Lockout 2012: NHL files lawsuit seeking lockout to be confirmed legal

Bruce Bennett

The NHL will be taking its show on the road as the venue for its lockout shifts to the court system following the league's filing of two separate lawsuits in response to potential NHLPA decertification.

Send in the lawyers.

In a press release today, the NHL announced the filing of a class action lawsuit in a New York federal court seeking a formal declaration confirming the legality of the league's ongoing lockout of its players. In an equally hilarious move, the league that institutes unilateral lockouts, a salary cap, an amateur draft and free agency restrictions filed an unfair labor practices charge against the NHLPA with the United States' National Labor Relations Board, claiming the NHLPA is negotiating in "bad faith." Here's the full text of the release:

Today, in response to information indicating that NHL Players have or will be asked to vote to authorize the National Hockey League Players' Association's Executive Board to proceed to "disclaim interest" in continuing to represent the Players in collective bargaining, the National Hockey League filed a Class Action Complaint in Federal Court in New York seeking a Declaration confirming the ongoing legality of the lockout.

Simultaneously with the filing of its Complaint, the NHL also filed an Unfair Labor Practice Charge with the National Labor Relations Board alleging that by threatening to "disclaim interest," the NHLPA has engaged in an unlawful subversion of the collective bargaining process and conduct that constitutes bad faith bargaining under the National Labor Relations Act.

Why is this happening right now? Well apart from the obvious advantage of issuing the press release late on a Friday while a pall is being cast by a much larger news story, the NHL is responding to rumors that have been swirling regarding an impending vote by PA membership on decertification. As we discussed last week, if the NHLPA decertifies (or "disclaims interest"), players would have the right to file antitrust lawsuits against the league that could lead to nearly $2.7 billion in damages and/or a lockout-ending injunction.

The move is a clever preemptive strike by the NHL, particularly because it allows litigation to play out in a New York court, which sports labor law experts believe will be more sympathetic to the league's interests. This process is also interesting because it exposes the absurdity of the relationship between the NHL and PA. While many try to draw analogies between the NHLPA and other public or private sector unions, it's just not a comparison that makes a lot of sense. Even aside from the NHLPA being comprised by millionaires while most unions are not, businesses in other industries would salivate at the thought of their employees' union dissolving. The cartel-like NHL (as well as the three other major North American sports leagues), on the other hand, needs the PA to be intact in order to legally justify the myriad restrictions it places on player movement and salary.

Ultimately, though, all that matters is whether this leads to NHL hockey returning any sooner. If last year's NBA lockout, perpetrated by the same law firm that represents the NHL, is any indication, it will. The NBA filed nearly identical litigation when it discovered the NBPA was considering decertification in November 2011, even threatening in the corresponding press release that the 2011-12 season was in "jeopardy." Eleven days later, an agreement was reached and the season was saved.

Here's hoping for a similar outcome to the NHL lockout.

UPDATE: If you have nothing better to do with your Friday night, you can read all 43 pages of the NHL's lawsuit here. Sharks defenseman Douglas Murray and former Sharks Dominic Moore, Daniel Winnik, and Manny Malhotra are among the 36 players mentioned by name as defendants.

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