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Strikes and Pro Sports in Canada, Again…

by David Doorey March 18, 2010
written by David Doorey March 18, 2010

Go to fullsize image My soccer hooligan neighbour (ok, he’s not a hooligan, he’s just, er, enthusiastic) is all in a tiff because the Toronto FC season may not start next week due to a labour dispute, a strike.  Last week, the players voted almost unanimously to strike if a deal is not reached before the start of the season on March 25th.
This raises, yet again, the issue of whether a Canadian franchise of a North American sports league is bound by Canadian labour laws.  This issue has come up already in regards to the NBA, the NHL, and Major League Baseball.  Here’s a post I did earlier on the NBA lockout of referees.
In Ontario, it is unlawful for workers to strike unless they first jump through a number of legal hurdles, including exhausting conciliation (like mediation) with a government imposed conciliator.  This requirement is here, in Section 79(2) of the Ontario Labour Relations Act. The employer (Major League Soccer) and the union have been going through conciliation in Washington with an American conciliator under American law.  Read Section 79(2).  Do you think the American-bases conciliation satisfies the requirements of the section?
Does section 79(2) mean that the employer and the union would need to go through an additional conciliation process in Ontario in order to for a strike by Toronto FC players to be lawful?
In theory, if the Toronto FC players strike illegally, the union could be liable for lost revenues due to the unlawful strike. That possibility is found  in Section 103 .  In practice, though, what would that lost revenue be?  Games will be cancelled, so there will be lost gate, parking, concession stand revenues.  But even if the Toronto FC players didn’t strike, those losses would be incurred, since the other team would not be coming to the game, since their players would be on lawful strike (under US law).  Is that right?
Here’s a fun question for labour law students:  What if the Toronto FC players don’t strike, since they are not in a legal strike position under Ontario law.   The employer can’t lock them out, because a lockout requires the same steps be taken as required for a strike, and those steps haven’t been taken.  So would the Toronto FC players be entitled to just show up for work during the strike and demand to be paid, even though there is a  strike happening in the rest of the league?  Could the Toronto FC players be laid off by the employer, since there would be no work for the players (no games)?  If so, would they be entitled to employment insurance benefits during the lay-off?  Read Section 36 of the Employment Insurance Act: does this disqualify a worker who is laid off because of a strike, when it is not the worker who is on strike?  If so, doesn’t that disqualify the people who sell beer too, who will also be laid off presumably if there are no games?  Would that be fair?  What does section 36(4) mean?   hmmmm
Gotta love labour law …

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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.).

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