The Law of Work
  • Home
  • About
  • Professor David Doorey
  • Osgoode Hall LLM
  • Books
  • Guest Contributors
  • Useful Links
    • Archive
  • Home
  • About
  • Professor David Doorey
  • Osgoode Hall LLM
  • Books
  • Guest Contributors
  • Useful Links
    • Archive
The Law of Work
Law of Work Archive

Can the NBA Use Replacement Refs in Toronto?

by David Doorey September 14, 2009
written by David Doorey September 14, 2009

 The NBA season start is just around the corner (GO RAPTORS!), but the collective agreement between the NBA Refs Association (the union) and the NBA expired on September 1st and there is no new agreement in place.  The NBA has indicated that it will ‘lock out’ the unionized refs and begin the season with ‘replacement workers’–refs called up from the minor leagues–if no deal if reached by the beginning of the NBA season.  The bargaining situation is described in this Globe and Mail piece.
Trouble is that the NBA has one Canadian franchise–the Toronto Raptors–who fall under the provincial jurisdiction of Ontario for the purposes of labour law.  Ontario law states very clearly that an employer cannot ‘lock out’ workers and use replacement workers until they have first jumped through a bunch of procedural hurdles, including exhausting a conciliation process run by the Ministry of Labour. (See section 79(2)) Therefore, if the NBA and the union have not utilized the Ontario conciliation process, it would seem to follow that the NBA could not lock out the unionized refs in Toronto Raptors home games.
The same issue arose in the mid-1990s, but that was before Toronto had been awarded a franchise.  In 1995, the NBA locked out the refs (they apparently like this strategy) and attempted to use replacement refs for exhibition games played in Toronto.  The union filed an unlawful lockout application before the Ontario Labour Relations Board.  The NBA argued that it did not employ any refs in Canada because it did not have any teams in Canada and only visited occasionally to play exhibition games.  Even then, the OLRB ruled that Ontario laws applied and that the NBA could not lockout its unionized refs in games played in Ontario.   Here is the 1995 decision.
Now that a permanent franchise is in Toronto, the union’s case would seem even stronger.  The OLRB also rejected league arguments that the union was not a ‘union’ under Ontario law, and that it should not exercise its discretion to order a remedy, since Toronto is only a very small part of the larger collective bargaining relationship governed by U.S. laws.  In other words, if you play regularly in Toronto, you are bound by Ontario employment laws.  A similar ruling was made by the OLRB in the case of the professional baseball referees also in 1995.
Presumably, the NBA is aware of the problem now, since it lost the 1995 decision.  The question is whether any thing has been done about it.   I’m not sure if the parties made any attempt this time to address the situation, perhaps by sending the bargaining parties to Ontario to meet with a conciliator.   I doubt they did.  Does anyone know if the situation has changed so that the 1995 decision would not govern?
This could make for an interesting scenario if no deal is reached.  Would it mean that NBA refs are refereeing only Raptor home games, while every other game is refereed by replacement workers?  Looks that way, doesn’t it.  But what would their terms of employment be given that the collective agreement has already expired?  The most likely answer is that they would be govered by the terms of the expired agreement pursuant to the ‘statutory freeze’ provisions in the Labour Relations Act (Section 86(1))
That section ‘freezes’ the terms of an expired collective agreement during the bargaining process until the parties are in a legal strike or lockout position.  Since the NBA is not in a legal lockout position in Ontario, the freeze would still apply, I think.  Does anyone have a different take on how this would play out?

4 comments
0
FacebookTwitterLinkedinEmail
David Doorey

Professor Doorey is an Associate Professor of Work Law and Industrial Relations at York University. He is Academic Director of Osgoode Hall Law School’s executive LLM Program in Labour and Employment Law and a Senior Research Associate at Harvard Law School’s Labor and Worklife Program. Professor Doorey is a graduate of Osgoode Hall Law School (LL.B., Ph.D), London School of Economics (LLM Labour Law), and the University of Toronto (B.A., M.I.R.).

Leave a Comment Cancel Reply

You must be logged in to post a comment.

previous post
Top 10 Labour & Employment Law Articles (Sept. 12)
next post
When is cursing at your Employer Wilful Misconduct?

You may also like

This Blog Entry is About the Lunacy of...

July 21, 2019

A Cross Country Update on the Card-Check versus...

October 3, 2018

The Folly of Not Voting to Strike in...

September 16, 2018

Unifor Posts Photos of Replacement Workers as Gander...

September 10, 2018

A Wrongful Dismissal Case and the Absence of...

August 29, 2018

China Said to Quickly Withdraw Approval for New...

August 27, 2018

The Latest Hot E-Commerce Idea in China: The...

August 27, 2018

The Trump Administration Just Did Something Unambiguously Good...

August 27, 2018

Unstable Situations Require Police In Riot Gear Face...

August 27, 2018

Trump’s War on the Justice System Threatens to...

August 27, 2018

Follow Us On Social Media

Twitter

Latest Tweets

David J. Doorey🇨🇦 @TheLawofWork@mas.to Follow

Law Prof. Talking #labor & #employment #law to the masses. @YorkUniversity @OsgoodeNews @LSELaw @CLJEHarvard @Jacobin @OnLaborBlog https://t.co/5V9r8VPHsh

TheLawofWork
thelawofwork David J. Doorey🇨🇦 @TheLawofWork@mas.to @thelawofwork ·
47m

Ya, I wrote a blog piece on this, but the sentence itself is ambiguous! Does it mean you CAN join a picket line on your lunch hour, or you CAN’T?

Grammar. But local folks told me they are banning people from picketing at lunch.

🫡 @andreaharrington@mastodon.social @angrycrank

@JohnSandlos @TheLawofWork

Reply on Twitter 1621293270956392452 Retweet on Twitter 1621293270956392452 Like on Twitter 1621293270956392452 Twitter 1621293270956392452
thelawofwork David J. Doorey🇨🇦 @TheLawofWork@mas.to @thelawofwork ·
2h

Put together a quick blog post on a subject we've been discussing on Twitter.

"Is Memorial University Illegally Preventing Workers from Joining Picket Lines?"

What do you think?

https://lawofwork.ca/memorialpicketing/

#MemorialStrike #LabourLaw #FreedomofAssociation #CanLab

Reply on Twitter 1621277482719629312 Retweet on Twitter 1621277482719629312 2 Like on Twitter 1621277482719629312 2 Twitter 1621277482719629312
thelawofwork David J. Doorey🇨🇦 @TheLawofWork@mas.to @thelawofwork ·
6h

STOP MAKING SENSE!

Anthony Francis Dale @anthonyfdale

@TheLawofWork @MemorialU If there is a right to support other employees during non-working time, starting point must be the irrelevance of the fact that lunch is "paid". As Ontario Board said in 1982 Adams Mine case, employer otherwise could prevent exercise of a right by paying money.

Reply on Twitter 1621220629344133120 Retweet on Twitter 1621220629344133120 Like on Twitter 1621220629344133120 3 Twitter 1621220629344133120
Load More

Categories

  • Alberta
  • Artificial Intelligence
  • Australia
  • British Columbia
  • Charter of Rights and Freedoms
  • Childcare
  • Class Action
  • Climate and Just Transition
  • Collective Bargaining
  • Common Law of Employment
  • Comparative Work Law
  • competition law
  • construction
  • COVID-19
  • Diversity
  • Employee Classification
  • Employment Insurance
  • Employment Regulation
  • Europe
  • Financial Industry
  • Fissured Work
  • Freedom of Association
  • frustration of contract
  • Gig Work
  • Health and Safety
  • Health Care
  • Human Rights
  • Immigration
  • Interest Arbitration
  • International Law
  • Labour Arbitration
  • Labour Economics
  • Law of Work Archive
  • Legal Profession
  • Manitoba
  • Migrant Workers
  • Minimum Wage
  • Newfoundland
  • Nova Scotia
  • OLRB
  • Ontario
  • Pension Bankruptcy
  • Privacy
  • Public Sector
  • Quebec
  • Real Life Pleadings
  • Saskatchewan
  • Scholarship
  • Sports Labour
  • Strikes and Lockouts
  • Student Post
  • Supreme Court of Canada
  • technology
  • Transnational Law
  • Uncategorized
  • Unions and Collective Bargaining
  • United States
  • Videos
  • Women and Work
  • Wrongful Dismissal
  • Home
  • About
  • Guest Contributors
Menu
  • Home
  • About
  • Guest Contributors
  • Legal Scholarship
  • Useful Links
  • Archive
Menu
  • Legal Scholarship
  • Useful Links
  • Archive

2020. Canadian Law of Work Forum. All Rights Reserved.