Lockout’s New Arena: Court
NHL Commissioner Gary Bettman, second from right, and deputy commissioner Bill Daly speak to reporters, Thursday, Dec. 6, 2012, in New York. The NHL has rejected the players' latest offer for a labor deal, and negotiations have broken off at least until the weekend. (AP Photo/Mary Altaffer)
Buzzing hockey cathedrals. Or boring courtrooms.
Sticks and sweaters. Or gavels and robes.
Stars enforced by knuckles. Or suits protected by security.
This week, with litigation in the air, we will have a better idea which way this 93-day NHL lockout is heading. The hope of a shortened season will either rest in the hands of the players or the hands of a federal judge in New York.
Beginning on Sunday, every NHL player was given access to a ballot to vote whether to give its executive board the power to file a “disclaimer of interest,” which would dissolve their union in order to fight the legality of the lockout in court.
Votes will be cast electronically over a five-day period that ends Thursday. Two-thirds of the union’s membership must vote in favor for the “disclaimer of interest” to be filed.
The measure is expected to pass somewhat easily among the NHLPA’s membership. Why? For one, it’s a sign of solidarity. Not passing the movement clearly preferred by leadership — also known as NHLPA executive director Donald Fehr — would be a huge win for the league.
More importantly, a vote to allow the possibility of the filing of a “disclaimer of interest” is just that. A possibility. Clearly, not all 750 players see this lockout shaping up the same way, especially those who see the light at the end of their careers and those living contract-to-contract.
If the measure passes, the 30-member NHLPA executive board would have until Jan. 2 to file the disclaimer. It doesn’t mean that it has to be filed. If Jan. 2 passes, the disclaimer is still a possibility, it would just have to be voted on again.
The disclaimer or decertification has been rumored and threatened for nearly a month. Players have viewed the disclaimer as an option to try and scare or strong-arm the NHL into a better deal. Commissioner Gary Bettman acknowledged the possibility when serious talks broke off on Dec. 6 and basically said: “Go ahead and try.”
How scared is the NHL? They aren’t. They’re lawyered up, backed by the pre-eminent sports and collective bargaining firm in the world in Proskauer Rose.
For proof, the NHL filed a 43-page class-action complaint in U.S. District Court on Friday in New York to seek a quick declaration from the court, which would essentially block the players’ disclaiming efforts.
In the complaint, the league argued the players’ association was only considering the “disclaimer of interest” to “extract more favorable terms and conditions of employment.”
“The union has threatened to pursue this course not because it is defunct or otherwise incapable of representing NHL players for purposes of collective bargaining, nor because NHL players are dissatisfied with the representation they have been provided by the NHLPA,” the NHL complaint said. “The NHLPA’s threatened decertification or disclaimer is nothing more than an impermissible negotiating tactic, which the union incorrectly believes would enable it to commence an antitrust challenge to the NHL’s lockout.”
The NHL also filed an unfair labor practice charge with the National Labor Relations Board.
Flyers forward Scott Hartnell, a member of the NHLPA’s executive board, was named as a defendant in the complaint. The complaint used tweets from former Flyers Matt Carle and Scottie Upshall to support their case, also citing a Philadelphia Daily News story from November about decertification.
Somehow, both sides are willing to “die on a hill,” to use NHL deputy commissioner Bill Daly’s words, over the length of the new CBA and length limits on player contracts. Players have lost nearly $600 million in revenue; the owners have lost more than $1.3 billion in revenue.
Who blinks first?
After each side flexes their muscles on paper this week, to try and assure mutual destruction, both sides would be best served to reconvene negotiations and try to finally hash out a deal in person, rather than through process servers.