More Unnecessary Litigation in 2012 Lockout, "If the Glove Don't Fit..." >

Tuesday, Dec. 18, 2012

The lockout's reached its ultimate unnecessary stage. All of a sudden, instead of focusing attentions on getting a deal done, both sides are too involved in litigation. It's like the OJ Simpson case meets the corruption of Wall Street, only the murder victim is the game of hockey.

For a month now, the NHLPA's been threatening to decertify, which, in a nutshell, refers to the players voting to no longer have the NHLPA represent it. It is a very long process which requires many legal actions. The development of decertification is just as boring as the word itself. To save you from reading a dozen paragraphs explaining what it is, just know that by decertifying, the CBA rule protecting the NHL against antitrust lawsuits may no longer apply and Players are now free to sue the NHL for antitrust violations. [Macramalla]

Why would the Players do this? They'd hope that the threat of antitrust litigation will pressure the NHL to settle on more favorable terms. [Macramalla]

See? Just enough to put you to sleep.

Luckily for the fans, the Players have disposed of this idea and have gone with its much quicker cousin; Filing a Disclaimer of Interest. 

Wait, what?

TSN Legal Analyst, Eric Macramalla, puts it this way --

"While decertification is the players walking away from the Union, a disclaimer of interest is the Union walking away from the players. So a disclaimer of interest occurs when the Union terminates its right to represent the players. It's also a less formal process than decertification. It can be as quick as Donald Fehr sending a letter to the Commissioner's office declaring the NHLPA no longer represents the players as a bargaining agent. There's no vote, no petition and no decertification election."

Macramalla goes on to explain that although the two processes are named differently and run along different, yet similar legal tracks, the result is ultimately the same thing; the Union would no longer represent the Players, and the Players are free to file suits against the League.

This could all just turn out to be a scare tactic by the Players, but it seems the League is armed and ready to play their games. 

In efforts to strike first, the NHL's filed a lawsuit in New York (their home turf) against the NHLPA, asking that the court recognizes the lockout as a legal action. See, if the Union no longer represents the NHL Players then the Players have the ability to prove the lockout to be illegal. 

How would it be illegal?

The CBA protects the Owners, in a sense, from antitrust violations. Since each Owner is a competitor to the other, it'd be unlawful for competitors to get together and fix the marketplace. [Macramalla] Getting together and fixing the marketplace, in this case, would be the NHL's decision to lockout the Players. 

But without an NHLPA there'd be no collective bargaining agreement. Without a collective bargaining agreement there'd be no "protective bubble" shielding the NHL Owners from antitrust violations.

Christ, I hope I haven't lost ya. I know, I know, this stuff is torture to read. But I hope I'm putting it quickly and easily enough that it gives you some general understanding of what's going on currently. 

By filing a lawsuit against the Players' Union, the NHL is out to achieve two things; 1) If the Union does disband, the League wants to make sure they get the lockout legalized before this really becomes a mess. And 2) They're asking the court -- should the NHLPA Disclaim or Decertify -- for every single Player under a NHL contract to become (basically) a free agent.

Yes, you read that correctly. By decertifying or dislaiming, each Player is risking voiding his contract with his respective NHL Club. [Macramalla]

Claude Giroux? Free agent. Sidney Crosby? Free agent. Pavel Datsyuk? A Philadelphia Flyer....

....okay, I may have made that last one up. Yes, that sick, dangling sorcerer would become a free agent as well. It'd be freelancing anarchy. What would follow would make July 1st (Free Agency Frenzy Day) look like a garage sale in a suburban cul-de-sac. 

What's the Players' reaction to this? No, not caving in to the Owners. They've decided to vote on whether they'll be represented by a Professional Trade Association in case they do disclaim or decertify.

Hold on there, chief. What the hell is this now?

A trade association is defined as an association of organizations in the same trade formed to further their collective interests, esp in negotiating with governments, trade unions, etc. [Free Dictionary]

This would obviously give the Players their leverage against the NHL's request to void their contracts. 

Once again, this may all be a ploy to get a deal done by one side caving in quicker than the other. The NBA experienced the same thing in last summer's NBA lockout and it wound up striking a deal in an 11-day turnaround. Though in the NHL lockout's case, there's a catch....


I cannot stress enough how ego has become the key barrier in this labor dispute. Currently the two sides are separated by less than a few concessions. The League wants a 10-year agreement with an 8-year opt out clause, while the PA wants an 8-year CBA. The League wants a 5-year maximum on all Player contracts, 7-years if they're re-signing with their current Club. The Union ain't too hot on that either. 

It seems the hockey-related revenue issue has been put to rest, and all that remains are contractual dilemmas. Is it worth losing an abbreviated season over? Most experts agree that it isn't, and there'll be a 48-game schedule underway as early as the end of January. But when you have two sides who are ready to carve off their own noses to spite their face, where's the room for optimism?

So, what now?

With both parties hiding behind their legal desks, it's been all quiet on the western front. No more meetings have been scheduled. Instead we're stuck with each executive representative speaking through the press like this is some immature playground affray.

Deputy Commissioner Bill Daly said"We obviously would prefer that the Players return to the bargaining table at the earliest possible date to see if there is a deal to be done.

"Ultimately, a deal will have to be agreed to, regardless of the forum. I suppose it is ultimately up to them to choose what forum that will be, but the Union pretending its not a Union anymore certainly isn’t going to expedite things."

Donald Fehr came back with, "There is no need for the players to return  to the table because the players have never left. It was the owners who indicated last Thursday that they had nothing more to say right now. We are ready to bargain whenever they are."

When these two stooges are through measuring their beaver-cleavers, perhaps it'd behoove them to push the mics out of their faces and physically return to the bargaining table. There was more time to burn before litigation stuck its nose in the picture, but now because each side wants to take a stand in this staring contest......time has certainly had a fire lit under its ass. 

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