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Friday, December 14, 2012
Legal expert: Disclaimer vs. decertification

By Scott Burnside

Ottawa-based sports/labor lawyer and partner at the national firm Gowlings Eric Macramalla explained the difference between decertification and a disclaimer of interest.

Decertification and a disclaimer of interest have the same result: dissolution of the NHLPA.
But unlike decertification, a disclaimer of interest does not require a vote. A disclaimer simply requires Donald Fehr to send a letter to the NHL saying he is revoking the NHLPA’s authority to bargain on behalf of the players.

The players can then be in court almost instantly asking a judge to lift the lockout.
Decertification generally takes 45 to 60 days and requires 30 percent of players to sign a petition supporting it. Once the NLRB validates the petition, the NLRB holds a player vote. If 50 percent of players approve, the union is gone.

Once the union is dissolved, the players’ association could negotiate with the league, but within limited parameter. And a deal would require that the NHLPA be reconstituted.

The NHL could respond by filing a bad faith complaint with the NLRB or they could first file a lawsuit asking the court to say that the lockout is legal.

The NBPA filed a disclaimer of interest on Nov. 14 and a tentative deal was reached on Nov. 26, so this could be helpful in extracting leverage in negotiations.

In theory, this can help negotiations, but the NBA aggressively pursued strategies to fight the NBA players’ antitrust strategy, so by no means will this be a slam dunk for NHL players if they choose to take this route.

Ultimately, the NHLPA will disclaim interest if it believes it’s out of room to negotiate a deal, but this will not necessarily lead to a quick resolution.