Employment Law, Negotiation, and the Business Environment: A Cooperative Collective Bargaining Negotiation of the National Hockey League Lockout of 2004

• Author: Corey A. Ciocchetti
• Published date: 01 February 2008
• Date: 01 February 2008
• DOI: http://doi.org/10.1111/j.1744-1722.2008.00049.x

Employment Law, Negotiation,

and the Business Environment:

A Cooperative Collective Bargaining

Negotiation of the National Hockey

League Lockout of 2004

Corey A. Ciocchetti

n

I. INTRODUCTION

w

Employment law is a ‘‘must-cover’’ subject in business environment cours-

es. The vast majority of enrollees will cease their legal studies upon com-

pletion of this course but soon encounter legal quandaries upon landing

their first job. Students without basic knowledge of employment contracts,

discrimination law, wage/hour/leave regulations, and workplace privacy

will find themselves at a distinct disadvantage in these employment rela-

tionships. Comparing the plethora of topics requiring coverage with the

limited time devoted to employment law during a typical academic term,

other important employment subjectsFsuch as negotiation and collective

r2008, Copyright the Author

Journal compilation rAcademy of Legal Studies in Business 2008

127

Journal of Legal Studies Education

Volume 25, Issue 1, 127–182, Winter/Spring 2008

n

Assistant Professor, Business Ethics and Legal Studies, Daniels College of Business, Uni-

versity of Denver; J.D., 2002, Duke University School of Law; MA (Religious Studies), 1999,

University of Denver; BA (Economics); BSBA (Finance), 1998, Universityof Denver; Member,

Colorado Bar.

Thanks to Jillian Ciocchetti for her continual encouragement and her dedication to

improving my teaching, to the students at the University of Denver who diligently helped

me iron the wrinkles out of this exercise, and to the Academy of Legal Studies in Business

(especially Jordan Halgas) for organizing the wonderful 2006 Master Teacher Symposium.

w

Please note that the appendices, designed to help professors implement this exercise in their

classes, are located online at http://www.daniels.du.edu/EthicsPublications.aspx.

bargainingFcommonly receive short shrift.

1

This article offers a creative

solution designed to cover these oft-omitted topics with maximum effec-

tiveness and within a brief period of time.

2

The following discussion utilizes a student-led collective bargaining

negotiation as a vehicle to: (1) cover management and labor issues within

the professional sports environment (specifically, the National Hockey

League Lockout of 2004–05) and apply lessons to the broader workplace;

(2) teach valuable negotiation techniques; and (3) provide insight into an

interesting, formidable, and real-world business issue. From a pedagogical

standpoint, the goal of the exercise is for each student to: (1) understand

that the collective bargaining issues/regulations they discover apply

equally to negotiations at the factory down the road, (2) improve team-

work skills, (3) test strategies tailored to achieve objectives effectively, (4)

improve critical thinking and public speaking skills, and (5) appreciate

the ethical implications of a real-world business/legal dilemma.

Additionally, this exercise forces students to deal with authentic financial

1

Due to the plethora of relevant employment law topics and ever-evolving case law, I find

myself time-limited when scheduling collective bargaining issues into a course specifically

dedicated to employment law.

2

There are a few relatively recent articles dealing with collective bargainingin the professional

sports context. See, e.g., Sharlene A. McEvoy, The Legal Environment of Baseball,12J.LEGAL

STUD.EDUC. 197 (1994) (discussing legal issues arising in the professional sports environment

Fincluding collective bargaining and mentioning the possibility of a collective bargaining

negotiation exercise). The American Business Law Journal published an issue devoted to sports

law.See AM.BUS.L.J. Vol. 35, Issue 2. Although none of the articlesin this special volume cover

collective bargaining or negotiation, there is an interesting article questioning whether sports

officials are independent contractors and another discussing the regulatoryscheme for player

agents in the National Football League (NFL). There are also relevant articles dealing with

negotiation in general as well as negotiation exercises in undergraduatebusiness environment

courses. See, e.g., Mark Lampe, A New Paradigm for the Teaching of Business Law and Legal En-

vironment Classes,23J.L

EGAL STUD.EDUC. 1, 27–29 (2006); Susan Denbo, Contracts in the Class-

room–Providing Undergraduate Students with Important ‘‘Real Life’’ Skills,22J.LEGAL STUD.EDUC.

149 (2005) (discussing the importance of negotiation skills); Judith Stilz Ogden & Mary Ellen

Benedict, What’s On Your Mind? A Negotiation Role-Play,18J.LEGAL STUD.EDUC . 307 (2000)

(presenting a student negotiation exercise dealing with an intellectual property dispute where

the groups draft a settlement agreement); Peter J. Shedd, Let’s Make a Deal: To Sign or Not to

Sign,14J.L

EGAL STUD.EDUC. 87 (1996) (discussing negotiation of a marketing contract); Anna

S. Rominger, Negotiation: An Idea Whose Time Has Come,13J.L

EGAL STUD.EDUC. 101 (1995)

(discussing the utilization of negotiation to settle disputes); Marlene E. Barken, Integrating

Contract and Property Fundamentalswith Negotiation Skills: A TeachingMethodology, 9 J. LEGAL STUD.

EDUC. 73 (1990) (setting up an exercise whereby students negotiate and draft a real estate

purchase agreement).

128 Vol. 25 / The Journal of Legal Studies Education

information and realistic consequences stemming from their actions at the

bargaining table.

At the outset of the exercise, half of the student teams are assigned to

the National Hockey League (NHL) Board of Governors (BOG) to rep-

resent individual club owners (Owners). The remaining teams are assigned

to the National Hockey League Players Association (NHLPA) to represent

unionized NHL players. Students are assigned a series of background

readings

3

FParts II through IV of this articleFcovering the collective

bargaining process, negotiation strategies, and a brief history of the NHL

and the 2004–05 lockout. Throughout a series of three negotiations and

debriefings, students are forced to compromise and adopt effective nego-

tiation strategies to obtain a successful outcome and avoid the disruption of

a continued lockout. At the end of the day, the parties either sign a mem-

orandum of agreement (MOA) consummating a new collective bargaining

agreement (CBA) or part ways with a continued lockout to deal with in the

future.

This article proceeds in five parts. Part II describes laws

governing the collective bargaining process; this section also categorizes

and analyzes four hot-button issues in contemporary collective bargaining

negotiations. Part III focuses on negotiation by identifying and discuss-

ing the six primary stages of a typical collective bargaining negotiationF

including specific examples from the professional sports conte xt. Part IV

introduces the NHL and its labor history and addresses the pertinent

events leading to the 2004–05 lockout; this section also demonstrates

the negotiation exercise by running through the activity in step-by-step

detail.

4

Part V summarizes the resolution to the real-world lockout

and presents ideas for applying the exercise to other professional sports

dealing with expiring CBAs.

3

Parts II, III, and IVeach contain a thorough essay written in a law review format; each essay

is distributed to students one class period prior to the negotiation exercise as a background

reading assignment.

4

This exercise is designed to be plug-and-play and, therefore, specific exercise materials are

included as appendices to this article. See Appendices A–E, available at http://www.

daniels.du.edu/busethics/publications.cfm. Professors utilizing this activity are encouraged

to contact me at cciocche@du.edu with any specific questions or comments.

2008 / Employment Law, Negotiation, and the Business Environment 129