Lockout 2012: To decertify or not to decertify

Bruce Bennett

With negotiations seemingly at a standstill once again despite the sides being less than a podium's length away from each other, we look at the impact NHLPA decertification could have in ending the lockout and preventing future work stoppages.

Despite the heightened theatrics and vitriolic rhetoric that was on display last night from both the league and players' association, it's clear at this point that their disagreements are being grossly exaggerated by their posturing. If it was ridiculous that the lockout had gone on this long, it's downright absurd that we aren't preparing for training camp right now given how virtually identical the sides' standing proposals are. The only tangible differences in their demands are that the NHL wants a five-year limit on contract length while the PA wants eight years and the league wants a ten-year collective bargaining agreement (with the option to terminate after eight) while the union wants an eight-year CBA (with an option after six).

These aren't disputes that should be holding up a season. But when the PA has relented on every single issue it's understandable, if frustrating, why they would refuse to bend even further backwards for the league. Particularly when the NHL seems content to move the goalposts of this discussion every time the sides seem close to an agreement. Oh, you're finally willing to cede 50% of hockey-related revenue? Well, don't expect us to honor existing contracts. Oh, you're content with an extra $100 million in "make whole" money? Too bad, contract term limits are now the "hill we die on."

It's childish and emblematic of a league far more concerned with breaking the union as they did during the 2005 work stoppage than ensuring we have as much NHL hockey this season as possible. Which is why the players should seriously consider flipping the negotiating table and raising their collective middle finger at Gary Bettman and league ownership. Decertification is often talked about as the nuclear option but, if committed to by the players' association, it could save the season sooner than these fruitless negotiations will and, better yet, prevent future lockouts from occurring.

Under U.S. labor law, the players cannot levy an antitrust lawsuit against the NHL for collusive and unfair labor practices (practices that include this unilateral lockout but could also extend to things like the salary cap and entry draft if they so choose) while being members of a union themselves. Thus, decertifying the union (or "disclaiming interest") would allow them to file such a suit. University of Georgia professor and sports labor law expert Nathaniel Grow has written and been interviewed about this process quite a bit and explained the NHLPA incentive for decertification to James Mirtle of The Globe and Mail last month:

I thought I saw one estimate that the players were losing something like $10-million per day. If you use that as a ballpark, if they’ve missed 70 days, you’re talking about $700-million times three; that’s a huge number potentially. There’s leverage for the players.

The No. 1 thing they would shoot for presumably would be to end the lockout [using a preliminary injunction]. Even if they don’t get that, long term, they still have that threat of the antitrust legislation and the triple damages hanging over ownership.

Today is the 82nd day of the lockout. Assuming that $10 million figure is accurate (it seems high but it is congruent to the league's claim that it loses $20 million of revenue a day), the league could owe as much as $2.5 billion in damages to the PA. Of course that's not something that will be decided on imminently but the mere threat of triggering a penalty of that amount should finally give the players' association some leverage in these negotiations.

But it's the prospect of a court awarding the preliminary injunction Grow refers to that is the most intriguing. Post-decertification, the players would likely seek to pursue litigation under the United States Court of Appeals for the Ninth Circuit which is considered the most labor-friendly in the country and governs nine states, two of which have NHL teams: California and Arizona (on a side note, how hilarious would it be if they do file in Arizona? The existence of Bettman's pet project of a team would play a part in his side's downfall).

The move is not without precedent. While sports unions had been reticent in the past to resort to decertification during CBA negotiating, it's obvious now that union protections like health insurance and player pension aren't high on anyone's list of priorities during a lockout. During their lockouts last year, both the NFL and NBA players' associations filed for decertification which had extremely positive results in ending the respective work stoppages, as Grow explained in his paper on the two unions' negotiating strategies:

Indeed, the NFL players did not even hesitate to dissolve their union, preemptively disbanding the NFLPA and filing an antitrust suit against the league hours before their CBA expired and the owners’ lockout commenced. The litigation provided the players with leverage over the NFL owners, ultimately helping them reach a mutually agreeable resolution of their labor dispute well before the scheduled start of the league’s regular season. Meanwhile, although NBA players were more hesitant to break up their union, their ultimate decision to dissolve the NBPA quickly enabled them to reach a more favorable agreement with ownership.

It's the example set by the NBPA that seems most relevant to the quagmire hockey currently finds itself in. Just eleven days after decertifying and filing an antitrust lawsuit in a California federal court, basketball's union was able to force the hand of ownership and receive a favorable deal.

Whether decertification of the NHLPA would have the same result is impossible to tell but it would certainly grant the players more leverage than they have ever had and perhaps convince the owners to change their negotiating strategy when the next work stoppage is inevitably set to roll around. This neverending cycle of NHL lockouts is not going to be broken unless players send a message to league ownership that they aren't messing around. Contracting rights just doesn't seem like much of a hill to die on when Donald Fehr is holding a match to a much larger hill comprised by two and a half billion dollars of your money.

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