Saturday, 24 November 2012

NHL Decertification Talk Heats Up

Following up on Michael McCann's post from Monday, talk of a potential decertification of the National Hockey League Players' Association (NHLPA) heated up this week.  After the NHL owners rejected a new union proposal on Wednesday, the players have increasingly appeared willing to dissolve their union in order to pursue antitrust litigation against the league (see this report by James Mirtle).  In fact, on Thursday, Buffalo Sabres goalie Ryan Miller publicly endorsed the decertification strategy, in the process calling out the NHL's outside legal counsel, the Proskauer Rose firm, by name. 

Given the increased possibility that NHL players will dissolve their union, several Sports Law Blog contributors have been interviewed in the past few days to discuss the procedural steps involved in a potential decertification of the NHLPA, as well as the strategy's likely impact.  In particular, Gabe Feldman answered some decertification questions for CBC, and Michael McCann discussed the issues with Canadian Business magazine, while I spoke to the Globe and Mail.  Here's a excerpt of my discussion:
Let’s start with the basics. Why might decertification make sense for NHL players here?

A. There’s kind of a benefit and a drawback. There are some protections you get under labour law when you’re in a bargaining situation like this. By having a union, the players under U.S. labour law get protection against the owners committing certain unfair labour practices.

So they get some benefits out of the unionization, but the downside is you can’t then file an antitrust lawsuit against the ownership while you’re still engaged in that collective bargaining relationship.

The trade off is do we want to have union protections or would we rather dissolve the union and pursue antitrust remedies. You can’t have your cake and eat it, too. You have to pick.

From the perspective of why is it a good thing to do now: The main benefit is probably leverage... If we file an antitrust lawsuit, it adds uncertainty for the owners. If this lockout gets declared to be a violation of U.S. antitrust law then the players’ damages are going to be tripled.

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.

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