As Clock Ticks Down, a Closer Look at the NHLPA’s Threat to Decertify

The National Hockey League Players Association is considering the aggressive move of disclaiming interest in representing National Hockey League Players in collective bargaining negotiations with the league. That move would technically end negotiations for a new collective bargaining agreement and open the avenue of anti-trust litigation for the players. Essentially, the NHLPA would be turning over representation of the players to the agents and the attorneys and risk desertion by groups of players that may be adversely affected by anti-trust litigation.

The act of decertification is usually taken by employees that have become dissatisfied with their representation by a labor union. In 2011, both the NFLPA and the NBAPA used the tactic of decertification accompanied with an anti-trust suit to help broker an end to each of their respective lockouts and agreement on new contracts. The dissolution of the union can come through a decertification vote, which would require a vote by players. An election supervised by the National Labor Relations Board could take up to 60 days. Or, dissolution could come through a “disclaimer of interest” by the NHLPA. That simply means that the union itself states it is no longer representing the players in collective bargaining. Legally, that could happen immediately; however, NHLPA rules require approval by two thirds of its members. Voting took place between December 16 and 20; 97 percent of NHL players voted to authorize the NHLPA to file a disclaimer of interest, but the authorization is only good through January 2, 2013.

The NHL has filed an Unfair Labor Practice Charge with the NLRB claiming that the decertification of the NHLPA is engaged in an unlawful subversion of the collective bargaining process and conduct that constitutes bad faith bargaining under the National Labor Relations Act. The NHL is also seeking a declaratory judgment in Federal Court sanctioning the legality of its lock out.

Despite the legal maneuvering, NHLPA Executive Director Donald Fehr says the NHLPA is ready to get back to the bargaining table at any moment.

The decertification of the NHLPA would have the following implications:

  • The NHLPA would no longer be a labor organization and it could not legally bargain for the players. It would likely become a professional association, like the American Bar Association or the American Medical Association.
  • The lockout, restrictions on free agency, the salary cap, revenue sharing, and the draft all become subject to challenge as illegal restraint on trade under antitrust laws.
  • Teams could be faced with the possibility of being ordered to pay treble damages to players that were “victims” of illegal antitrust practices.
  • The league may cancel the season and cease operations to avoid potential antitrust liability.
  • A season played without rules designed to promote a competitive balance among teams, such as the draft, the salary cap, and free agency restrictions would result in a divide between big-market teams and small-market teams with limited financial resources.
  • Without veteran minimum salaries or a salary cap, there would be even greater disparity in compensation among elite and average players.

None of these implications are good for the sport, the fans, the owners, and the players. Why would the NHLPA want to decertify if it poses such a threat to survival of the league as a business enterprise?

The answer to that question is that the NHLPA has no desire to decertify — no union does. The NHLPA hopes that the threat of decertification and antitrust litigation will give it leverage in the negotiation of a settlement. The owners recognize the tactic and have launched pre-emptive litigation intended to provide the league with leverage if it is successful in its effort to block the decertification.

Regular season hockey strategy usually consists of line changes, penalty killing, and when to pull the goalie for an extra attacker. In the playoffs, coaches battle each other with line match-ups, goalie substitutions, and unique line combinations as every goal and every game matters. By threatening to decertify, the NHLPA has taken hockey strategy to a whole new level. Now the owners and players are locked in a game of brinksmanship, trying to force the other to blink at the risk of destroying the game. It is at times like this that saner heads usually prevail. With a new offer on the table from the league as of today, let’s hope so!

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