Visa Regs May Prevent NHL Replacements

May 23, 2005
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(Editor’s note: This is the first story in a two-part series examining labor issues with respect to the National Hockey League.)

GRAND RAPIDS — After the league pulled the plug on the season in February, National Hockey League Commissioner Gary Bettman indicated the 30 ownership groups wouldn’t rule out using replacement players for the upcoming season if they were unable to reach a timely collective bargaining agreement with the National Hockey League Players Association.

Since then, though, Bettman has toned down his rhetoric about using replacements, instead citing his serious intent to get a deal done with the NHLPA.

But trying to create a more harmonious negotiating aura between the league and the association may not be the only reason the commissioner has kept fairly mum about hiring replacements, as doing so could drastically alter the basic economics of the game and potentially leave owners of U.S. franchises with higher player payrolls than they went to war with the union over.

Should the league decide to skip a CBA with the NHLPA and jump ahead with NHL players willing to cross a picket line and minor leaguers, owners of U.S. franchises could very well find themselves only being able to hire American players — who are a small percentage of NHL-caliber players. Canadians and Europeans could be off limits to owners like Mike Illitch, who has held the Detroit Red Wings since 1982, all because of a visa regulation in the U.S. Immigration and Naturalization Act.

Top-notch, professional foreign athletes are allowed to work in this country under two visa programs. One is the O-1, which is for the elite cream of the crop — the athlete with extraordinary ability. The other is P-1, which is for highly skilled athletes and is the category that allows almost every foreign player to ply his trade in the NHL.

Neither program has a limit on the number of visas that can be issued each year. But both carry a clause that can shut both programs down completely during a labor dispute, like the ongoing lockout between the NHL and the NHLPA.

“Both of those provisions of the Immigration and Naturalization Act do have a clause concerning the effect of a strike or a labor dispute. And a lockout under common parlance, which is what the NHL has right now, would meet that definition of a labor dispute,” said John Koryto, an immigration attorney and partner at Miller, Johnson, Snell and Cummiskey.

“The Secretary of Labor needs to certify to the commissioner of the U.S. Citizenship and Immigration Services that a strike or other labor dispute involving a work stoppage is in progress in the occupation and that the employment of the beneficiary, which refers to the foreign nationals that are being brought in, would adversely affect the wages and working conditions of U.S. citizens and lawful resident workers,” added Koryto.

The clause, found in subparagraph 14 of the O-1 and subparagraph 16 of the P-1 visa regulations, would bar Canadian and European players from gaining employment with U.S. franchises once the labor secretary notifies the USCIS commissioner.

“My understanding is the lockout is about the salary cap; it’s the major sticking point. If players are allowed to come back to the states to play, (the salary cap) would inevitably have an adverse effect on the salaries of the U.S. workers,” said Koryto.

The players association wouldn’t hesitate to notify Labor if the owners decided to hire replacements, which could trigger Labor’s notice to USCIS. In fact, the visa regulation calls for consultation with a union, if one is involved, to confirm that an individual player is “of sufficient international acclaim” to warrant a work permit. That means the law doesn’t let an owner simply sidestep a union to hire a foreign player.

“No P-1 visa could be obtained without notifying the union that a visa was being sought for a named player. So if you had people who were not household names who are trying to break into the league, the union would have a basis at that point in time, irrespective of what the Secretary of Labor would do, to contest just the underlying qualification as a professional athlete, which would also give them the notification they would need to take that a step farther to argue for the Department of Labor to intervene,” said Koryto.

“I think that would be the triggering mechanism.”

If Canadians and Europeans aren’t eligible for employment in the U.S., the economic structure of the NHL could be turned on its head because of the overused, but still reliable, economic theory of supply and demand.

Next week: How replacements could impact the league’s economics.    

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