Written by David Doorey
This afternoon, a group of NBA teams announced that they were “boycotting” their scheduled playoff games. It remains to be seen as I am writing this whether the Toronto Raptors will boycott their game tomorrow night against the Boston Celtics, but my guess is they will. The players call it a boycott, but really what is happening here is a strike–a collective refusal to perform their job. But is it an unlawful strike?
This (hastily) written post walks through some of the issues. Comments welcome.
I will leave the analysis of the application of US labor law to the striking players on US based teams to my American colleagues. For our purposes, let’s zero in the Toronto Raptors, the only Canadian team left in the NBA. Let’s acknowledge too at the outset that it is unlikely that the Toronto Raptors organization or MLSE (the owner) would bring a legal proceeding to challenge the strike, because the players have the overwhelming weight of public support and even the NBA likely supports the strike or at least will talk the talk and not make this a legal battle. (Although it is worth noting that if the protest takes out the entire playoffs that would mean a lot of people lose a lot of money, which can create a motive for someone to take legal action against the strikers).
These games are taking place in Florida, which adds an unusual twist to the discussion. We have employees governed by the Ontario Labour Relations Act presently working out of jurisdiction and engaging in a strike. I confess that I have never come across a case involving Canadian employees striking while covered by a collective agreement while on assignment outside the country. There likely are such cases, but none are jumping to mind right now. There was a case involving an illegal lockout by the NBA of its unionized refs in Ontario and by the National Baseball League of its umpires. But those lockouts were of employees working in Toronto. I will ponder the significance of the location of the strike in greater depth, but for the purpose of this quick post, let’s assume that Ontario law governs to the actions of the Raptors’ players.
Would a strike by Toronto Raptors to protest policy killing and violence in the US but also Canada be unlawful?
The quick answer is yes, almost certainly that strike would be illegal because Raptors players are covered by a collective agreement and in Ontario, pursuant to Section 79 of the LRA, any strike that takes place while a collective agreement is in effect is unlawful. This of course assumes that a refusal to play a basketball game is a “strike”. In Ontario, it clearly is. Read the definition of “strike” in the OLRA:
“strike” includes a cessation of work, a refusal to work or to continue to work by employees in combination or in concert or in accordance with a common understanding, or a slow-down or other concerted activity on the part of employees designed to restrict or limit output;Section 1, Ontario Labour Relations Act
That is known as a non-motive strike definition. It doesn’t matter that the reason for the refusal to play is to protest police brutality and racism. Any collective refusal to work is a “strike” in Ontario. There’s lots of cases in which workers who skipped work to engage in collective political protests were found to be engaged in unlawful strikes.
The non-motive strike definition in the Ontario legislation is common in Canada, but not universal. Consider in contrast the definition of “strike” found in section 1 of the Alberta Labour Relations Code:
(v) “strike” includes
(i) a cessation of work,
(ii) a refusal to work, or
(iii) a refusal to continue to work,
by 2 or more employees acting in combination or in concert or in accordance with a common understanding for the purpose of compelling their employer or an employers’ organization to agree to terms or conditions of employment or to aid other employees to compel their employer or an employers’ organization to accept terms or conditions of employment;
Alberta (along with Manitoba and Nova Scotia) have motive-based strike definitions, requiring that the reason for the work stoppage be to apply collective bargaining pressure on the employer. As a result, a work stoppage to protest police racism in those provinces would not fall within the definition of a “strike”. Workers employed in those provinces who left work to protest police brutality might be breaching their collective agreements, which require them to report to work when scheduled, possibly subjecting them to discipline, but they would not be engaged in an unlawful strike in violation of statute.
So there’s good reason to believe that the Raptors’ players would be engaged in an unlawful strike if they refuse to play their game(s) against the Boston Celtics as protest against police racism and brutality. In theory, an unlawful strike that causes financial damage can result in a damages order against individual strikers and their union, depending on the circumstances. I doubt that it would ever come to that. More likely is a press release from the Raptors’ organization supporting their players and their “protest”, a rare instance in which an employer would not exercise its legal right to bring the weight of the law crashing down on an unlawful strike.
David Doorey, “Are NBA players engaged in an unlawful strike? It depends” Canadian Law of Work Forum (August 26 2020): http://lawofwork.ca/?p=12957