Adam Grotsky, ArtSci ’15
Desperate times call for desperate measures and with lockout negotiations well into their second month, the National Hockey League Players Association (NHLPA) is now considering the extreme legal path of decertification.
It’s a risky proposition that’s worth pursuing despite how it leaves most of us fans more confused and frustrated than ever.
It’s illegal for competitors in a marketplace to collude and fix that marketplace. However, due to the protection of the Collective Bargaining Agreement (CBA), the NHL owners routinely get together as competitors and set regulations, such as the salary cap. More importantly, they can get together and decide to lock out the players.
Decertification is a legal strategy in which the NHL players revoke the authority of the NHLPA to negotiate on their behalf, effectively dissolving the union. In doing so, the rules of the CBA, which protect the NHL from marketplace violations, would no longer apply.
How does decertifying affect the negotiations? If the players choose to decertify, the owners are no longer protected by the CBA, meaning they can be sued for violating marketplace rules (known as antitrust violations). Essentially, the players would be able to rightfully sue the NHL for locking them out.
While this may sound like a favourable option, decertifying requires a set of time-consuming protocols that would almost guarantee no season this year. First, 30 per cent of the players union must sign a petition in support of the motion. The petition is then sent to the National Labor Relations Board, a 60-day process that ultimately results in the setting of an election date.
On the date of the election, the players will participate in a majority vote to determine whether they will decertify. Only then would the players be able to even begin filing antitrust lawsuits, another extremely lengthy process.
That being said, decertification is a strategy that I believe the players need to utilize, and the quicker the better. We’re two and a half months into negotiations and there is no sign of a deal to break the lockout in the near future. While decertifying may be a tedious approach, it’s a more effective means to resolving this conflict than repeating the same process that continues to fail both owners, players and fans.
In 2011, the NFL players union decertified in a process that lasted four months before the sides could reach an agreement. In the same year, however, the NBA players union took the route of decertification, filed lawsuits against their employers, and the league settled within a couple of weeks.
After seeing last year’s effects of decertification from the NBA and NFL, it’s possible that the threat of such action alone would pressure the NHL into making a deal. The reason for this is that decertifying puts the players in control of the situation. Furthermore, it puts the NHL at risk of losing millions of dollars and damages their credibility as a league.
If I were one of the players, I would have decertified yesterday. This is the best tactic to resolving these negotiations and it’s the best opportunity for the players to regain some momentum in the talks. As fans, we’re going to have to come to terms with the fact that the possibility of an NHL season is slim. The threat of decertifying is likely the last chance of seeing our teams strap up their gear this year.
Adam Grotsky has played 10 years on various teams in the Greater Toronto Hockey League.
Chase Heinemann, Comm ’15
The NHL lockout seems longer now in 2012 than it did back in 2004-05 when a full season was lost. This time around, the lockout isn’t just about the game but about money. What started out as the major issue — the allocation of league revenue — has now turned into a full-scale long-term lockout.
The risky solution of decertification would cause consequences that would be felt beyond a season-long lockout.
There are several key issues that the lockout rests on: the players’ percentage of league revenue dropping from 57 per cent to 50 per cent and a $182 million gap in the compensation between the players and the league for this drop are striking. Also at play is the change of restricted free agency from seven to eight years and the implementation schedule of the new percentage split.
There has been a standstill between the National Hockey League Players Association (NHLPA) and the NHL (the owners). They have tentatively agreed to the split but can’t agree on paying out existing contracts.
There has been some talk of the NHLPA decertifying their union. This is a foreign concept to some people, but basically, the NHL uses the Collective Bargaining Agreement (CB to guard itself with regards to a couple points.
A number of things that the league and many other professional leagues do are considered illegal. Competitors in a marketplace aren’t allowed to come together and set a salary cap or working conditions. The CBA allows the NHL to do this and not be penalized by law. If the NHLPA did decide to decertify their union, the CBA would stop protecting the NHL from these laws.
The NHL wouldn’t be allowed to lockout the players and there would have to be hockey. This seems great, right? There is a downside to this. Without the CBA, all of the work that has gone into the forming of the current league will be thrown away. There will be no salary cap, allowing big market teams to dominate the league once again.
The entire league will have to go back to square one. For some people, some hockey is better than no hockey. However, the process of decertification is a lengthy one. There’s a good chance that there would be no hockey in 2013.
This route also wouldn’t guarantee the NHLPA gets everything they want. The NFL went this route in the past and when the players filed a lawsuit for the games to resume, the courts sided with the league. The suit failed but the tactic won — the sides came together and reached a settlement. After considering the variables, the decertification route is much too risky. Not only does it not guarantee hockey in the near future, but it risks the league that we have come to love. Hockey would become a lot less entertaining if the big market teams could buy their players again or if the best player in every entry year didn’t go to the worst team. These rules outlined in the last CBA made the NHL a much more successful league. I would like to see it stay this way.
Chase Heinemann is the Public Relations manager of the Cure Cancer Classic, which runs hockey events to raise money for the Canadian Cancer Foundation.
All final editorial decisions are made by the Editor(s)-in-Chief and/or the Managing Editor. Authors should not be contacted, targeted, or harassed under any circumstances. If you have any grievances with this article, please direct your comments to firstname.lastname@example.org.