut, as well as Professor Pierre Verge, from the Faculty of Law at Université Laval, for having so generously agreed to review a preliminary version of our article. The opinions put forward in this article are those of its two authors only and do not in any way represent the views of McCarthy Tétrault LLP. A French version of this text was initially published in Québec under the following reference: Mathieu Fournier et Dominic Roux, Les Relations de Travail dans la Ligue Nationale de Hockey : un Modèle de Négociation Collective Transnationale?, 49 LES CAHIERS DE DROIT 481 (2008). 1. Nat’l Hockey League (NHL), Teams, NHL.COM, http://www.nhl.com/ice/teams/.htm (last visited Jan. 20, 2008). 2. NHL, Hockey for Dummies, NHL.COM, Sept. 20, 2006,
- 306. 0 1 /0 8 /2 0 1 0 1 0 :2 3 :5 9 27923 spo_20-1 Sheet No. 81 Side B 01/08/2010 10:23:59 C M Y K FOURNIER.DOC (DO NOT DELETE) 12/23/2009 3:24:54 PM 148 M A R Q U E T T E S P O R T S L A W R E V I E W [Vol. 20:1 to deficit. NHL is now considered a major industry in which the players and the owners compete for the largest market share. On the one hand, the
- 307. owners have a legitimate interest in making sure their teams remain profitable, and if that proves to be impossible, to decide, in some cases, to move their franchises to more lucrative markets or to sell to potential investors.3 On the other hand, the players’ desire to secure the best possible annual salary is just as legitimate, especially given that their careers are relatively short.4 To this end, they are constantly seeking new ways to negotiate, to sell themselves more effectively, and to ensure that the contracts they enter into are lucrative.5 Conversely, the owners seek ways to increase their savings when it comes to player salaries, with the goal of increasing their profit margins, or at the very least, avoid going in It was in the context of this ideological and economic confrontation that a labor relations system was gradually and autonomously put in place; a system that is quite novel, since it was set up outside of existing labor laws. This system reached its full maturity in 2005 when the Collective Bargaining Agreement (CBA)6 came into effect following negotiations between the NHL and the National Hockey League Players’ Association (NHLPA). From the mid-1990s, labor relations between the two parties had been rather strained, leading to the first strike in the history of professional hockey
- 308. in 1992, and to the first lockout in 1994-1995.7 This was followed by a second lockout in 2004-2005, this time leading to the cancellation of the entire hockey season, including the playoffs, a first in the history of professional sports in North America.8 This second lockout led to the signing of the CBA. This sector-based collective agreement, which applies across North America, unilaterally stipulates the great majority of working conditions for all NHL players, regardless of the team for which they play. Moreover, it directly regulates the negotiations of individual employment contracts between players and teams by imposing a whole set of standards covering various aspects of the employment relationship.9 3. Melanie Aubut, When Negotiations Fail: An Analysis of Salary Arbitration and Salary Cap Systems, 10 SPORTS LAW. J. 189, 190 (2003). 4. Id. 5. Id. 6. See generally NATIONAL HOCKEY LEAGUE, COLLECTIVE BARGAINING AGREEMENT BETWEEN THE NHL AND THE NHLPA (2005), available at http://www.nhlpa.com/About-Us/CBA/ [hereinafter CBA]. 7. Aubut, supra note 3, at 194. 8. See generally Trois Mois de Lock-Out en 1994-1995,
- 309. RADIO-CANADA.CA, http://archives. radio-canada.ca/sports/hockey/clips/9066/ (last visited Nov. 1, 2009). 9. See generally CBA, supra note 6. 2 7 9 2 3 sp o _ 2 0 -1 S h e e t N o . 8 2 S id
- 310. e A 0 1 /0 8 /2 0 1 0 1 0 :2 3 :5 9 27923 spo_20-1 Sheet No. 82 Side A 01/08/2010 10:23:59 C M Y K FOURNIER.DOC (DO NOT DELETE) 12/23/2009 3:24:54 PM 2009] L A B O R R E L A T I O N S I N T H E N H L 149 Beyond the curious fact that a team—the employer—has the right to trade one of its own players—the employee—to another competing
- 311. team without this player having the right to oppose this decision,10 the system that has been put in place is certainly of relevance to anyone with an interest in the theory of labor law and the fundamental challenges it presently faces. II. QUEBEC LABOR LAW It should be noted that, historically, labor law, in particular that which is applied in Quebec, was built on the basis of two distinct but interrelated sets of rules.11 The first set, which mainly emerged in 1925, is characterized by direct state intervention: that is to say that minimum working conditions began at that time to be imposed for employees tied to their employer by an employment contract. For example, the Act Respecting Labour Standards, which is applied in particular to any employer doing business in Quebec, stipulates the protection that will be provided to employees: minimum wage, maximum working hours, annual leave, notice of termination, etc., making it clear that these are minimum standards and that they are of public order.12 The second set of rules is based on the principle of the “collective autonomy” of the parties in an employment relationship: this refers to the collective system of labor relations established in Quebec in 1944.13 In establishing this system, the legislature was acknowledging a practice which
- 312. already existed in several workplaces; that is, employees were forming associations, and through their unions, collectively bargaining to establish the details of collective agreements, in the case where the employer freely accepted to enter into such a bargaining process, or did so under constraint, following pressure tactics that were effectively exerted by the employees.14 This system is characterized by some specific components, which are now consecrated in the Quebec Labour Code.15 First, employees, by majority vote, can choose a representative—the union—that can be “certified” to become their exclusive representative with regard to all aspects covered by the negotiation, application, and 10. Except in the case where a player’s employment contract includes a non-trade clause. Id. at art. 11.8. 11. FERNAND MORIN ET AL., LE DROIT DE L’EMPLOI AU QUÉBEC 77 (3d ed. 2006); PIERRE VERGE ET AL., LE DROIT DU TRAVAIL PAR SES SOURCES 29 (Editions Thémis 2006). 12. Act Respecting Labour Standards, R.S.Q., ch. N.1-1, § 93 (2009). 13. See Quebec Leads Again, THE SHAWINIGAN STANDARD, Mar. 1, 1944, at 2. 14. See id.
- 313. 15. See Quebec Labour Code, R.S.Q., ch. C-27 (2009). 2 7 9 2 3 sp o _ 2 0 -1 S h e e t N o . 8 2 S id e B 0
- 314. 1 /0 8 /2 0 1 0 1 0 :2 3 :5 9 27923 spo_20-1 Sheet No. 82 Side B 01/08/2010 10:23:59 C M Y K FOURNIER.DOC (DO NOT DELETE) 12/23/2009 3:24:54 PM 150 M A R Q U E T T E S P O R T S L A W R E V I E W [Vol. 20:1 administration of the collective agreement;16 in such a case, the parties will be under the obligation to negotiate, diligently and in good faith, the conditions of employment of employees forming a group within a given enterprise.17 Once
- 315. it has been concluded, the collective agreement sets out the conditions of employment that will apply to all present and future employees included in the group concerned, as well as to the employer, subject to public order.18 Since the right to strike and to a lockout can only be exercised during the negotiation of the initial collective agreement or when this agreement comes up for renewal, it follows that these pressure tactics remain prohibited during the period of the collective agreement.19 Lastly, arbitration is the exclusive and compulsory means of settling grievances relating to the interpretation and application of the collective agreement; consequently, the courts of law are excluded from this adjudicating role.20 These initial observations reveal the limitations of labor laws, which are essentially applicable at the national, or even in the case of Canada, provincial level. Such territoriality means that, with few exceptions,21 such laws are designed to apply at the local level only.22 The transnational dimension of the employer’s activities and of labor relations with employees is therefore not addressed. For example, the collective system of labor relations is binding at the level of a specified employer’s enterprise. Certification is granted to one association only with respect to a group of employees under one employer or
- 316. at a firm, branch, or department coming under this employer.23 Multi- employer certification is therefore prohibited. Moreover, only one collective agreement governs the conditions of employment for this group of employees.24 In this era of trade globalization and internationalization, in which transnational firms have become major players,25 the labor relations system that has been established in the NHL presents a very interesting model of transnational union representation and collective bargaining. This Article aims to sketch only a broad outline of the main characteristics of this system, which 16. §§ 21, 47.2, 141. 17. § 53. 18. §§ 62, 67. 19. §§ 106, 107. 20. §§ 100, 101. 21. Act Respecting Labour Standards, ch. II. 22. PIERRE VERGE & SOPHIE DUFOUR, CONFIGURATION DIVERSIFIÉE DE L’ENTREPRISE ET DROIT DU TRAVAIL 107 (2003). 23. Quebec Labour Code § 21. 24. § 67. 25. BOB HEPPLE, LABOR LAWS AND GLOBAL TRADE 6 (2005).
- 318. 8 /2 0 1 0 1 0 :2 3 :5 9 27923 spo_20-1 Sheet No. 83 Side A 01/08/2010 10:23:59 C M Y K FOURNIER.DOC (DO NOT DELETE) 12/23/2009 3:24:54 PM 2009] L A B O R R E L A T I O N S I N T H E N H L 151 has made it possible to go beyond the inherent territoriality of labor law, whether state-based or conventional, and the inherent limitations of its effectiveness. Moreover, this system indisputably has transnational and multi- employer normative import. Lastly, the binding effect and enforceability of its rules are ensured by an arbitration mechanism binding the parties.
- 319. In addition, in regards to the theory of labor law, the system described here involves many pertinent aspects worth reflecting upon. The system is, first and foremost, a private initiative and is strictly contractual in nature. It is essentially based on mutual will, as was typically the case, and will be seen as this Article examines the era that preceded its adoption, starting in 1944, of the laws that introduced collective labor relations systems in Canada. Thus, it fits neatly into a “collective autonomy” approach,26 at least in the sense intended by the first major labor law theorists; that is, first, a group of workers demanding better working conditions from their employer, and then, to legal standards governing labor that are applicable to a given community, such as a factory, plant, firm, or industry developed through “collective bargaining” and set out in a “collective agreement” that then becomes “law” for the parties concerned.27 However, it is also possible to see in this system an example of “legal pluralism:”28 having been constructed, developed, and sanctioned independently from the state, its norms and their effective implementation are situated, definitively and almost exclusively, outside of state- based labor laws.29 That said, this system involves two levels of negotiation. Collective labor
- 320. relations take place at the sectoral level. The collective negotiation of working conditions is definitely centralized, since it involves representatives of all the parties concerned, that is, the team owners and NHL directors, as well as all of the hockey players employed by any of these teams. The CBA, signed in 2005 as a result of this process, standardizes some working conditions for players 26. PIERRE VERGE & GUYLAINE VALLEE, UN DROIT DU TRAVAIL? ESSAI SUR LA SPÉCIFICITÉ DU DROIT DU TRAVAIL 25-30 (1997). 27. Hugo Sinzheimer, La théorie des sources et le droit ouvrier, LE PROBLÈME DES SOURCES EN DROIT POSITIF, 1934, at 73; see generally GEORGES GURVITH, LE TEMPS PRÉSENT ET L’IDÉE DE DROIT SOCIAL (1931); “Pensées allemande et européenne.” Ulrich Zachert, La légitimité des rapports juridiques de travail. À propos de la conception de la légitimité chez Max Weber et Hugo Sinzheimer, LA LÉGITIMITÉ DE L’ÊTAT ET DU DROIT. AUTOUR DE MAX WEBER 306 (Michel Coutu & Guy Rocher eds., 2005). 28. Guylaine Valée, Le droit du travail comme lieu de pluralisme juridique, in CÉLINE SAINT- PIERRE & JEAN-PHILIPPE WARREN, SOCIOLOGIE ET SOCIÉTÉ QUÉBÉCOISE: PRÉSENCES DE GUY ROCHER 241 (Céline Saint-Pierre & Jean-Philippe Warren eds., 2006). 29. Id.; see generally Harry Arthurs, Labor Law Without the State?, 46 U. TORONTO L.J. 1
- 322. 1 /0 8 /2 0 1 0 1 0 :2 3 :5 9 27923 spo_20-1 Sheet No. 83 Side B 01/08/2010 10:23:59 C M Y K FOURNIER.DOC (DO NOT DELETE) 12/23/2009 3:24:54 PM 152 M A R Q U E T T E S P O R T S L A W R E V I E W [Vol. 20:1 across the NHL.30 However, above all, it includes an innovative mechanism for determining the salary that each team can pay its players, that is, a salary cap.31 This point will be elaborated on further in this Article. 32
- 323. As regards individual labor relations, these take place at the local level, that is, at the level of the firm. Although, indeed, the CBA significantly regulates the negotiation of the employment contract between the player and the team, this negotiation remains decentralized and individual, taking place between these two parties alone. If the parties reach a deadlock and if the object of the negotiation involves determining the salary to be paid to the player, the parties can, under certain circumstances, go to salary arbitration, according to a sophisticated procedure that will be analyzed in detail further on. The same is true for grievances concerning the interpretation or application of the collective agreement or the individual employment contract.33 III. COLLECTIVE LABOR RELATIONS IN THE NATIONAL HOCKEY LEAGUE The labor relations system that the NHL set up involves a centralized multi-employer system for negotiating working conditions across North America.34 This collective bargaining process resulted in the signing of a new collective agreement in 2005, which was intended, on the one hand, to standardize some working conditions across the NHL, and on the other hand,
- 324. to harmonize the salary paid to players by instituting a salary cap.35 A. Collective Bargaining of Working Conditions: A Centralized Multi- Employer Process at the North American Level. The main area of activity of the NHL involves producing and marketing sports competitions engaged in by the NHL’s teams. The preamble to the 2005 CBA states that the NHL is a “joint venture36 organized as a not-for- profit unincorporated association . . . which is recognized as the sole and 30. See generally CBA, supra note 6. 31. Id. at art. 42. 32. The CBA’s innovative mechanism for determining the salary cap will be generally discussed infra Part III. 33. Arbitration for both salary disagreements and grievances will be discussed infra Part IV. 34. The system for negotiating working conditions will be discussed infra Part IV.A. 35. The salary cap will be discussed infra Part IV.B. 36. A joint venture is “a business undertaking by two or more persons engaged in a single defined project. The necessary elements are: (1) an express or implied agreement; (2) a common purpose that the group intends to carry out; (3) shared profits and losses; and (4) each member’s equal voice in controlling the project.” BLACK’S LAW DICTIONARY 856 (8th ed. 2004).
- 326. 1 /0 8 /2 0 1 0 1 0 :2 3 :5 9 27923 spo_20-1 Sheet No. 84 Side A 01/08/2010 10:23:59 C M Y K FOURNIER.DOC (DO NOT DELETE) 12/23/2009 3:24:54 PM 2009] L A B O R R E L A T I O N S I N T H E N H L 153 be relocated.42 exclusive bargaining representative of the present and future Clubs of the NHL . . . .”37 Thus, the NHL is a common legal entity that the team owners created in order to set up a professional hockey league. It is also, according to
- 327. this definition, the exclusive representative of its present and future teams for the purposes of collective labor negotiations with the NHLPA, and as such, it closely resembles an employers’ association as understood in Quebec labor law.38 In this respect, however, it should be pointed out that each individual team remains the real employer of its players and that the ultimate power, when it comes to negotiating, rests in the hands of the teams. Lastly, having its head office in New York City, the NHL is directed and supervised by a board of governors, made up of one member from each team.39 The NHL grants franchises to team owners, bestowing upon them the privilege of joining the other teams that make up the League.40 The board of governors decides to whom a franchise should be granted to and at what price, as well as, when the case arises, whether a franchise can be sold or relocated.41 The NHL also has the power to withdraw a franchise from its owner if he does not respect his contractual obligations, violates NHL rules, or is headed for bankruptcy. In this case, the NHL then decides to whom the franchise can be sold to and where it can The NHLPA represents all NHL players.43 Its headquarters are in Toronto and, in its present form, the NHLPA dates back to June 1967.44 It all
- 328. began with a resolution by player representatives from the six original teams who elected a Toronto Maple Leafs player, Bob Pulford, as the NHLPA’s president, and appointed Alan Eagleson, an influential player agent at the time, as its executive director.41 According to the archives, on Eagleson’s advice, 37. CBA, supra note 6, at pmbl. 38. “[E]mployers’ association: a group organization of employers having as its objects the study and safeguarding of the economic interests of its members, and particularly assistance in the negotiation and application of collective agreements.” Quebec Labour Code § 1(c). 39. National Hockey League, FUNDINGUNIVERSE.COM, http://www.fundinguniverse.com/ company-histories/National-Hockey-League-Company- History.html (last visited Oct. 27, 2009). 40. GIL STEIN, POWER PLAYS: AN INSIDE LOOK AT THE BIG BUSINESS OF THE NATIONAL HOCKEY LEAGUE 37 (1997). 41. Id. 42. Id. 43. NHL Players Ass’n (NHLPA), About the NHLPA, NHLPA.COM, http://www.nhlpa.com/ About-Us (last visited Jan. 20, 2008) [hereinafter NHLPA]. 44. Id. 41. Boston: Ed Johnston; Chicago: Pierre Pilote; Detroit: Norm
- 329. Ullman; Montreal: Bobby Rousseau and Jean-Claude Tremblay; New York: Rod Gilbert, Harry Howell and Bob Nevin; Toronto: Bob Pulford. Heather Engel, History of NHLPA Executive Directors, SUITE101.COM, Aug. 31, 2009, http://national-hockey-league- nhl.suite101.com/article/ 2 7 9 2 3 sp o _ 2 0 -1 S h e e t N o . 8 4 S
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- 331. Pulford delivered an ultimatum to team owners at a meeting, declaring that if they refused to recognize the new NHLPA, the players would join the powerful Teamsters Union and seek certification under Canadian labor laws.45 The owners were obviously against this proposal, but as pointed out by one observer, the “notorious Teamsters Union was beginning to cause some rumblings with the league, [so] Eagleson seemed to be the lesser of two evils.”46 Consequently, the NHLPA was recognized by the team owners and thus gained its present status as, to use the words of the CBA itself, “the sole and exclusive bargaining representative of the present and future Players in the NHL.”47 It is interesting to note that the parties appear to have chosen a United States law, the National Labor Relations Act (NLRA),48 to govern their labor relations.49 The United States Congress adopted this law in accordance with its authority to govern trade between states, as set out in the United States Constitution.50 A National Labor Relations Board decision51 established that the NLRA has jurisdiction over and can be applied to professional sports leagues in the United States, including the NHL.52 By recognizing the principle of freedom of association,53 the NLRA not only
- 332. allows players to form their own association and negotiate their working conditions collectively, but also implicitly, to exercise the right to strike, since it specifies that they can engage in other concerted activities for the purpose of collective bargaining.54 Moreover, the extraterritorial scope of this law leaves no doubt as to its applicability in Canada. cfm/history_of_nhlpa_executive_directors. 45. NHLPA, supra note 43. 46. James Baillie, An Investigation into the Collective Bargaining Relationship Between the NHL and the NHLPA, 1994-2005 17 (August 2005) (unpublished Master’s thesis, Queen’s University) (on file with the Industrial Relations Center, Queen’s University), available at http://irc.queensu.ca/articles/an-investigation-into-the- collective-bargaining-relationship-between-the- nhl-and-the-nhlpa-1994-2005. 47. CBA, supra note 6, at pmbl., art. 2.1. Article 2.1 restates similar language found in the Preamble. See generally id. at art. 2.1. 48. National Labor Relations Act, 29 U.S.C. §§ 151-169 (2006). 49. PAUL C. WEILER & GARY R. ROBERTS, SPORTS AND THE LAW 240 (2d ed. 1998). 50. Id. at 250. 51. See generally American League of Prof’l Baseball Clubs, 180 N.L.R.B. 190 (1969). 52. Aubut, supra note 3, at 190. 53. The NLRA also specifies that “[e]mployees shall have the
- 333. right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection . . . .” 29 U.S.C. § 157. 54. § 158. 2 7 9 2 3 sp o _ 2 0 -1 S h e e t N o . 8
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- 335. With respect to extraterritoriality, a situation arose that is worth looking at and analyzing here: it occurred in October 2005, during the lockout that was ordered by the NHL. At the time it did not appear that the labor dispute, which had already led to the cancellation of the 2004-2005 hockey season, was going to be resolved quickly. The NHL was therefore considering the possibility of using replacement players for the 2005-2006 season. Under the NLRA, it would have been possible, in accordance with a complex legislative mechanism, to use replacement workers, or “scabs” in the case of a deadlock in negotiations.55 The NHL may, in fact, only have wanted to put pressure on the players by reminding them that it could resort to such action. In any case, the NHLPA reacted to this threat by turning to Quebec law, which has included anti-scab provisions since 1977,56 and applying to be certified to represent all players in the Montreal Canadiens hockey club.57 Lawyers for the Montreal Canadiens and the NHL argued that the parties concerned—the NHL and the NHLPA—had been subject to the NLRA for over forty years, and that the NLRA had extraterritorial scope, whereas the Quebec Labor Code did not.58 This led to the application of the estoppel rule and, subsequently, of the doctrine of forum non conveniens pursuant to article 3135
- 336. of the Civil Code of Quebec.59 Consequently, the Commission des Relations de Travail (CRT) refused to take jurisdiction over this matter, referring it instead to the National Labor Relations Board in the United States, which it deemed better suited to rule on this dispute.60 Moreover, it concluded that the certification unit requested by the NHLPA was not appropriate, as it should have included all NHL players rather than just those of the Montreal Canadiens hockey club.61 In the end, the NHLPA, which had wanted to use this means to respond to pressure from the NHL, dropped its request for certification. During the same labor dispute, the NHLPA applied for certification to represent all Vancouver Canucks players under the law relating to collective labor relations in British Columbia.62 However, on July 31, 2007, the British Columbia Labour Relations Board (the “Board”), in an administrative review, reversed the June 2006 decision by a labor commissioner who had concluded 55. § 158. 56. Quebec Labour Code § 109.1. 57. See generally Association des Joueurs de la Ligue Nationale de Hockey v. Club de Hockey Canadien Inc., 2005 QCCRT 354. 58. Id.
- 337. 59. Civil Code of Québec, S.Q., ch. 64 (1991). 60. Association des joueurs de la Ligue nationale de hockey, 2005 QCCRT, at 354. 61. British Columbia Labour Relations Code, R.S.B.C., ch. 244, § 22(1) (2009). 62. Orca Bay Hockey Ltd. P’ship and Nat’l Hockey League, BCLRB, no. B172/2007, ¶ 6 (2007). 2 7 9 2 3 sp o _ 2 0 -1 S h e e t N o . 8 5 S
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- 339. that the bargaining unit in question was “appropriate” in accordance with Section 22(1) of British Columbia’s Labour Relations Code.63 The history of labor relations between the parties, and the particular nature of the professional sports industry and of the collective representation and bargaining system that had been set up in the NHL, were listed as the determining factors in refusing the requested certification.64 Could this decision, which in a way, grants priority to “collective autonomy” at the North American level over collective labor relations at the local level, be easily transposed into Quebec law? This could come up, for example, if an application for certification on the part of players from the Montreal Canadiens was once again brought before the CRT. A brief analysis of all the arguments put forward by the parties and laid out in the two Board decisions leads us to conclude that a ruling in favor of certification of these players under the Quebec Labour Code does not appear likely, even though such a possibility cannot be completely ruled out. It is true that the players belonging to the Canadiens, the employer under the Quebec Labour Code, may form a “separate group,” which would allow them to be granted certification, provided, of course, that the association applying for certification
- 340. was able to establish that it was representative of the majority of employees.65 The main question nevertheless remains whether this certification unit would be deemed to be “appropriate,” that is, whether “this unit, in accordance with the particular circumstances of time and place, [will] be considered to have the attributes that would make collective labour relations truly workable.”66 Certainly, it must be recognized that the existence of the CBA, which has the value of a signed contract between private parties, does not in itself constitute a structural obstacle to the players being granted certification,67 nor, if the case should arise, to a collective agreement being negotiated between a team and the association representing the players working for this team. These steps are fundamental components of the legal collective labor relations system, essential components that are undeniably of public order. Moreover, the existence of an individual contract, or several individual contracts, does not in itself undermine the right to certification requested by an association of employees who would otherwise be legally entitled to it.68 However, the difficulties that could potentially stem from the implementation of collective 63. Id. ¶ 76. 64. Id. ¶¶ 58-74.
- 341. 65. Quebec Labour Code § 21. 66. MORIN ET AL., supra note 11, at 927. This is the authors’ translation from French to English. 67. Quebec Labour Code § 21. 68. § 21. 2 7 9 2 3 sp o _ 2 0 -1 S h e e t N o . 8 6 S id
- 342. e A 0 1 /0 8 /2 0 1 0 1 0 :2 3 :5 9 27923 spo_20-1 Sheet No. 86 Side A 01/08/2010 10:23:59 C M Y K FOURNIER.DOC (DO NOT DELETE) 12/23/2009 3:24:54 PM 2009] L A B O R R E L A T I O N S I N T H E N H L 157 labor relations within an NHL team, in accordance with the Quebec Labour Code, in particular the fact that the CBA standardizes working
- 343. conditions and harmonizes salaries for all NHL players, were clearly pointed out in the first Board decision, and these potential problems cannot be ignored.69 The decision rendered by the Board in an administrative review is unequivocal in this regard. Ultimately, the Board decided to reject the application for certification concerning the Vancouver Canucks players, citing the following reasons: Orca Bay is the employer, but Orca Bay itself is an integral part of the NHL, just as the BC-NHLPA is an integral part of the NHLPA, and the Canucks players, as a team, are an integral part of the hockey league within which they play. All three elements – the employer Orca Bay, the union BC- NHLPA, and the employee Canuck players – are well served by their current league-wide bargaining structure. This is a crucial factor in our finding that the applied for bargaining unit is inappropriate. If this circumstance were to change, such that either or both parties were no longer well served by the existing bargaining structure, it may be that we would have to revisit our decision. However, in light of the present circumstances, we find that the bargaining unit applied for is inappropriate.70 Consequently, if the CRT was one day asked to decide on the
- 344. appropriateness of such a certification unit, it seems doubtful that the latter would meet the standard criteria related to coherence in the group of employees, the history of labor relations between the parties, the organizational structure of the enterprise operated by the employer, its geographical environment, and the goal of industrial peace, especially given that the only requests that have actually been made for such certification were made during the most contentious moments of a stormy collective labor dispute between the NHL and the NHLPA. The contractual system, which has been put in place and involves both a history of collective bargaining and a collective sector-based employment contract, is functioning effectively. Indeed, there is no reason to believe that its legitimacy or legality will be challenged in the short term by the parties concerned. To sum up, the fact that the employers’ representative voluntarily recognized the NHLPA as the players’ representative and that a private system of transnational and multi-employer collective bargaining was put in place, merits some consideration. This process took place outside of the legislative framework provided by American or Canadian labor laws, under which, as has 69. Orca Bay Hockey Ltd. P’ship and Nat’l Hockey League and
- 345. British Columbia Chapter of the Nat’l Hockey League Players’ Ass’n, BCLRB, No. B138/2006, ¶ 163 (2006). 70. Orca Bay Hockey Ltd. P’ship and Nat’l Hockey League, BCLRB No. B172/2007, ¶ 77. 2 7 9 2 3 sp o _ 2 0 -1 S h e e t N o . 8 6 S
- 346. id e B 0 1 /0 8 /2 0 1 0 1 0 :2 3 :5 9 27923 spo_20-1 Sheet No. 86 Side B 01/08/2010 10:23:59 C M Y K FOURNIER.DOC (DO NOT DELETE) 12/23/2009 3:24:54 PM 158 M A R Q U E T T E S P O R T S L A W R E V I E W [Vol. 20:1 been seen, the only authorized level of collective representation
- 347. and collective bargaining is that of the firm. The parties concerned thus created a system that has made it possible to negotiate working conditions collectively at the sectoral level, for all the players and teams across the NHL. B. The CBA: Standardizes Working Conditions and Harmonizes Players’ Salaries Across the NHL The CBA came into force retroactively as of September 16, 2004, for a duration of six years.71 However, the NHLPA has the option of reopening negotiations after four years—that is, at the end of the 2008- 2009 hockey season—or of extending it for another year upon expiry, that is, for the 2011- 2012 season.72 This highly complex document determines the respective rights and obligations of all the parties concerned, but also, mainly, the set of working conditions that apply to all NHL players and teams.73 In short, the content of the CBA contractually imposes a “minimum public order.”74 Furthermore, it binds the parties, that is, the teams and their players, to respect its provisions, including those of the individual employment contract,75 called the Standard Player Contract (SPC).76 The following subjects, among others, are covered in the SPC, in the same order as in the CBA: drafting amateur players,77 the specific
- 348. parameters of the first contract,78 the process leading to free agent status,79 signing the SPC,80 salary arbitration,81 the rules concerning “waivers”82 and loans of players to minor league teams,83 training camp and related expenses engaged in for 71. CBA, supra note 6, at art. 3.1 (a). 72. Id. at art. 3.1 (b). 73. See generally id. 74. Act Respecting Labour Standards, ch. N.1-1, § 93. 75. CBA, supra note 6, at art. 2.1, Exhibit 1. 76. The SPC constitutes Exhibit 1 of the CBA. See also id. at art. 1. “‘Standard Player Contract’ or ‘SPC’ means the standard form contract attached hereto as Exhibit 1 which will be the sole form of employment contract used for all Player signings after the execution of this Agreement.” Id. 77. Id. at art. 8. 78. Id. at art. 9. 79. Id. at art. 10. 80. Id. at art. 11. 81. Id. at art. 12. 82. “‘Waivers’ means the process by which the rights to a Player are offered to all other Clubs pursuant to the procedure set forth in Article 13 of this Agreement and shall include Regular, Re- Entry and Unconditional Waivers.” Id. 83. Id. at arts. 13-14.
- 350. 8 /2 0 1 0 1 0 :2 3 :5 9 27923 spo_20-1 Sheet No. 87 Side A 01/08/2010 10:23:59 C M Y K FOURNIER.DOC (DO NOT DELETE) 12/23/2009 3:24:54 PM 2009] L A B O R R E L A T I O N S I N T H E N H L 159 players,84 the grievance and arbitration process,85 per diem allowances for players,86 the pension plan,87 group insurance coverage,88 international competitions,89 sponsorships and licensing,90 an anti-doping program,91 and the establishment of a “salary cap,”92 which is one of the distinctive features of the labor relations system set up in 2005 by the CBA that will be examined
- 351. in more detail later on in this Article. The NHL and the NHLPA in effect agreed to limit the expenditures devoted to players’ salaries, in proportion to the NHL’s overall revenues. On the one hand, for each season, the teams’ payroll expenditures cannot exceed a specified maximum amount, which is determined annually. This is what in sports jargon, is referred to as the salary cap. On the other hand, again on an annual basis, the CBA establishes a “maximum player salary.”93 The teams must remain within the limits of this system when distributing their total payroll. Consequently, salary negotiations between the player and the team are strictly regulated by the mechanism set out in the CBA. There are three factors that must be considered before the annual salary cap can be established: Hockey Related Revenues (HRR),94 the Applicable Percentage,95 and Benefits.96 Once these factors have been worked out, it is possible to calculate the salary cap,97 as well as the maximum salary that can be paid to any single player.98 1. Calculating the salary cap. The salary cap, or Team Payroll Range System,99 to use the exact term 84. Id. at art. 15.
- 352. 85. Id. at art. 17. 86. Id. at art. 19. 87. Id. at art. 21. 88. Id. at art. 23. 89. Id. at art. 24. 90. Id. at art. 25. 91. Id. at art. 47. 92. Id. at art. 50. 93. See id. at art. 50.6. 94. Id. at art. 50.1(a). 95. Id. at art. 50.4(b). 96. Id. at art. 50.3. 97. Calculating the salary cap will be further discussed infra Part IV.B.1. 98. Calculation of the maximum salary that a team can pay to any single player will be futher discussed in Part IV.B.2. 99. The expression “salary cap” does not appear anywhere in the CBA, which prefers the term “Team Payroll Range System.” CBA, supra note 6, at art. 50. Nevertheless, there is no doubt that a 2 7 9 2 3 sp o _
- 354. :2 3 :5 9 27923 spo_20-1 Sheet No. 87 Side B 01/08/2010 10:23:59 C M Y K FOURNIER.DOC (DO NOT DELETE) 12/23/2009 3:24:54 PM 160 M A R Q U E T T E S P O R T S L A W R E V I E W [Vol. 20:1 used in the CBA, establishes a direct relationship between the total payroll that is available for each team and the NHL’s HRR, which is the first factor taken into consideration. Thus, since the 2005-2006 season, the total amount in salaries paid annually to players has varied in proportion to a rise or fall in HRR, depending on the year. A new calculation is made each year,100 based on a formula set out in the CBA.101 In other words, HRR is used as a starting point in the NHL’s new system for calculating salaries. The term HRR must be broadly interpreted and includes, among other things, “the operating revenues . . . from all sources, whether known or unknown, whether now in existence or created in the future . . . of each Club or the League . . . derived or
- 355. earned from, relating to or arising directly or indirectly out of the playing of NHL hockey games or NHL-related events . . . .”102 In short, all NHL revenues are truly included in the HRR, and can be redistributed to the players in the form of salaries, as explained below. The second factor considered when calculating the salary cap is the Applicable Percentage.103 Each season, the players receive a percentage of the NHL’s total HRR. As was mentioned above, this percentage increases or decreases, in relation to a rise or fall in the HRR, in accordance with the following distribution grid:104 Applicable Percentage HRR 54% Under $2.2 billion 55% $2.2 to $2.4 billion 56% $2.4 to $2.7 billion 57% Over $2.7 billion The third factor considered relates to the Benefits that players receive.105 This includes all sums paid out in pensions; government programs, such as salary cap does exist in the NHL. Id. at art. 50.1. 100. Id. 101. Id. at art. 50.5(b)(i). 102. Id. at art. 50.1(a). 103. See id. at art. 50.4(b). 104. Id. at art. 50.4(b)(i). It should be noted that the Applicable Percentage must be readjusted in
- 356. accordance with the HRR if the latter are situated between two levels. Id. at art. 50.4(b)(ii). For example, if the HRR came to $2.3 billion (half-way between 2.2 billion and 2.4 billion), a rate of 55.5% would be applied (half-way between 55.0% and 56.0%). 105. Id. at art. 50.3(a). 2 7 9 2 3 sp o _ 2 0 -1 S h e e t N o . 8 8
- 357. S id e A 0 1 /0 8 /2 0 1 0 1 0 :2 3 :5 9 27923 spo_20-1 Sheet No. 88 Side A 01/08/2010 10:23:59 C M Y K FOURNIER.DOC (DO NOT DELETE) 12/23/2009 3:24:54 PM 2009] L A B O R R E L A T I O N S I N T H E N H L 161
- 358. social insurance premiums paid by the team, as the employer; compensation under group insurance programs including life, medical, and dental coverage; playoff pool amounts paid by the League; and individual performance bonuses paid by the League, in accordance with Exhibit 5-B Individual “B” Bonuses, of the CBA.106 It includes, in fact, all of the employee benefits actually received by the players. From this total amount, a figure of $6.5 million was established for each of the 2005-2006 and 2007-2008 seasons.107 The figure established for each of the subsequent years covered by the CBA is $6.75 million.108 Once this last factor has been determined, it becomes possible to calculate the annual salary cap that will be imposed on the teams. It should be pointed out that this salary cap (the “Upper Limit”) is accompanied by a salary floor (the “Lower Limit”).109 Calculating the Upper and Lower Limits of the total annual salaries that can be paid out by the NHL teams thus involves three steps, and the final amounts are determined on the basis of the HRR, the Applicable Percentage and Benefits:110 Midpoint = [(HRR ! Applicable Percentage) – (Benefits)] ÷ 30 (the number of teams in the NHL);
- 359. Adjusted Midpoint = Midpoint ! 1.05 (adjusted by 5% every year to account for inflation); Lower Limit = Adjusted Midpoint – $8 million; Upper Limit = Adjusted Midpoint + $8 million. This means that, if, for example, the HRR came to $2.3 billion and the Benefits were evaluated at $66 million, then, for the following season, the Lower Limit would be set at $34.4 million, while the Upper Limit would be set at $50.4 million, as illustrated below: Midpoint = [($2.3 billion ! 55.5%)-($66 million)] ÷ 30 = $40.35 million Adjusted Midpoint = $40.35 million ! 1.05 = $42.4 million Lower Limit = $34.4 million and Upper Limit = $50.4 million Once the Lower Limit and Upper Limit have been worked out for a given season, it then becomes possible to determine the maximum salary that can be paid to any player for that season. 106. Id. at art. 50.3(a)(i)(A)(1)-(5). 107. Id. at art. 50.3(a)(i)(B). 108. Id. at art. 50.3(a)(i)(B). 109. Id. at art. 50.5(a). 110. Id. at art. 50.5(b)(i). 2 7
- 361. 0 1 0 1 0 :2 3 :5 9 27923 spo_20-1 Sheet No. 88 Side B 01/08/2010 10:23:59 C M Y K FOURNIER.DOC (DO NOT DELETE) 12/23/2009 3:24:54 PM 162 M A R Q U E T T E S P O R T S L A W R E V I E W [Vol. 20:1 2. Calculating the Salary Cap or Upper Limit. The maximum annual salary is a new feature, introduced in the 2005 CBA.111 Accordingly, the annual salary of any player, including individual performance bonuses, can never exceed twenty percent of the Upper Limit.112 Thus, for the example shown above, no player could earn more than $10.08 million for the season in question. In the case of a contract lasting longer than
- 362. one season, the maximum salary allowed for the subsequent seasons would correspond to the maximum salary established when the SPC was signed.113 That said, in order to avoid confusion and, especially, a wave of salary increases across the NHL, it is essential that the SPC, concluded between a team and a player, specify the annual salary in terms of an exact dollar figure.114 Therefore, it is prohibited to state that a player will receive a certain percentage of the salary cap.115 What would happen if total HRR went down, leading to a drop in the salary cap, and if, the following season, a player therefore earned more than twenty percent of the salary cap? It should be pointed out here that the contracts are signed on the basis of a predetermined rather than an indefinite term. The team must respect the contract, and thus, the player would be entitled to keep his entire salary even if it went over the twenty percent threshold set by the Upper Limit.116 On the other hand, this amount, paid out in salary, would be deducted from the team’s total payroll.117 This rule encourages teams to show restraint. They must, in effect, avoid granting the maximum salary allowed a player so as not to unjustifiably lower their room for maneuver in the years to come, especially in case overall NHL revenues were to drop.
- 363. In conclusion, the system of union representation and collective bargaining of working conditions that has gradually been put in place in the NHL is characterized by its transnationalism and multilateralism and presents a model of private regulation of working conditions. The collective bargaining of working conditions is centralized at the sectoral level, involving the owners of the thirty teams, the NHL directors, and representatives of all the hockey players in the League. The CBA, signed in 2005 as the result of 111. E.g., id. at art. 50. 112. Id. at art. 50.6(a). It should be noted that the CBA also sets out the minimum annual salary that can be paid to a player: $475,000 for the 2007-2008 and 2008-2009 seasons; $500,000 for the 2009-2010 and 2010-2011 seasons; and $525,000 for the 2011- 2012 season. Id. at art. 11.12. 113. Id. at art. 50.6(a). 114. Id. at art. 50.6(b). 115. Id. 116. Id. at art. 50.6(a). 117. Id. 2 7 9 2
- 365. 1 0 1 0 :2 3 :5 9 27923 spo_20-1 Sheet No. 89 Side A 01/08/2010 10:23:59 C M Y K FOURNIER.DOC (DO NOT DELETE) 12/23/2009 3:24:54 PM 2009] L A B O R R E L A T I O N S I N T H E N H L 163 this bargaining process, aims to standardize a whole set of working conditions across the NHL and to limit, through a salary cap or Upper Limit mechanism, the salary that can be paid to the players. Thus, it establishes a compulsory framework for decentralized bargaining relating to the individual employment contract between the player and his team. IV. INDIVIDUAL LABOR RELATIONS IN THE NHL Individual labor relations in the NHL take place at the level of “the firm.” The negotiation of the employment contract between the player
- 366. and the team, which is intended mainly to determine the salary and duration of the contract, must be conducted in accordance with the rules specified in the CBA.118 In the event of a dispute over salary determination, an arbitrator can be called upon to settle the matter; the same applies, more generally, to disputes over the interpretation or application of the CBA, or over the individual employment contract concluded outside this agreement.119 A. Negotiating the Employment Contract Between a Player and a Team Apart from being subject to the CBA as a group, the players are also individually bound to their respective teams—the real employer at the legal level—by an employment contract called the SPC. Exhibit 1 of the CBA contains the eleven-page SPC, and Article 11 of the CBA stipulates the standards governing such contracts.120 In particular, the aspects that are negotiated individually between a team and a player are as follows: the annual salary, set in accordance with the rules explained above, and in some cases, bonuses and “non-trade” clauses.121 The duration of the contract is also negotiated on an individual basis, except when this involves a first contract signed by the player in the NHL.122 All other aspects of the contract are
- 367. already covered in the SPC.123 Thus, by accepting the terms of the SPC, the player “agrees to give his services and to play hockey in all NHL Games, All 118. The rules regarding negotiation of the player contract will be further discussed infra Part IV.B. 119. CBA, supra note 6, at arts. 12, 17. Arbitration will be further discussed infra Part IV.C. 120. Id. at Exhibit 1. 121. CBA, supra note 6, at arts. 11.7, 50.2(b) (discussing bonuses). Pursuant to a nontrade or nonmove clause, the team undertakes to not trade the player to another team for the duration of the SPC. Id. at art. 11.8. 122. In such a case, the duration of the contract varies based on the player’s age at the time his SPC was signed. Id. at art. 9.1. For example, the first contract signed by a player aged 18 to 21 is for the duration of three seasons. 123. Id. at Exhibit 1. 2 7 9 2 3 sp
- 369. 1 0 :2 3 :5 9 27923 spo_20-1 Sheet No. 89 Side B 01/08/2010 10:23:59 C M Y K FOURNIER.DOC (DO NOT DELETE) 12/23/2009 3:24:54 PM 164 M A R Q U E T T E S P O R T S L A W R E V I E W [Vol. 20:1 Star Games, International Hockey Games, and Exhibition Games to the best of his ability, under the direction and control of the Club in accordance with the provisions hereof.”124 The obligations imposed by the SPC on a player are, among others, to report to his team’s training camp, at the time and place specified by the team, in good physical condition;125 “to keep himself in good physical condition at all times during the season;”126 to play hockey only for the team with which he signed his SPC;127 to cooperate with his team and participate in all reasonable promotional activities to which he is assigned by the
- 370. team, as it deems appropriate;128 “to conduct himself on and off the rink according to the highest standards of honesty, morality, fair play, and sportsmanship, and to refrain from conduct detrimental to the best interest of the Club, the League, or professional hockey generally;”129 and to report for practice at such time and place as the team may designate.130 Lastly, the SPC contains provisions related to the fines and suspensions that the team may impose on a player who violates the club’s internal rules,131 as well as provisions relating to salary and medical expenses related to an injury.132 Nevertheless, the principal issue of the SPC negotiation is still unquestionably that of salary. Thus, the CBA set up, for certain categories of players, a private mechanism for settling disputes—salary arbitration.133 B. Private Arbitration as Compulsory Means of Settling Disputes Between a Player and a Team The absolute jurisdiction of an arbitrator appointed under the CBA varies according to whether the subject of the dispute involves the player’s salary134 or the interpretation or application of the CBA or the SPC concluded between the player and his team.135 124. Id. at Exhibit 1, art. 2.
- 371. 125. Id. at art. 2(a). 126. Id. at art. 2(b). 127. Id. at art. 2(c). 128. Id. at art. 2(d). 129. Id. at art. 2(e). 130. Id. at art. 3. 131. Id. at art. 4. 132. Id. at art. 5. 133. E.g., id. at art. 12. 134. Salary arbitration will be further discussed infra Part V.B.1. 135. Grievance arbitration will be further discussed infra Part V.B.2. 2 7 9 2 3 sp o _ 2 0 -1 S h e e
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- 373. FOURNIER.DOC (DO NOT DELETE) 12/23/2009 3:24:54 PM 2009] L A B O R R E L A T I O N S I N T H E N H L 165 1. Disputes over salary negotiations. In sports law, salary arbitration is a tool that is made available to the parties in order to settle their disputes over the negotiation of a contract between a player and a team. The hearing is held before an independent arbitrator, with each party generally being represented by their lawyers, plus the agent for the player, and the general manager or his assistant for the team.136 The arbitrator decides on issues related to the player’s salary only.137 There are just two professional leagues in North America that use this system—the NHL and Major League Baseball (MLB).138 The National Basketball Association and the National Football League have not adopted this system in their respective collective agreements.139 The NHL was the first professional league to introduce salary arbitration, as early as 1970, followed by the MLB in 1973.140 The introduction of this mechanism stemmed from the dissatisfaction generated by the option clause, a rule that was inserted in the NHL’s SPC in 1958.141 This clause stipulated that when a player’s contract expired, the team could
- 374. unilaterally extend it for the same duration as that of the previous contract, at the level of salary determined by the team.142 Since this clause was automatically integrated into the player’s new contract, it was thus possible for the team to continually renew this contract without any real negotiations being conducted between the parties.143 Moreover, at that time, salary disputes were submitted to the NHL president for resolution.144 The latter rendered an irrevocable decision, which determined the salary to be paid to the player.145 However, there was a real conflict of interest since the president of the NHL was appointed, it should be noted, by the owners of the various teams.146 Finally, following a report published in 1969 that criticized the perverse effects of the system on the competitiveness of NHL teams among themselves, the players were able to 136. WEILER & ROBERTS, supra note 49, at 336. 137. Aubut, supra note 3, at 191. 138. However, there are significant differences between the two systems, which will not be addressed in this study. See generally id. 139. See id. at 211-22. 140. WEILER & ROBERTS, supra note 49, at 336. 141. Joseph Weiler, Legal Analysis of the NHL Player’s Contract, 3 MARQ. SPORTS L.J. 59, 70 (1992); Aubut, supra note 3, at 193.
- 375. 142. Aubut, supra note 3, at 193. 143. Id. 144. Id. 145. Id. 146. STEIN, supra note 40, at 37. 2 7 9 2 3 sp o _ 2 0 -1 S h e e t N o . 9 0 S id
- 376. e B 0 1 /0 8 /2 0 1 0 1 0 :2 3 :5 9 27923 spo_20-1 Sheet No. 90 Side B 01/08/2010 10:23:59 C M Y K FOURNIER.DOC (DO NOT DELETE) 12/23/2009 3:24:54 PM 166 M A R Q U E T T E S P O R T S L A W R E V I E W [Vol. 20:1 negotiate through their new union association, an arbitration system that made
- 377. it possible to settle salary disputes between players and their respective teams.147 a. Eligibility for arbitration. Salary arbitration can be requested by the player148 and, henceforth—a novelty introduced in the CBA—by the team.149 To be eligible, the player must first be a member of Group 2,150 that is, a “restricted free agent.”151 He must then meet the conditions listed explicitly in the CBA:152 Age at signing of first SPC Minimum number of years of professional experience required to be eligible 18-21 3 years 22-23 2 years 24 or older 1 year To be granted a full year of professional experience, a player aged eighteen or nineteen must have played at least ten games in the NHL during the same season, whereas a player aged twenty must have played ten or more games at the professional level under an SPC.153 Lastly, the player must have received a qualifying offer from his team beforehand.154 This offer, whose 147. Weiler, supra note 141, at 70; Aubut, supra note 3, at 193. 148. CBA, supra note 6, at art. 12.1. 149. Id. at art. 12.3.
- 378. 150. Id. at art. 12.1(b). 151. If he is not an unrestricted free agent according to Article 10.1, or a Group 1 or 4 player, the player becomes a Restricted Free Agent (Group 2 player), when his SPC expires. Id. at art. 10.2. The other teams will then be free to offer him a new contract, but the team with whom he played previously will have the opportunity to equalize the offer. Id. at art. 10.3. Otherwise, it will nevertheless receive a draft choice compensation. Id. at art. 10.4. 152. Id. at art. 12.1(a). 153. “‘Professional Games’ includes the following: any NHL Games played, all minor league regular season and playoff games and any other professional games played, including but not limited to, games played in any European league or any other league outside North America, by a Player pursuant to his SPC.” Id. at art. 1. If a player is drafted at age seventeen, signs his first SPC at eighteen, and plays in the NHL at nineteen, he will need a minimum of four years professional experience before becoming eligible for salary arbitration when his SPC expires. Id. at art. 12.1(a). 154. Id. at art. 10.2 (a)(ii). 2 7 9 2
- 380. 1 0 1 0 :2 3 :5 9 27923 spo_20-1 Sheet No. 91 Side A 01/08/2010 10:23:59 C M Y K FOURNIER.DOC (DO NOT DELETE) 12/23/2009 3:24:54 PM 2009] L A B O R R E L A T I O N S I N T H E N H L 167 term is limited to one season only, allows the team to maintain some rights over the player.155 If the team fails to make such an offer, the player becomes an unrestricted free agent.156 The qualifying offer must be made by June 25 of each year, or the first Monday following the draft of the player’s last year under the SPC; it must also comply with the following:157 Salary during last year of SPC Qualifying offer Under $660,000 110% From $660,000 to US$1,000,000 105%158 Over $1,000,000 100%
- 381. After having received a qualifying offer, the player who meets all the previously mentioned conditions can request salary arbitration, but only if he thinks that he can obtain a more advantageous annual salary.159 Otherwise, he can simply agree to play the following season under the terms of the qualifying offer or refuse the offer in question and not request arbitration.160 In the jargon of the trade, he will then be characterized as a “hold out” or a “striking player.” In this case, the team can file a request for arbitration before July 6 if it deems it appropriate to do so, or let the player continue to strike.161 The striking player has until December 1162 to come to an agreement with his team; otherwise he will not be able to play during the season in question. It must be mentioned that the team can, at any time, offer more than what is specified in the qualifying offer, which may lead to a short- or long-term agreement if the player accepts it.163 As was explained above, the team can also request salary arbitration.164 However, it can only do so in two very specific cases.165 First, the team can 155. Id. at arts. 10.3, 10.4. 156. For a player’s status to change to Unrestricted Free Agent, the team must not have already requested arbitration. Id. at art. 10.2(a)(iv).
- 382. 157. Id. at art. 10.2(b)(ii)(A)-(C). 158. Id. However, the amount must not exceed $1,000,000. Id. at art. 10.2(a)(ii)(B). 159. Id. at art. 10.2(a). 160. Id. 161. Id. at art. 12.4(b). 162. Id. at art. 11.4. This is the “Signing Deadline for Group 2 Players.” Id. 163. Id. at art. 10.3 164. Id. at art. 12.3. 165. Id. at art. 12.3(a)-(b). 2 7 9 2 3 sp o _ 2 0 -1 S h e e t N o
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- 384. 168 M A R Q U E T T E S P O R T S L A W R E V I E W [Vol. 20:1 request salary arbitration when the player has rejected the qualifying offer and has not requested arbitration himself.166 In this case, the team must offer him a salary equal to or higher than the last salary level agreed on under the previously concluded SPC.167 Second, with regard to a player who earned a salary of $1.5 million or more during the last year of his SPC, the team can refer the matter directly to an arbitrator instead of making a qualifying offer.168 Thus, it can ask the arbitrator to grant a decrease in salary equivalent to a maximum of fifteen percent of the player’s most recent annual salary.169 It should be noted that, in all cases, the player is eligible for only one session of team-elected salary arbitration during his career.170 Similarly, a team cannot request more than two sessions of salary arbitration per year.171 b. The arbitration process and the powers of the arbitrator. To be eligible for salary arbitration, the player must file his request by July 5 at 5:00 p.m. (EST).172 The team, on the other hand, must take action before June 15 or forty-eight hours after the conclusion of the Stanley Cup Finals, whichever is later, again by 5:00 p.m. (in the case of arbitration
- 385. involving a player who earned a salary of $1.5 million or more during the last year of his SPC).173 All arbitration cases must be heard between July 20 and August 4 of each year.174 The NHL and the NHLPA jointly choose eight salary arbitrators, all members of the National Academy of Arbitrators in the United States.175 The latter are appointed to hear the cases filed.176 The hearing takes place before a single arbitrator chosen by the parties according to a pre- established process.177 At least forty-eight hours before the hearing, the parties must send both the arbitrator and the opposing party a brief that is, at most, forty pages long (excluding annexes) detailing the positions, arguments, 166. Id. at art. 12.3(b)(i). 167. Id. at art. 12.3(b)(ii). 168. Id. at art. 12.3(a)(i). 169. Id. at art. 12.3(a)(ii). 170. Id. at art. 12.3(c). 171. Id. at art. 12.3(d). 172. Id. at art. 12.2. 173. Id. at art. 12.4(a). With regard to a player who rejected the qualifying offer and has not requested arbitration himself, the team must act by 5:00 p.m., July 6. Id. at art. 12.4(b). 174. Id. at Exhibit 15. 175. Id. at art. 12.6. 176. Id. 177. Id. at art. 12.7(c).
- 387. 1 /0 8 /2 0 1 0 1 0 :2 3 :5 9 27923 spo_20-1 Sheet No. 92 Side A 01/08/2010 10:23:59 C M Y K FOURNIER.DOC (DO NOT DELETE) 12/23/2009 3:24:54 PM 2009] L A B O R R E L A T I O N S I N T H E N H L 169 and statistics put forward to back up their claim.178 During the hearing, each party has a specified period of time in which to argue their case directly (the “Direct Case”) and then refute the allegations of the opposing party or present their rebuttal case.179
- 388. Each party has a maximum of ninety minutes to present their Direct Case and respond to the arguments of the other party.180 The player, the team, the NHL, and the NHLPA are party to the procedure and can be represented by their respective agents or lawyers.181 At the hearing, the parties can produce any documents and declarations under oath to back up their allegations and call the witnesses they deem pertinent, subject to restrictions specified in the CBA.182 The weight of the evidence submitted to the hearing is assessed exclusively by the arbitrator and the latter is not bound by any particular rule of evidence, except those listed explicitly in the CBA.183 The following types of evidence are declared admissible: (1) the overall performance, including official statistics prepared by the NHL (both offensive and defensive), of the player in the current season or preceding seasons;184 (2) the number of games played by the player, his injuries or illnesses during the preceding seasons;185 (3) the player’s number of years of experience in the NHL or the team;186 (4) the overall contribution of the player to the success or failure of the team in the preceding season;187 (5) any special qualities of the player, such as leadership or personal commitment to the community;188 (6) the overall performance in 178. Id. at art. 12.9(b).
- 389. 179. Id. at art. 12.9(d). The order of argument depends on the party who filed the request, unless the order is determined by the arbitrator or mutually agreed upon by the parties. Id. at art. 12.9(k). 180. Id. at art. 12.9(d). If the party presenting second introduces new substantive issues or new players or “comparable players,” the other party will have ten additional minutes for surrebuttal. Id. 181. Aubut, supra note 3, at 204; CBA, supra note 6, at art. 12.9(a). 182. CBA, supra note 6, at art. 12.9(g)(i). The following categories of evidence are inadmissible: the terms of any player’s SPC when he was not a “Group 2 Player;” the SPCs signed by an “Unrestricted Free Agent;” the SPC of any player who has not been presented as a comparable player; qualifying offers made by the team; offers made during negotiations; newspaper columns, press game reports or similar materials; and any reference to walk-away rights. For further discussion, see infra Part IV.B.1.c. Any compensation awarded by a salary arbitrator leading to the use of the walk away right by a club; the financial situation of a team or of the NHL; any reference to the “Lower Limit” or “Upper Limit,” as well as to the “Players’ Share;” any reference to an arbitral decision issued in summer 2005; and lastly, any reference to the salary information contained in previous arbitration decisions. Id. at art. 12.9(g)(iii). 183. Id. at art. 12.9 (g)(i). 184. Id. at art. 12.9(g)(ii)(A). 185. Id. at art. 12.9(g)(ii)(B).
- 390. 186. Id. at art. 12.9(g)(ii)(C). 187. Id. at art. 12.9(g)(ii)(D). 188. Id. at art. 12.9(g)(ii)(E). 2 7 9 2 3 sp o _ 2 0 -1 S h e e t N o . 9 2 S id e
- 391. B 0 1 /0 8 /2 0 1 0 1 0 :2 3 :5 9 27923 spo_20-1 Sheet No. 92 Side B 01/08/2010 10:23:59 C M Y K FOURNIER.DOC (DO NOT DELETE) 12/23/2009 3:24:54 PM 170 M A R Q U E T T E S P O R T S L A W R E V I E W [Vol. 20:1 the previous season or seasons of any player(s) who is alleged to be “comparable” to the player whose salary is in dispute;189 and (7) the annual
- 392. salary of players alleged to be “comparable.”190 These “comparable statistics” have been sanctioned by the arbitral jurisprudence as the most important items of evidence,191 and the arbitrator’s decision is largely based on them. The NHL and the NHLPA must jointly create a comparable exhibit setting out the financial terms contained in the SPCs of all players alleged to be “comparable” players for the arbitration session;192 this involves players who have signed their current contract as a restricted free agent. Moreover, for a player to be used by the arbitrator as a comparable player, the parties must necessarily refer to him in their briefs.193 Finally, the arbitrator renders his or her decision not later than forty-eight hours after the hearing is adjourned.194 The arbitrator’s decision typically includes the salary to be paid to the player,195 the duration of the contract between the player and the team,196 a “minor league clause,”197 if applicable, and the reasons supporting the decision.198 The parties must comply with the orders issued by the arbitrator and draft the SPC accordingly.199 Lastly, each party pays for the expenses generated by their own representation and shares equally the responsibility to reimburse the cost of the arbitration process.200
- 393. c. The Walk-Away Right. Although the arbitral decision is imperative, the team can refuse to comply 189. Id. at art. 12.9(g)(ii)(F). 190. Id. at art. 12.9(g)(ii)(G). 191. Daniel Dumais et al., Présentation sur L’Arbitration Salariale at the Conference Heenan Blaikie (April 2006) (unpublished). 192. CBA, supra note 6, at art. 12.9(g)(v). 193. Id. at art. 12.9(g)(ii)(G). 194. Id. at art. 12.9(n)(i). 195. Id. at art. 12.9(n)(ii)(B). The arbitrator can decide to award the player a salary equal to one of the two offers made by the parties or any amount between the two offers. Id. 196. Id. at art. 12.9(n)(ii)(A). The term will be one year or two years, based on the player’s decision, in the case where the team filed for arbitration; or based on the team’s decision, in the case where the player filed for arbitration. Id. It should be noted that if the player reaches full autonomy, “Group 3 Player” status at the end of the season following the arbitration session, the team will not be able to decide on a two-year term. Id. at art. 12.9(c). 197. Id. at art. 12.9(n)(ii)(C). 198. Id. at art. 12.9(n)(ii)(D). 199. Id. at art. 12.5(a). 200. Id. at art. 12.9(o).
- 395. 8 /2 0 1 0 1 0 :2 3 :5 9 27923 spo_20-1 Sheet No. 93 Side A 01/08/2010 10:23:59 C M Y K FOURNIER.DOC (DO NOT DELETE) 12/23/2009 3:24:54 PM 2009] L A B O R R E L A T I O N S I N T H E N H L 171 with it under certain circumstances.201 However, the player does not have this prerogative.202 The Walk- Away Right exists only when it is the player who filed for arbitration.203 Moreover, the team is entitled to exercise its right to walk away only if the player obtains an annual salary of $1,042,173 or more at the close of the arbitration session.204
- 396. This right is usually exercised when the team considers that the salary awarded to the player is too high in relation to what it is prepared to pay. Nevertheless, the direct consequences of exercising this right are as follows: (1) if the duration of the SPC submitted to arbitration was one season only, the player will become an unrestricted free agent;205 he will then be in a position to negotiate with any other team, including that which used the Walk- Away Right; and (2) if the duration of the SPC covered by the arbitral decision was two seasons, the Walk-Away Right will only apply to the second season, such that the SPC will consequently become a one-season contract; after that season, the player will become an unrestricted free agent; he will then be in a position to offer his services to a team of his choice.206 In both cases, the team must exercise its Walk-Away Right within forty- eight hours following the decision rendered by the arbitrator.207 On the other hand, where the team must attend subsequent salary arbitration sessions with one or more players and still has a Walk Away Right, it can exercise this right within forty-eight hours following the last arbitral decision rendered in these cases, since this will allow it to decide for which player, if any, to use its Walk Away Right.208
- 397. 201. See id. at art. 12.10. 202. See id. at art. 12.10(e). 203. Id. 204. Id. at art. 12.10(a). This amount is raised proportionally, based on the average salary set in the NHL as of the 2007-2008 season. Id. at art. 12.10(d). 205. Id. at art. 12.10(a). 206. Id. at art. 12.10(b). 207. Id. at art. 12.10(a). 208. Id. 2 7 9 2 3 sp o _ 2 0 -1 S h e e t N
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- 399. FOURNIER.DOC (DO NOT DELETE) 12/23/2009 3:24:54 PM 172 M A R Q U E T T E S P O R T S L A W R E V I E W [Vol. 20:1 Lastly, the number of Walk Away Rights authorized per season and for each team depends on the volume of cases filed by its players:209 Number of Walk Away Rights per year per team Number of players having filed for arbitration 1 1 or 2 2 3 or 4 3 5 or more 2. Disputes over the interpretation and application of the Collective Bargaining Agreement and the Standard Player Contract. Grievance arbitration should be distinguished from salary arbitration, mainly because the outcome sought by this mechanism is not the same. In labor law, grievance arbitration is the judicial means of settling all disputes between an employer and a certified union over the interpretation and application of a collective labor agreement.210 The CBA, for its part, defines the term “grievance” as follows:
- 400. any dispute involving the interpretation or application of, or compliance with, any provision of this Agreement, including any SPC. All Grievances will be resolved exclusively in accordance with the procedure set forth in this Article, except wherever another method of dispute resolution is set forth elsewhere in this Agreement.211 Some specific grievances will be subject exclusively to the mechanism of Article 48.212 For all other grievances, the NHL and the NHLPA are the only authorized initiators.213 The player involved in a grievance does not have to be bound by an SPC at the time the grievance arises or when it is filed or 209. Id. at art. 12.10(c). 210. MORIN ET AL., supra note 11, at 1140. 211. CBA, supra note 6, at art. 17.1. 212. A “System Grievance” is any dispute involving the interpretation or application of or compliance with the provisions of Article 49 Player Compensation Cost Redistribution System, Article 50 Team Payroll Range System, those provisions of Article 26 No Circumvention, Article 9 Entry Level Compensation, Article 10 Free Agency, and any other articles in which the grievance resolution could affect the interpretation or application of the provisions of Article 49 or 50. Id. at art. 48.1. 213. Id. at art. 17.2(a). A grievance should be initiated within
- 401. sixty days, from the date of the events giving rise to the grievance or sixty days from the date when the parties learned or should have learned the facts giving rise to the grievance. Id. at art. 17.2(b). 2 7 9 2 3 sp o _ 2 0 -1 S h e e t N o . 9 4 S id e
- 402. A 0 1 /0 8 /2 0 1 0 1 0 :2 3 :5 9 27923 spo_20-1 Sheet No. 94 Side A 01/08/2010 10:23:59 C M Y K FOURNIER.DOC (DO NOT DELETE) 12/23/2009 3:24:54 PM 2009] L A B O R R E L A T I O N S I N T H E N H L 173 heard.214 Written notice of the grievance must be sent to the opposing party by facsimile; the notice must put forward the reasons the grievance was filed,
- 403. explanations concerning the CBA provisions, which have been violated, and a report detailing the solutions envisaged.215 After being served with a grievance, the opposing party has ten days to respond;216 it can either acknowledge or deny the alleged facts.217 At this stage, only the parties involved in the grievance participate in the process and continue to do so until the case is brought before the grievance arbitrator. However, before proceeding to hearing, the parties must first seek to settle their disputes before the Grievance Committee.218 This involves a meeting between the NHL and the NHLPA once a month following the day the grievance was filed, in an effort to settle the dispute before resorting to an arbitrator.219 The discussions and offers of settlement made during this meeting are not admitted as evidence before the arbitrator, if the process goes that far.220 If the grievance is not resolved between the parties during this meeting, the grieving party can bring the case before a grievance arbitrator.221 Just as for salary arbitration, the grievance arbitrator, jointly appointed by the parties, must be a member of the National Academy of Arbitrators.222 The arbitrator renders his or her decision within thirty days following the hearing; he or she has the power to interpret and apply the CBA provisions, including
- 404. the players’ SPCs.223 However, the arbitrator must not add to, subtract from, or alter in any way the provisions of the CBA or any SPC.224 Lastly, the decision of the grievance arbitrator is final, without possible appeal, that is, it puts an end to the dispute and is binding on the parties.225 214. Id. at art. 17.2(b). 215. Id. at art. 17.3(a). 216. Id. at art. 17.3(b). 217. Id. at art. 17.3(c). 218. Id. at art. 17.4(d). However, in some exceptional cases, called “Expedited Arbitration,” the parties may be exempt from this process. Id. at arts. 17.4 (d), 17.17. 219. Id. at art. 17.4(a). 220. Id. at art. 17.4(b). 221. Id. at art. 17.5. 222. Id. at art. 17.6. The selection process of this arbitrator is specified in Article 17.6. Id. The grievance hearing is governed by Articles 17.8 and 17.9. Id. at arts. 17-18. 223. Id. at art. 17.13. 224. Id. 225. Id. 2 7 9 2 3
- 406. 0 1 0 :2 3 :5 9 27923 spo_20-1 Sheet No. 94 Side B 01/08/2010 10:23:59 C M Y K FOURNIER.DOC (DO NOT DELETE) 12/23/2009 3:24:54 PM 174 M A R Q U E T T E S P O R T S L A W R E V I E W [Vol. 20:1 V. CONCLUSION The labor relations system that has been set up in the NHL is certainly interesting from a theoretical perspective and contains approaches that are worth exploring further, given the contemporary and fundamental issues currently faced by labor law. Thus, due to its particular nature, this system differs considerably from the international framework agreements concluded between international union federations and transnational companies, even though a number of convergent aspects can be observed.226
- 407. First, this system was constructed on a voluntary basis, since the NHL accepted the NHLPA as the players’ representative and negotiated a collective agreement that determines the working conditions for all players across the NHL. In this sense, the system that has been set up precedes national legislation on collective labor relations, since the latter’s norms and effective implementation do not generally cover the transnational dimension of NHL activities and the labor relations between the players and the teams, or the multi-employer nature that transcends such laws. In fact, the working conditions stipulated in the CBA must be respected by the thirty teams and all of the players in the NHL. Having been negotiated at the global level rather than at the local level, the working conditions constitute the required point of reference for individualized negotiation between a team and a player. Such is the predominant legal impact of this truly collective contract. And while, on the whole, the CBA is intended to standardize working conditions, the rules relating to the establishment of a real salary cap,227 in effect, harmonize salaries across the NHL. Lastly, a private mechanism for salary and grievance arbitration has been developed,228 thus ensuring the binding effect and enforceability of CBA provisions.
- 408. In other words, the working conditions observed in the CBA are the net result of an advanced process of multi-employer collective bargaining. The provisions that it contains are contractually binding, fully and comprehensively on multiple employers—the thirty teams in the NHL—in their relations with some of their employees—the players of the NHL—in a specific industry—a professional sports league—spanning across North America in two different countries. The professional sports industry in North America is certainly a world in itself. Without harboring too many illusions, it is nevertheless our view that 226. Renée-Claude Drouin, Les accords-cadres internationaux: enjeux et portée d’une négociation collective transnationale, 47 CAHIERS DE DROIT 703, 703 (2006). 227. CBA, supra note 6, at art. 40. 228. Id. at arts. 11, 17. 2 7 9 2 3 sp o
- 410. 0 :2 3 :5 9 27923 spo_20-1 Sheet No. 95 Side A 01/08/2010 10:23:59 C M Y K FOURNIER.DOC (DO NOT DELETE) 12/23/2009 3:24:54 PM 2009] L A B O R R E L A T I O N S I N T H E N H L 175 this trans American model of “collective autonomy”—an enlightened example of “legal pluralism”—represented by the NHL’s labor relations system, can serve as an inspiration to other industries wishing to follow its example. Copyright of Marquette Sports Law Review is the property of Marquette Sports Law Review and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use.
- 411. WEEK 4 AMATEURISM k 4 Assignment | Amateurism This week's assignment is a followup to the Week 3 lesson that included the topic of intercollegiate athletics. Amateurism, as related to sport, is defined as "one who engages in sport as a pastime rather than as a profession" (Merriam-Webster, 2019). However, there is still a gray area in regard to what the difference is between an amateur and a professional athlete. For example, for many years professional athletes in the United States were not allowed to participate in the Olympic Games, while other athletes around the world were defacto professionals since they were full-time athletes paid by their respective countries. That changed in 1986 when rules were changed in an effort to boost lagging interest in the Olympic Games. Subsequently, the International Olympic Committee (IOC) hit the media and financial jackpot with the success of the U.S. Dream Team in the 1992 Summer Games in Barcelona. Unfortunately, there is still controversy in regard to the application of amateurism in college athletics. Athletes at large Division I institutions generate millions of dollars for the National Collegiate Athletic Association (NCAA), as well as NCAA member schools. It could be argued that college athletes receiving scholarship money are already paid, and are therefore employees. This was confirmed by the Chicago office of the National Labor Relations Board (NLRB) when they sided with Northwestern football players trying to establish a union. This destroyed the longtime contention of the NCAA that college athletes were students first, secondarily athletes. The court ruling stated, "The players spend 50 to 60 hours per week on their football duties during a one-month training camp prior to the start of the academic year and an additional 40 to 50 hours per week on those duties during the three-or four-month football season. Not only is this more hours than many undisputed full- time employees work at their jobs, it is also many more hours
- 412. than the players spend on their studies.” By the way, football at Northwestern reportedly generated approximately $235 million in the ten year period from 2003-2012 (Nocera & Strauss, 2016). Unfortunately, on appeal, the Washington D.C. NLRB office dismissed the case, claiming it did not have jurisdiction over state-run colleges and universities. Many are baffled by the decision, since "national" typically trumps "state." Interestingly, the case was not dismissed because the NLRB ruled the players were not employees, but because the impact of the case would not promote "stability in labor relations" (Strauss, 2015). The NLRB may have avoided ruling on the issue of whether athletes are employees due to the number of stakeholders involved (Bhasin, 2018). On September 30, 2019, California governor Gavin Newsom enacted a law that allows college athletes to receive endorsement deals. This creates a nightmare for the NCAA since such deals would make college athletes accepting endorsements ineligible under NCAA rules. The NCAA is claiming the new law is unconstitutional (Gutierrez & Fenno, 2019). The new law was signed into effect by Governor Newsom on the LeBron James sports show The Shop: Uninterrupted ("Gavin Newsom," 2019). Directions: Week 4 Assignment: Please review the resources provided in this assignment. Then, in a 3-4 page essay, please share your position on the amateur issue in college sports, as well as how you think this complex issue will play out over the next several years. Try to place yourself in the position of college athletes, university presidents, fans, and the NCAA, in order to consider all stakeholders in your analysis. Finally, please defend your position with facts and stakeholder theory (for information on stakeholder theory, please see the link above to the article authored by Bhasin). Be sure to carefully proof your work, and follow APA format throughout. Please include a title page that includes your name and the assignment topic, as well as a reference page at the end of your essay which includes a
- 413. minimum of three (3) scholarly sources. Don't forget that every source should be correctly cited in the text throughout your essay. Submission Instructions: Please upload your Word document and submit in the Week 4 assignment area. Your file should be titled "Your Last Name Week 4 Assignment." For example, for a student with the last name of Smith, the file would be titled: Smith Week 4 Assignment.docx. Students will automatically lose 3 points if their assignment is not submitted with the correct file name.