Oldfield: Why NHLPA decertification is a bad idea

The idea has been floated of NHL players decertifying their union as a means of ending the lockout. Labour expert Dan Oldfield explains why he thinks this is a flawed strategy.
Now is not the time for the NHL players' union to break up, according to our labour expert. (Chris Young/Canadian Press)

Desperate times call for desperate measures, so it's not surprising there has been some mumbling lately about the idea of NHL players decertifying their union.

It’s a stupid idea.

It’s not as easy as it sounds, and it’s not going to help the players settle their problems with the NHL.

In simple terms, a decertification is a move by members of a union to bring an end to the union. In order to decertify, the members have to follow in reverse the process they used when the union was created. They would have to petition the U.S. National Labor Relations Board, which would conduct a vote of all members. (This was actually done by the players in the NFL and threatened by the NBA players’ union, but in those cases a deal was reached before matters got too far out of hand.)

The strategy behind the move is to challenge the league's monopoly before labour boards, and in the courts.

If it all works out the way it’s envisioned, the players would effectively all become unrestricted free agents. The lockout could then be challenged as an illegal collusion, and damages could be sought if the league refused to honour existing individual contracts. The league could not impose a salary cap, could not restrict player movement, and could not limit the quantum of any individual contract.

But there are two fundamental problems with the approach. First, the relationship between the players and the league also includes retired players, and some players not on NHL rosters. It involves pensions, player health care, insurance, and a variety of other mutual benefits. Not all of them could be dealt with on the basis of individual contracts.

But the more practical problem is the time it would take to accomplish anything meaningful.

The U.S. National Labor Relations Board is a ponderous bureaucracy that can take years to render a ruling. We can't be sure what role various Canadian provincial labour boards may play, but they too are not known for lightning-quick decisions.

Even if those labour board issues are resolved, most of the outstanding issues would wind up before the courts. They would start in various state and provincial courts, move through the appeals process, and perhaps even end up in the U.S. and Canadian Supreme Courts. Additionally, those rulings may not give any immediate relief to a large group of players. We're talking years here, not weeks or months.

The NHL and other professional sports leagues gain a lot by having a players union. They have protection from a variety of monopoly-related legislation. So a threat to remove that benefit would seem significant. However, both the league and the players’ association know it is a hollow threat that would only be realized in the event the league is successful in breaking the union.

By far the best solution is the one that sits in front of the parties now. All the components of a new deal are on the table. Put the right people in the room. Stop swapping proposals, and talk about needs rather than wants.

After all, does either side really want outside third parties setting the rules?

Dan Oldfield is the lead negotiator for the Canadian Media Guild, a former journalist, and a longtime hockey fan.