- Lester Munson, Legal Analyst
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The logical and reasonable way to end the NHL lockout is mediation. It is a process that is private, efficient, conciliatory and inexpensive. And it's already underway.
The other way to end it is public, explosive, confrontational and expensive. It is called decertification and litigation. And it may be the next step if mediation does not work.
The fact that mediation, decertification and litigation are at the center of the NHL lockout shows clearly that the owners and the players are staring into the abyss of the loss of another season.
There may be some hope that results from the mediation attempts this week in Washington, D.C. But the real reason the owners and the players are participating in the mediation is that they could not possibly have refused to participate.
Mediation is one of those things that you cannot refuse. Neither NHL commissioner Gary Bettman nor NHLPA executive director Donald Fehr could afford the scorn and obloquy that would have resulted instantly from a refusal to enter into mediation with the experts at the Federal Mediation and Conciliation Service. There is no quicker way to become the bad guy in a dispute than to refuse to participate in mediation.
The two sides had not met for nearly a week. They were unable even to agree on a time or a place for a bargaining session. But when George Cohen, the FMCS director, suggested mediation, both knew they must agree to do what Cohen suggested. They will now sit patiently as FMCS mediators sort through the dispute, shape and reshape the issues and shuttle between the two warring sides to seek common ground. It's a process that can work well but failed to produce settlements in the recent NFL and NBA lockouts.
With Fehr suggesting that the sides are a mere $182 million apart on core economic issues, there is a chance that the mediation could produce a settlement that will save some of the season. There's at least an equal chance that the owners, with their cadre of lawyers who have turned a lockout into an art form, are looking for more than the players are willing to give.
If the mediation does not succeed in the next few days, the players will have a critical decision to make -- whether they should decertify their union and file antitrust litigation against the owners. It's an option that has worked well for NFL and NBA players in a series of decertifications that began in the late 1980s, producing free agency and a host of benefits that players had never previously enjoyed.
NHL players never used the option during the lockout of 2004. Even as the players faced the loss of a second season, they did not decertify. Did the union this time around even consider the option in the face of a loss of nearly $1.5 billion in player salaries? Bob Goodenow, the union leader through most of the lockout, has steadfastly refused to discuss the option and any consideration that he may have given to it.
Decertification was never open to Fehr when he led the Major League Baseball Players Association, because MLB team owners enjoyed an exemption from the nation's antitrust laws as the result of a series of decisions by the U.S. Supreme Court.
Even without any direct experience with the issues of decertification and litigation, there is no one better able than Fehr to explain to the hockey players their rights and opportunities under what some call the "nuclear option." He is a remarkable leader who could use the decertification option to show the players the path to an outcome they never approached earlier.
If the players decide to decertify, a decision they should have made eight years ago and should make now, the lockout would be transformed from an acceptable negotiating tactic into a monopolistic conspiracy to restrain the market for elite hockey players.
Instead of worrying about lost ticket and concession sales, the owners would face the possibility of paying triple damages under the nation's antitrust laws. If the players would have made $1.5 billion in salaries during the 2012-13 season, the owners would be exposed to a claim for $4.5 billion from a decertified union.
It is not certain that the players will succeed with the decertification and litigation option, but it is certain that the players' leverage would increase substantially. Bettman and the owners would insist that they are not worried, and that the law is on their side, but the history of decertification shows that the players have done well. Instead of facing the uncertainties of injunctions and jury trials, team owners find flexibility and compromises that were not there before the litigation began.
It would, of course, be better for both sides if the mediation now underway became a process of labor peace in the NHL. But none of the three mediations in 2004-05 was successful in achieving peace, and this is likely to be a fourth failure.
The owners ignited the current confrontation with their lockout, a conscious decision to use their most formidable option. The players should be considering their most formidable option -- decertification and litigation.
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