By Alana C. Newhook, Esq.
The NHL lockout has now been in place since September 15, 2012 with no indication of settling anytime soon. The negotiations, discussions, and meetings have proved fruitless simultaneously raising and dashing the hopes of hockey fans all over. The latest round of meetings between the teams owners and players proved to be the most optimistic since September. The progress in these recent meetings was made in the notable absence of Commissioner Gary Bettman and NHLPA Union Chief Donald Fehr. The optimism surrounding the lockout negotiations on Wednesday, December 5th was short lived. The optimism fizzled out within a day when Commissioner Bettman and union leader Fehr came back into the fray. The quick change in course caused by the inclusion of Bettman and Fehr may prompt the players to consider other options to end the lockout, namely, options that do not involve negotiation through the NHLPA.
With negotiations rumbling along and progress seemingly stalled, all parties, especially the fans, seem to be fresh out of patience and full of frustration. There may be an option left for the players however, that has received some discussion in the media. The players have the ability to decertify the labor union. Many sports commentators have turned their attention to decertification as the next possible move in the players’ strategy. Most of the discussion has been negative but all have recognized the possibility of decertification of the union as a real possibility. The underlying message of these discussions seems to be that the time has come for drastic measures.
How drastic is decertification and would it lead to any gain for the players, the League, the fans, or the future of hockey? These are the keys questions. NHL deputy commissioner Bill Daly has stated that decertification would lead to the end of the season. Decertification would open up the realm of antitrust law and presumably lead to antitrust lawsuits against the League. The antitrust laws prevent employers from locking out employees who are not members of a union. Therefore, the players do not receive this protection as long as the players are members of the NHLPA.
The League benefits from the existence of the union and decertification of the union has been touted as a threat in the players’ arsenal. If the players decertified the union, the players would surrender their collective bargaining rights and remove the protective shield known as the non-statutory labor exemption. As an alternative, the players could use a disclaimer of interest, in which the union would notify the League that the union no longer represents the players’ interests. Decertification, by removing the non-statutory labor exemption, would take the fight from labor law into the realm of antitrust law. Under antitrust law, the players could challenge many of the League’s business practices, which could lead to numerous lawsuits and years of litigation.
While it seems like decertification would be a useful tool for the players at this juncture, the consequences may not be as beneficial as they may appear at first glance. The decertification process would be timely and cost the loss of more of the season. The players would have to collect signatures through a petition to achieve decertification. The second option, which has been touted as the more likely option for the players, would be the aforementioned disclaimer of interest. The disclaimer of interest would involve union leader Fehr notifying the NHL that they no longer represent the players. The disclaimer of interest is the route used by other professional sports leagues. If the players decertified the union, they would most likely follow in the NFL’s footsteps and attempt to find a court favorable to their plight to get a ruling that the lockout is illegal, thus mandating the return of hockey. If the players sue the League and successfully get a ruling that the lockout is illegal, the League would be on the hook for triple the wages lost during the illegal lockout.
The possibility of triple wages sounds tempting but the players have classified decertification as a last resort. One legally interesting complication is the application of American antitrust laws to the seven NHL franchises located in Canada. Another concern is the time that it would take for the lawsuits to work through the legal system. Decertification brings the possibility of not only losing this season but also losing next year’s season as well. The current negative climate surrounding the NHL lockout makes it uncertain whether hockey fans would be in for such a long haul. It took a long time, and a one-of-a-kind athlete by the name of Sidney Crosby, to revive the NHL and revive the fan base after the last lockout. The likelihood of another Sidney Crosby coming along is slim at best but maybe he will be called upon once again to revive the NHL if this current lockout ever ends.
