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NFL Open Season with Scab Refs, But Can Scabs be Used in Toronto Games?

The NFL season opens tonight, and there will be scab workers on the field.   Earlier this summer, the NFL locked out its referees and no new collective agreement has been reached.  So the league has decided to start the season with replacement referees.  This story explains how the players are not happy about this, not only due to concerns about poor quality, but also for fear of injuries.

NFL Can't Use Scab Refs in Bill's Toronto Games

Whenever there is a lockout in pro sports, a fun issue in labour law arises.  Since the major pro leagues are based in the U.S., the collective bargaining is conducted pursuant to American labor law.  The NFL lockout of the refs is lawful in the U.S., because the NFL complied with the American laws regarding lockouts.  The NFL has not however complied with Ontario labour laws, so the lockout would be unlawful insofar as it applied to a franchise in Ontario.  When the NFL comes to Canada, it must abide by Canadian labour laws.

There isn’t a Canadian NFL franchise, but the NFL does play regular season games in Toronto.  This year, the first Buffalo Bills game at the Rogers Centre is December 16th, against Seattle.  That’s a long time away, and almost certainly there will be a deal with the refs before then.

But if not, then the NFL might have a problem.  It cannot lockout referees in Toronto and replace them with scab refs, since under Ontario law the lockout is unlawful.  An employer can only lockout workers in Ontario if it first had hopped through a series of legal hoops, including exhausting mandatory government conciliation.  An almost identical situation arose in 1995 during an NBA lockout of referees, before Toronto had a franchise.  The Labour Board ruled that the lockout was illegal in Toronto, and that the NBA could not use replacement refs in an exhibition game played here.  Here is the NBA refs decision. Similar rulings have been issued in cases dealing with lockouts in Major League Baseball and the NHL.  It might seem odd that a league would be required to reinstate a team of lockout out referees for one game, but that it the obvious remedy if a complaint is brought to the OLRB and a finding that the lockout is unlawful in Toronto is made.

Questions for Discussion

In fact, the Labour Relations Act grants the OLRB discretion on whether to issue a remedy in the case of an unlawful lockout (see section 101 of the OLRA).  Do you think the OLRB should simply declare the lockout unlawful, but then allow the NFL to nevertheless use replacement refs for the single Toronto game?

Is it sensible for Ontario law to trump American law when only one game is played in Canada?

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