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NHL lockout 2012: Federal mediation part of the talks

NHLPA considering decertification

- The Washington Times - Monday, November 26, 2012

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.

"Dissolving the union, whether through disclaimer or decertification, isn't the bomb denotation that many claim it to be," Feldman said. "It has the potential, if it plays its way through the courts. But it can be just a quick leverage shifter. Or it could be something that can solidify the players and the Players' Association and cause enough of a leverage shift to get an agreement done quickly."

The leverage the players would have is taking control of the lockout from the owners. Think of it as a power play.

"I think this is done to put some pressure on the owners and allow players to go on the offensive," Feldman said. "This is not a silver bullet if the players decide to take this step. But the hope is that it creates enough uncertainty that it brings both sides back to the table and gets an agreement."

In order to decertify, at least 30 percent of players must sign a petition that would then go to the National Labor Relations Board. The board would set an election date for a decertification vote. The NHL and NHLPA could continue talking throughout the process.

Another option is the union disclaiming interest in the players, which would not requite any vote and could happen almost immediately.

Once players vote in favor of decertification or interest is disclaimed, the union would cease to exist and antitrust lawsuits can be filed; players can seek damages worth three times their salary. The league and players would be subject to U.S. law, though Feldman said it's unclear if the NHL's seven Canadian teams would have to go through separate litigation.

Far more likely than going through that process would be the sides coming to an agreement. That's why so many are talking about decertification.

But does it make hockey more likely to return? There's no simple answer.

"There's not enough history to sort of guide us in this," Feldman said. "I don't think decertification by definition means we get a quicker deal or a slower deal. It can work both ways. It's too hard to tell."

It's an unknown because no one knows what the league's response to decertification would be. Fighting the battle in court against the players, who have an ex-National Labor Relations Board member as general counsel in Don Zavelo, likely would take long enough that the season would be canceled. The league could argue that it's a sham decertification designed to gain leverage, leaving it to the courts to decide the next move.

But the threat of decertification could be the means to an end for the players.

"We're getting informed about it. It's not like it's a priority in our minds right now," Washington Capitals alternate NHLPA representative Troy Brouwer said. "We're still working toward getting a deal. But as time goes on here, it looks like it's getting tougher and tougher because the owners aren't willing to really negotiate."

Frustration over the current stalemate in CBA talks is making decertification a hot topic, but it's believed that Fehr and others in the NHLPA have been researching it. Special counsel Steve Fehr told Sportsnet 590 that he would not reveal internal conversations but added that "all things are under consideration, and we'll see where it goes."

If the decertification movement goes anywhere, it could happen sooner rather than later because waiting almost certainly would cost the season. Perhaps that's why Donald Fehr wouldn't say it's too soon in this lockout for the subject to be broached.

"You can look at what's happened in the other sports and make your judgments about that," Fehr said.

In the NBA, it worked like a charm. From dissolution of the union to antitrust suit to new CBA, it took only a couple of weeks.

But decertification itself won't end the lockout in the way these sides want.

"My sense is that the calendar will speak louder than litigation at this point. Because litigation can shift leverage; litigation doesn't get a deal done. A court is not going to write a collective bargaining agreement for these parties," Feldman said. "At the end of the day, this gets done in a negotiating room, not in a courtroom."

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