In the last 24-48 hours, "decertification" has become the big buzzword
in NHL Labour Craziness 2012. I was a month away from writing my LSATs in 1994, but never had to (thank God), so this is far out of my expertise.
But it's a belt-high fastball for Gabe Feldman. He's a professor at Tulane University's law school and director of its sports law program. (He can be found on twitter @SportsLawGuy
Desperate reporters seeking clarity on legal issues repeatedly turn to Feldman, as shown by this piece he did for grantland.com
when the NBA's players started down this path one year ago.
The basic knowledge you need is that, in the United States (where any process would begin) all employees have the right to either labour law or anti-trust law. By having a union negotiate a collective bargaining agreement for them, the NHL players chose labour law. Decertifying the NHLPA would allow them to switch. Easy first question: Why would it benefit players?
"The benefit is that it may give players additional leverage in negotiations," Feldman said. "By dissolving the union, the players will have chosen anti-trust law over labour law. They can file an anti-trust lawsuit claiming the lockout as an 'illegal group boycott.'
"With the union in place, the owners had the right under labour law to lock them out. Once the union is dissolved, that lockout becomes a group boycott... a decision made by each owner to not hire players and not to pay them."
Any damages won under anti-trust law are tripled. (That's not always great. When the NFL lost in court to the ill-fated United States Football League in 1986, the award was one dollar. So the USFL got $3.76 -- the extra money for "interest during litigation.")
But it's possible owners would be very nervous about "locking out the players and racking up treble damages every day," Feldman said.
OK, what are the downsides for the players?
"There are a few downsides," Feldman said. "The basic downside is the players lose protection of labour law and... the protection a union gives you. Any other industry would celebrate this [because it allows the owners to] implement whatever rules and conditions we want. It would hurt a significant number of players. [You have] exposed yourself to the mercy of NHL owners."
Guaranteed contracts? Health benefits? Pensions? Minimum salaries? All of that could be affected. During the NBA's 2011 labour battle, Ron Klempner, associate general counsel of the National Basketball Players' Association, said the players were better off without a union.
"That may be true for superstars, maybe not for others," Feldman said.
"The third risk," he added, "is if you lose. You've spent a tremendous amount of money on legal fees, [there's a] cancelled season and you've lost all leverage. [Decertification] is most powerful as a threat, because there's still uncertainty. If you fire off your weapon and there's no damage, you're weaponless."
What would be the league's response?
Well, it won't be a happy dance, that's for sure.
Last year, there were complaints the NBA players waited too long to utilize this strategy, that it would destroy any chance of a season.
"That's obviously false," Feldman said. "It may spell saving the season, force movement."
But he knows the NHL will fight hard, arguing the players are simply doing it to gain leverage, "stay in negotiation while exerting pressure, [hoping] once there's a threat of treble damages, the owners would cave."
"The players will say, 'We don't want to dissolve the union to blow up the sport, we want to blow up the union because collective bargaining is no longer working.' The owners will have a different spin, that [the NHLPA] is just using it as a tactic. The NBA and NFL made the argument, which the NHL will certainly make, that [decertifying] is a just a sham and should not be recognized."
"It's the 'Duck Defence.' If it looks like a union and talks like a union, is it still a union?"What are the chances of success?
"If somebody's telling you they know, they are either delusional or lying to you," Feldman said.
The mix of Canadian and US law makes the situation even murkier. Time, though, for your favourite high school subject -- history.NFL 1989-92:
The 1987 strike was a failure for the players, with future Hall of Famers Joe Montana, Steve Largent and Randy White among many who crossed the picket line. But, years later, the group would win a significant battle in court.
In 1989, the union went through this process and New York Jets running back Freeman McNeil led a lawsuit challenging the legality of the NFL's "Plan B" free agency. (Basically, it gave teams the right to match any offer made to one of their free agents.)
The key here is that the players kept playing -- with no official union-- while this went through the courts. It took three years, but in September 1992 a Minneapolis jury sided with the plaintiffs. Four of them received almost $2 million US in damages, while four more were immediately declared unrestricted free agents.
But it was in 1993, when the late Reggie White filed an anti-trust lawsuit, that things got really serious. The two sides sat down and made a deal with a re-certified union.
This was a successful anti-trust lawsuit by a group of North American professional athletes, and you see what it took: A willingness to spend almost four years in the court system without a union, while playing the entire time without guaranteed contracts.
Only the NHLers themselves can answer whether they'd be willing to do that.
The NFL hasn't missed a game since, although it came close last year.NFL 2011:
There is a perception the players failed in this attempt, because they lost in court.
"Did they fail? Yes and no," Feldman said.
Again, the NFLPA began the decertification process. Ten players -- led by some guys even your dog has heard of (Tom Brady, Peyton Manning, Drew Brees) -- filed the antitrust suit.
They went after two things. First, the lockout was illegal and causing irreparable harm, so they deserved treble damages. Second, they wanted an injunction immediately ending the stoppage.
The battleground became the second part of that equation. On April 25, the players won their injunction, but another court gave the NFL a temporary stay (or "block," for all of us non-lawyers) four days later. The league won the final appeal on July 8.
It took 22 days for an official agreement after that happened. So the players did lose part two of their lawsuit. But part one? The real biggie? It never got that far.
"The courts never discussed if the lockout was illegal or not," said Feldman. "We never got any legal decision. So the uncertainty continues to go both ways. It can be argued to support the owners or the players... Not as complete a victory as many believe it to be."NBA 2011:
With talks between the owners and players going nowhere, the NBPA began the process on November 14 and filed two separate anti-trust lawsuits against the league. (They were later merged into one, with Carmelo Anthony and Chauncey Billups leading the charge.)
The basketball guys did make one strategic change after seeing what their football brethren went through months earlier. They did not ask for the immediate injunction ending the lockout. Seeing how that didn't work, they went with a different strategy; the possibility of collecting treble damages from the owners was a good enough threat.
Here's the other major difference, and I wonder if the NHL is considering this: the NBA made a pre-emptive strike. Recognizing the threat of anti-trust legislation, the league filed two unfair labour practice claims against the players three months earlier.
Among the allegations, from The Associated Press: "The NBA accused the players of being uncooperative in negotiations toward a new collective bargaining agreement by making 'more than two dozen' threats to dissolve their union and sue the league under antitrust laws to secure more favourable terms in a new CBA."
"That was a little bit of home-ice advantage," Feldman said. "[The NHL] filed in New York Second Circuit District Court, which has a friendly history of case law with owners and leagues. It's not a guarantee you win, but it's a good try. The Ninth Circuit of California tends to be more employer or player friendly."
One of the NBA player lawsuits was filed in that court. (Minnesota also tends to be favourable to players. That's where they won in 1992 and filed last year, but they did lose the injunction attempt this time.)
Of course, there were no rulings on any of this, because settling all litigation was part of the new CBA agreement. (After the NFL players won in 1992, you can bet every league will demand this in the future.) The two players' lawsuits were merged into one on November 21. Five days later, the owners and players made a deal. The reformation of the union and "Yes" votes from both sides to accept took another 12 days. So what now?
Feldman raised another point I never thought of -- the players competing overseas.
"In order to [win damages], you have to prove irreparable harm. It might be harder because so many are playing abroad," he said. "In the NFL, there was no alternative. In the NBA there's some, and the NHL some. Owners can argue they are being paid in another league."
"Now, the players' response would be it's not the same as the NHL. Plus, they have short careers with risk of injury; those careers are harmed if the lockout continues."
But it's another corridor in this labyrinth.
Sounds like the players who have not been a huge part of the process want more information, while those who have been very involved are more certain. The initial steps of decertifying a union -- called "disclaiming interest," meaning the association no longer represents the rights of the players in collective bargaining -- can happen quickly.
A court case? With appeals? Maybe my not-yet-born grandchild will find out. Who knows?
Would they try to gain an immediate injunction to end the lockout? If so, could they succeed where the NFLers failed?
Or is it just a pressure tactic?
"That may be enough to shift the leverage one way or another to make a deal," Feldman concludes. "No one wants to take the risk, no one can say, 'We will win.'"
"It's a dream for law professor, but a nightmare for a sports fan."
Just another one in our recent hockey collection of them.
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