The focus of the NHL lockout is shifting from the bargaining room to the courtroom.
A class-action complaint was filed by the league on Friday which asked a federal court in New York to make a declaration on the legality of the lockout — a pre-emptive legal manoeuvre that came with the NHL Players' Association moving towards dissolving.
In the 43-page complaint, the league argued the NHLPA was only considering the action "to extract more favourable terms and conditions of employment."
"The Union has threatened to pursue this course not because it is defunct or otherwise incapable of representing NHL players for purposes of collective bargaining, nor because NHL players are dissatisfied with the representation they have been provided by the NHLPA," read the NHL complaint.
"The NHLPA's threatened decertification or disclaimer is nothing more than an impermissable negotiating tactic, which the Union incorrectly believes would enable it to commence an antitrust challenge to the NHL's lockout."
'Disclaimer of interest'
Labour expert Dan Oldfield explains what a "disclaimer of interest" is and why it's not necessarily a good option for NHL players.
The NHL also filed an unfair labour practice charge with the National Labor Relations Board as the lockout took on a new look in Day 90.
One constant is the fact that the sides don't see eye to eye. In a statement, the union said the league was overstepping its bounds.
"The NHL appears to be arguing that players should be stopped from even considering their right to decide whether or not to be represented by a union," said NHLPA spokesman Jonathan Weatherdon. "We believe that their position is completely without merit."
The legal challenges came in the wake of a decision by the NHLPA's executive board to request a vote from union membership that would give it the authority to file a "disclaimer of interest." Should the 30-member board be granted the right, the disclaimer would see the NHLPA dissolved, giving players the ability to file class-action anti-trust lawsuits against the league.
The NBA example
Similar strategies were used during last year's NBA lockout.
Jeffrey Kessler, the lead negotiator for the National Basketball Players Association in that dispute, believes the NHLPA would be wise to go ahead with the disclaimer of interest.
"I think this is much more likely to lead to a settlement sooner," Kessler said Friday. "The players have concluded that they are on the verge of possibly deciding that it is better not to be a union and using the anti-trust laws to attack the lockout, which all fans should be happy with because it'll work.
"I assume the fans would like the lockout to end."
By filing the class-action complaint in New York, the league guaranteed that the legality of the lockout would be decided in a court known to be sympathetic towards management. If the NHLPA dissolves it will seek to have the lockout deemed illegal — something that could see players paid triple their lost salary in damages if successful.
With Kessler at the helm, NBA players filed a disclaimer of interest while they were locked out in November 2011. Almost immediately, the owners changed their stance on "maybe 15 or 20 different issues," according to Kessler.
A new collective bargaining agreement was agreed to within 12 days of the basketball union dissolving.
Last week when NHL commissioner Gary Bettman fielded a reporter's question about the NHLPA decertifying, he indicated that the union was more likely to pursue a disclaimer of interest. He also ensured the board of governors was brought up to speed on the issue when it gathered Dec. 5 in New York.
"The board was completely and thoroughly briefed on the subject," said Bettman. "And we don't view it in the same way in terms of its impact as apparently the union may."
Kessler believes that Bettman would have a different opinion after talking with NBA commissioner David Stern, his former boss.
"Dave Stern said the same thing [that he wasn't worried about the union disclaiming interest] and we settled two weeks after the basketball players disclaimed," said Kessler. "So maybe commissioner Bettman should confer with his previous mentor on that."
The NHL's collective bargaining talks have failed to produce much progress. The sides spent two days with a U.S. federal mediator in New Jersey this week and don't currently have any further talks scheduled.
In its legal complaint, the league cited the possibility of the NHLPA disbanding as one of the factors slowing negotiations.
"The Union's improper threats of antitrust litigation are having a direct, immediate and harmful effect upon the ability of the parties to negotiate a new collective bargaining agreement," it read.
With each passing day, the NHL inches closer to losing a second season to a labour dispute. All games through Dec. 30 have been cancelled and a new deal would need to be in place by mid-January to salvage a 48-game schedule, the minimum Bettman says needs to be played.
Kessler thinks the odds of that happening will increase if the NHLPA dissolves.
"This option has been available to the players all along," said Kessler. "The union made it clear that it was going to be a last resort so I think we can conclude that the usefulness of collective bargaining has about exhausted itself."
NHL official statement:
Today, in response to information indicating that NHL Players have or will be asked to vote to authorize the National Hockey League Players' Association's Executive Board to proceed to "disclaim interest" in continuing to represent the Players in collective bargaining, the National Hockey League filed a Class Action Complaint in Federal Court in New York seeking a Declaration confirming the ongoing legality of the lockout.
Simultaneously with the filing of its Complaint, the NHL also filed an Unfair Labor Practice Charge with the National Labor Relations Board alleging that by threatening to "disclaim interest," the NHLPA has engaged in an unlawful subversion of the collective bargaining process and conduct that constitutes bad faith bargaining under the National Labor Relations Act.
NHLPA official statement:
The NHLPA has just received a copy of the National Labor Relations Board charge and has not yet been served with the lawsuit. However, based on what we’ve learned so far, the NHL appears to be arguing that Players should be stopped from even considering their right to decide whether or not to be represented by a union. We believe that their position is completely without merit.