Brian Burke and Mike Milbury join Vermont Law School Sports Law Institute

We are thrilled to announce that NHL executives Brian Burke and Mike Milbury have joined our Vermont Law School Sports Law Institute as members of the Board of Advisors.

As I'll detail later this week, we are close to finalizing plans for Milbury to speak at Vermont Law School on Tuesday, November 27 at 2 pm on the NHL Lockout and where things go from here.

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Brian Burke is an American-Canadian ice hockey executive who is currently the President and General Manager of the Toronto Maple Leafs. Burke has also served as General Manager of the Anaheim Ducks—leading the club to its first Stanley Cup championship—as well as the Vancouver Canucks and Hartford Whalers. Burke previously worked in the NHL front office as Executive Vice President and Director of Hockey Operations, spent six years as a player agent, and played professional hockey for the Marine Mariners of the American Hockey League. He received the 2008 Lester Patrick Award for his outstanding service to hockey in the United States. Burke is a graduate of Providence College and Harvard Law School.

Mike Milbury is an American sportscaster currently working as an ice hockey analyst for the NHL on NBC and Comcast Sports New England. He has also presented on ESPN, Versus, and CBC’s Hockey Night in Canada. Milbury played twelve seasons in the National Hockey League as a defenseman for the Boston Bruins. He coached the Bruins to the Stanley Cup Finals and the President’s Trophy for the best record in the league. Milbury spent 11 seasons with the New York Islanders, where he worked as the team’s General Manager, Head Coach, and Senior Vice President. He is an inductee of the United States Hockey Hall of Fame, and holds a degree from Colgate University.

Taxing the Marlins ex pats

I have stayed silent on the recent Marlins debacle even if it is happening in my backyard (and on my tax dollars), mainly because I already knew the stadium was a bad deal and that the Marlins are competing for the title of worst organization in all of sports by hitting the trifecta of incompetence, arrogance, and contempt.

But, via TaxProf's Paul Caron, here is a different legal take on the trade from the Wall Street Journal: the tax hit that the five traded players are going to take by leaving Florida (which has no state income tax) and going to Ontario (which just enacted a tax increase on high-earners). The author estimates the five players will lose about $ 8.4 million in lost income, based on certain assumptions and offset by certain tax benefits (they actually earn a foreign tax credit on their U.S. returns).

NHL Lockout: Will players decertify and sue? If so, when?

In recent weeks we've had several excellent posts on the NHL labor situation, which has cost 327 games through November 30 plus the Winter Classic.  A notable piece of news in Larry Brooks' New York Post Sunday column has NHL players opposed to the idea of decertifying (and also, presumably, disclaiming interest) in the NHLPA -- at least for now.  According to Brooks, players want to continue negotiations with the league.  Although the two sides appear to be within striking distance of agreement on two important issues -- division of hockey-related revenue and sharing of revenue -- additional issues, including contract rights and restrictions, have proven more difficult to resolve.  The two sides also appear to mistrust each other at higher levels than found among league and players' officials in the NFL and NBA lockouts. Lack of trust means they are less willing to agree on the parameters of provisions and work out the details later (as we saw happen with B-list issues in the other two lockouts, with the NFL and NFLPA agreeing to the concept but not implementation of HGH testing, and the NBA and NBPA agreeing to the same and also to revisit the age limit).

If the NHLPA does decertify or disclaim interest, players would likely file antitrust lawsuits in federal US courts and in courts in Canada.  In February 2012, I analyzed this option for NHL players in an article for MIT Sloan Sports Analytics.  I predicted, and still predict, that players will try to avail themselves of the labor-friendly Ninth Circuit and also courts in the more labor-friendly Canadian provinces:

....if the NHL locks out its players later this year if the NHLPA decertifies — which means that each player becomes independent and can file litigation in a court nearby where he plays — expect the players to file antitrust litigation in a federal court in California or Arizona.  Both states have NHL teams, meaning the league has sufficient nexus to each state to defend itself in court.  More importantly, both states are governed by the U.S. Court of Appeals for the Ninth Circuit, which is regarded as more pro-labor than other federal circuits and which may embrace a view of the Norris-LaGuardia Act favorable to players.  It is also possible NHL players could file litigation in Canada, which features stronger labor laws.

The NHL, for its part, would probably seek to move any litigation to New York, where league headquarters are based and where case law from the U.S. Court of Appeals for the Second Circuit is favorable to its interests.  The league might instead seek to defend itself .... in the Eighth Circuit, which ruled in favor of the NFL.

As we saw in the other two lockouts, there is a less obvious benefit to antitrust litigation: new voices (namely attorneys, like David Boies) join discussions on settling issues of division, and that can play an important role.

Hopefully the NHL and NHLPA strike a deal in the next week or so to save a season.  But if the lockout continues into December and if the NHL cancels the season, players may have to revisit their strategy and the possibility of antitrust litigation.