Talk to any NHL player about the lockout and, at some point, each one will say he wants to play hockey. Even in supporting the Players’ Association, getting back on the ice and earning a living again is the goal.
What if there were a way to make that happen? On Monday, the Federal Mediation and Conciliation Service joined the fray in the hopes of getting a deal done.
“I think both sides are prepared to try a new approach,” NHL deputy commissioner Bill Daly said in an email. “Nothing ventured, nothing gained.”
Federal mediation could help the process along, but it’s nonbinding and certainly not foolproof. Because of that, decertification of the NHLPA could be a gamble the players take to try to end the lockout before the 2012-13 season is canceled.
“I think at this point, both sides don’t seem to be making significant progress and it does seem that a catalyst is needed,” said Gabriel A. Feldman, Tulane associate professor of law and director of the sports law program. “That might be the catalyst that’s necessary.”
It’s a complicated process with risks, like the fact that owners could call the players’ bluff and let the process go through antitrust law in court for months, if not years. But one player who is informed about the situation said it’s the real deal and something the NHLPA is seriously considering.
Even with mediators becoming involved, decertification still is an option.
The NFL and NBA players associations decertified last year. Both lockouts ended, the NBA’s 12 days after decertification.
“There are two sets of laws that govern these situations and what happens is that, from time to time, unions and sports unions have essentially said that there are circumstances in which members would be better off without a union and taking action under the antitrust laws. And that’s all I can say about it,” NHLPA executive director Donald Fehr said. “You can check what’s happened in the other sports. I’m not going to discuss whether we’ve had any such discussions, or, if so, what they are.”
Most are remaining tight-lipped about decertification, which would dissolve the union and make players individual entities the league must bargain with. Once decertification occurs, players could argue through antitrust laws that the lockout is illegal; owners, if found in violation of U.S. labor law, would be responsible for damages.
Quarterbacks Drew Brees and Peyton Manning were among the plaintiffs in March 2011 when players filed an antitrust suit seeking an injunction to end the NFL lockout. The Eighth Circuit Court of Appeals ruled that a federal court did not have that power.
As it stands, the NHL and other sports leagues are protected from antitrust laws because of players unions that agree to collective bargaining agreements.
In an interview with Sportsnet 590 in Toronto, Daly said he was not scared by the idea of the NHLPA decertifying. He called it a “time-consuming process” that would “likely lead to the end of the season.”
“Decertification would be a death knell to the season,” Daly told Sirius-XM radio.
Not so fast, at least at the beginning of the process.