Have to admit it, I don’t really follow Major League Soccer all that closely. I played lacrosse growing up, and I didn’t have time for soccer. I did live directly between Arsenal and Tottenham though when I was doing my LLM in London and picked up a taste for the excitement of the Premier League. Arsenal won everything that year. Go Gunners! I digress. I didn’t notice that the MLS referees had been locked out to start the 2014 season until I received a note from an Oregon labour lawyer asking me how the league could use replacement refs last weekend for the Vancouver Whitecaps game. My response was, huh?
It’s a good question, for two reasons. Firstly, employers are restricted from using replacement workers during a lockout in British
Columbia. Secondly, in all cases where American-based professional leagues lockout players or officials at Canadian venues, the question arises whether they have first complied with Canadian labour laws governing lockouts. So, for example, the NBA lock out its referees in 1995 was found to be illegal in regards to games in Toronto, because the preconditions for a legal lockout in Ontario had not been satisfied. Here is the NBA referees decision.
Ontario law imposes a series of conditions before an employer can lockout employees. These include a requirement to request and then exhaust mandatory government conciliation, and then to wait a period of time from the issuance of a letter from the Minister of Labour advising that no more conciliation will be required (a ‘no board report’). Here is the key language from the Ontario legislation (section 79):
79. (2) Where no collective agreement is in operation, no employee shall strike and no employer shall lock out an employee until the Minister has appointed a conciliation officer or a mediator under this Act and… (b) fourteen days have elapsed after the day the Minister has released or is deemed pursuant to subsection 115 (3) to have released to the parties a notice that he or she does not consider it advisable to appoint a conciliation board.
The same issue arises in relation to Vancouver and Montreal games. Each province has rules about when a lockout it legal. The fact that a lockout might be lawful under American law doesn’t mean we ignore Canadian laws when the employees are working in Canada.
In British Columbia, the law also prohibits employers from hiring replacement workers to do the work of locked out workers. That prohibition appears in Section 68 of the Labour Relations Code. For an example of how this section works, check out this decision, in which a sports organization was found to have illegally used replacement workers during a lockout. This raises the obvious question: How was it lawful for replacement referees to be used in last weekend’s Vancouver Whitecaps game in Vancouver?
As far as I can tell, the referees union (Professional Soccer Referees Association) bargains with an entity called PRO (Professional Referee Organization), and not the MLS. This is a twist from the normal arrangement in pro sports, where the refs are employed by the league itself. I’m not sure about all the details, but it appears that PRO assigns the referees to games. I assume (but don’t know for sure) that MLS has a contract with PRO to supply referees. If anyone knows more about this, let me know.
Would the fact that the referees are employed by a third party and not the MLS make a difference to the legal treatment of a lockout in Canada? Does this twist get PRO around the prohibition on using replacement workers in British Columbia? Could PRO argue that it is not really locking out the refs in Canada, it is just not assigning them to games in Canadian cities? What do you think?
I am a little surprised that the Union has not brought illegal lockout applications to the Canadian labour boards (unless they have, and I’m just unaware). Or perhaps the Union knows the Canadian law, but just doesn’t see any benefit in stopping replacement referees in only three cities. Or, could it be that the employer actually did go through conciliation in the Canadian provinces? That wouldn’t explain the use of replacement workers in B.C., but it would at least make the lockout itself unlawful in Canadian provinces.
If anyone has any greater knowledge of the situation than do I, please pass it along. We will keep out eye on this situation.
Issues for Discussion
If the Union could obtain rulings from the three Canadian labour boards banning the lockout of referees in Vancouver, Toronto, and Montreal, do you think that would be a useful strategy in their dispute with the employer?
What do you think the remedy would be if the lockout is ruled unlawful in those cities?