Print and Go Back ESPN.com: NHL [Print without images]

Sunday, December 2, 2012
Updated: December 3, 1:07 PM ET
Time to decertify? Not so fast

By Craig Custance
ESPN The Magazine

On Tuesday, a small group of NHL owners and players will meet to try to find a breakthrough in CBA talks without the presence of NHL commissioner Gary Bettman and NHLPA executive director Donald Fehr.

On Wednesday, those six owners will join the rest of the board of governors for their meeting in New York, where the fate of the season could very well be decided if no progress is made.

As for the players, a Tuesday meeting without progress would push them closer to a step they've so far managed to delay: decertification.

They're not there yet, but they're getting closer.

"I think they're a lot closer to Armageddon than they ever were during the last lockout," said a veteran agent who requested anonymity.

Make no mistake, a full-on decertification would be Armageddon. Although it might not be necessary.

First, a quick decertification explainer in case you're not an antitrust lawyer and have no idea why something called the Norris-La Guardia Act could have an impact on hockey -- even if the word Norris suggests it should.

In the United States, antitrust laws prohibit owners from locking out employees who don't belong to a union, with the punishment triple the wages lost during the lockout. As long as the NHL players continue to negotiate under Fehr as part of the NHLPA, they don't receive that protection.

But if they're no longer a union through decertification, that changes the dynamics of the entire lockout. Then, they can file antitrust lawsuits, targeting the wallets of their owners with a pretty compelling case.

There are a couple of routes the players could take to get there. One is a complete decertification. The full monty.

This requires collecting signatures through a petition and an eventual decertification election. It's a process that likely would take a minimum of two months, which doesn't leave much hope for this season.

The other route is quicker and likelier. Fehr and the NHLPA would send a notification letter to the league saying they are no longer serving as the representative of the NHL players. It's a disclaimer of interest, and it's the route the NFL and NBA players chose during their work stoppages.

"For the NBA players, at the time the players decided to decertify, there was a take-it-or-leave-it threat from the NBA," said Winston & Strawn partner Jeffrey Kessler, an antitrust lawyer who represented the players in both the NFL and NBA. "Two weeks later, they reached a settlement."

Because of Gary [Bettman], [NHL labor lawyer] Bob Batterman and [Bruins owner] Jeremy Jacobs, the big three's unwillingness to negotiate in good faith, the players have no alternative. The exposure for the owners is dramatic. It's not for one owner, it's for 30 owners. Hopefully, 29 owners wake up and tell the commissioner to do his job. ... Right now, this guy is not acting like a commissioner. He's acting like a czar.

-- Player agent Kurt Overhardt on decertification

It was arguably an effective use of leverage, and Kessler said that the deals struck by both groups of players were more favorable than the public perception credits them.

"For example, the NFL players received close to 55 percent of the revenues last year in football in an actual cash basis," he said. "Look at actual dollars in cash as opposed to salary-cap dollars. Most people spend actual dollars."

If the NHL players followed the NFL playbook, they would decertify, then pick a favorable court that might rule the lockout illegal and order arena doors opened. The NFL players eventually lost that fight following a crucial 2-1 ruling in the NFL's favor by the 8th U.S. Circuit Court of Appeals, which allowed the NFL lockout to continue. It was the aforementioned Norris-LaGuardia Act that did the players in. The 1932 labor law gave unions more rights and power, including the restriction of court injunctions in labor disputes, but this time it was used against workers because of those restrictions.

It's precedent, but it's not a deal killer for the NHL players.

Instead, the NHL players could move directly to the portion of the playbook where they start suing for money lost during the lockout.

If the players win, the payoff would be triple the wages they've lost so far in the lockout. Plus the league would have to pay all lawyer fees.

That's millions and millions of dollars teams would have to deliver. Sounds great, right? It's not that easy. Nor is this a route the players have been eager to follow.

"We'd like to exhaust every option we can before we get to decertification," said Canucks goalie Cory Schneider, a member of the NHLPA's negotiating committee. "It's a very last resort. Every time it's been mentioned, the group has decided to keep negotiating.

"The players are fully aware of what it means to decertify. There are no guarantees either way. There's inherent risks. ... You can't sorta decertify. You either do or don't. There could be some serious ramifications. There could also be some benefits."

There's reason for trepidation. Seven of 30 NHL teams are Canadian, which complicates things slightly when you're talking about American antitrust laws.

It's also a little hard to argue that the NHL has a monopoly on professional hockey when you can just take off for the KHL or Switzerland at the first sign of labor trouble.

It gets even hazier when you consider that the NHLPA is a Toronto-based association that hasn't used U.S. antitrust laws in the past despite multiple work stoppages.

"Part of the reason for that is the NHLPA never considered itself a U.S.-based labor union, rather, because it was physically based in Canada, it considered itself a Canadian-based association," said former NHLPA executive director Paul Kelly. According to Kelly, the NHLPA's home base in Canada means it historically hasn't filed the same public disclosures required of its American counterparts.

"One of the issues that would get raised by the NHL is you can't avoid meeting the requirements and obligations of U.S. labor laws for years and years and then suddenly scream you want the protection of the laws," said Kelly, now a partner at  Boston law firm Jackson Lewis.

It just adds another shade of gray to the layers and layers of gray that surround the issue. With each step of the way, the answer to Question A yields a new Question B.

And there are good reasons the Fehr brothers haven't played the decertification card just yet. For one, it makes it harder for the NHL to argue that any eventual move toward decertification is a sham if it comes after months and months of negotiating. The players can now argue that they have presented offers to the NHL that include serious financial concessions. They've worked with mediators. They've even removed Donald Fehr from the equation for meetings this week to try to make progress toward a deal.

It helps legitimize the argument that an eventual decertification was a last-ditch move and not a pure negotiating ploy.

There's another reason.

Fehr, according to those who know him well and have studied him, believes strongly in the process of collective bargaining. He's had success with it. This is what he does best.

"Don Fehr is a different animal," said Gary Roberts, dean at the Indiana University Robert H. McKinney School of Law. "Don is truly a union guy. The idea of decertifying the union is appalling to him. It's not a concept he likes. He thinks the union is valuable and serves a valid purpose. Philosophically, he's opposed to doing it."

If there's a hockey player somewhere making a list of pros and cons when it comes to decertification, the lack of clear evidence on the outcome makes it a challenging exercise. Decertification is a powerful weapon, but it's largely untested.

"It is far from the silver bullet," said Gabriel Feldman, director of the Tulane Sports Law Program.

At the very least, it could be the threat that makes the owners move closer to the players as talks face another critical turn this week. It's the last bit of offense the players have left. Followed through to its bitter end, decertification could bring millions in damages to the players and result in an NHL without a salary cap, without a draft and more contractual freedom than the players have ever enjoyed. It would blow up the system as we know it and lead to consequences imagined and unimagined. Although it's highly unlikely things would ever advance that far before a deal is struck between the two sides.

The cons? If this turns into a fight in the courts, this season is lost. If it drags out as court cases tend to do, next year would be gone, too. Sure, there's an endgame where the stars in the league cash in, but the NHL's rank and file would be hurt by the lack of a minimum salary, pensions and other benefits that are included in the CBA.

And then there's the big one. If the players lose the court fight, their last bit of leverage is wiped out. Gone.

It's a serious risk.

The NHL, using the same lawyers, still could take a page from the NBA and file a pre-emptive lawsuit that puts the court fight on more favorable turf. Like, say, New York. In filing its lawsuit, the NBA argued that the players weren't negotiating in good faith because "more than two dozen" players threatened to decertify. But NHL players have mostly been careful not to publicly threaten decertification, and the NHLPA declined a request to speak with Fehr about the topic for this story.

All these factors may be why those who are paid well to guide the players on decision-making are split on the issue. An informal straw poll of 10 NHL player agents resulted in four voting yes for decertification, three for no and three deferring completely to whatever Fehr believes is best.

One, who requested anonymity voted no, saying: "I don't think the league is that scared of decertification."

Kurt Overhardt, whose company KO Sports represents players like Mike Smith, Ryan Kesler and Kevin Bieksa, is ready to dissolve the union right now, citing a lack of meaningful negotiation in the current system.

"Because of Gary [Bettman], [NHL labor lawyer] Bob Batterman and [Bruins owner] Jeremy Jacobs, the big three's unwillingness to negotiate in good faith, the players have no alternative," Overhardt said early last week. "The exposure for the owners is dramatic. It's not for one owner; it's for 30 owners. Hopefully, 29 owners wake up and tell the commissioner to do his job. ... Right now, this guy is not acting like a commissioner. He's acting like a czar."

There's no right answer because nobody can say with any certainty exactly how it would play out. In a sporting landscape where lockouts appear to be the negotiating tactic of choice by leagues, decertification may be the equalizer.

Yet it can't be an empty threat. To be truly effective, players would have to be willing to see it through to a bitter end that could equal months or years of court cases. The worst-case scenario wouldn't be pretty.

"This is like war games," Feldman said. "Why play the game when no one wins? It's mutually assured destruction."