Monday, December 17, 2012

Decertification and other words as well which I read basically a handful of columns by this guy and somehow think I've learned enough to educate you people on some legal issues.

Let's talk about just what the balls is going on right now, in the dramatic world of post-podium NHL/PA negotiations. A lot of people threw around the idea of decertification, then Gary Bettman said that wouldn't happen, then something kinda like it did happen, and then the NHL went to court. Let's sort it all out.

First of all, decertification, which is not a thing that happened, is when the membership of a union votes to revoke that union's right to represent them. If that vote passes, it is brought to the National Labor Relations Board (you'll hear more about the NLRB later), which then officially dissolves that union as a negotiating body. So, if the NHLPA were decertified, it would no longer have the right to negotiate deals (such as the CBA) for the players, and the players would no longer be unionized. More on the consequences of that shortly.

A disclaimer of interest, which is what might actually happen, is when the union itself decides to stop representing its members. This is apparently much simpler than decertification, as it requires neither a membership vote nor the involvement of the NLRB - the union leadership basically just has to say "we don't represent these guys anymore." Again, the result is that the players are no longer unionized; it's just a different (and much easier and faster) path to getting there.

Understand: so far, the players have not begun a vote to decertify, and the NHLPA itself has not disclaimed interest. Last week, the NHLPA agreed to have the players vote as to whether or not to authorize the PA to disclaim interest. That's what happened: a step on the way to a disclaimer of interest. Now, starting yesterday, and until Thursday, the players will vote on this authorization. If it passes (and it is expected to pass), then the NHLPA will consider a disclaimer of interest. Remember that it's a disclaimer of interest, not decertification, so it's up to the union itself, not its membership, to officially do it. While we can expect the union to likely disclaim interest once the vote passes, it's important to note that the vote passing will not immediately mean that the union is dissolved.

So, let's say that Thursday comes, the players agree to authorize the NHLPA to disclaim interest, and then the PA does so. Then, the NHLPA would be dissolved, and the players would no longer be unionized. How does this actually give the players leverage (the "take my toys and go home" tactic notwithstanding)? Well, basically, if there's no players' union, there's no body to agree to things like a CBA, and, consequently, to agree to things like salary caps and contract restrictions - all of which would be profoundly illegal if they hadn't been collectively bargained and agreed upon by the union. Think about it: if the top 30 employers in your particular field, whatever it is you do, all got together and agreed that none of them would ever pay anyone with a particular job more than a certain amount of money, you'd probably think that violates some sort of anti-trust laws, yeah? Well, it would in this case, too.

And if there's no union collectively representing them, the individual players now become free to take the NHL to court for things like that. And hey - you know what else might be considered illegal in the absence of a labor negotiation? Those 30 employers collectively agreeing not to, say, lock out everyone with a particular job. Which is really the primary unspoken next-step threat here: if the players end up deunionizing (which cannot possibly be a word), they then individually (or as a class action, I guess) take the NHL to court to try to get the lockout declared illegal.

Which is not to say they would succeed. In the absence of a union, the lockout isn't necessarily illegal, but it isn't necessarily legal, either. But challenging the legality of the lockout is not a fight the NHL wants to have to deal with in any case.

Which brings us to the NHL's legal action. In response to the disclaimer of interest authorization vote that's going on right now, the NHL has decided to preemptively go to court. If I understand that it's likely that, after a disclaimer of interest, the players' next move will be to take the NHL to court over the lockout, then certainly the NHL understands that as well. So the NHL has already gone to court, to ask for a court declaration of the legality of the current lockout.

Why is it better for the NHL to take this action than to wait for the NHLPA to take action? Well, in large part, because of where the request was made. US courts are divided into geographical circuits, and different circuits, of course, are made up of different judges and may be likely to rule in different ways. The NHL filed for this declaration in New York, in the Second Circuit, which is known to be a little bit more league-friendly. Had they waited for the NHLPA to file a suit against them, they likely would have filed it in California, part of the more labor-friendly Ninth Circuit. Of course, this doesn't stop the PA from filing a suit in the Ninth Circuit, but it does mean that the first court to start to look at this will be the Second Circuit, which is good for the NHL.

Which actually brings us back to the whole decertification/disclaimer of interest thing. Part of the NHL's argument for the lockout's legality is that any disclaimer of interest filed by the NHLPA would very obviously be a negotiation tactic and not a meaningful dissolution. That argument would have been harder to make after a decertification, since that's a more in-depth process that requires a vote and involves the NLRB. It might be an easier argument to make after a disclaimer of interest, albeit one that also involved a player vote.

But wait! There's more! In addition to asking the courts for a declaration of the lockout's legality, the NHL also asked them for a ruling that, should the NHLPA dissolve, then all player contracts be rendered void. Let that sucker soak in for a minute. The argument goes like this: all player contracts were negotiated according to a very specific set of rules laid out in a collective bargaining agreement between the NHL and the NHLPA. If no NHLPA means no CBA, as discussed above, then shouldn't it also mean that the player contracts described by the CBA (which literally contains within it the "Standard Player Contract" on which all player contracts are based) are also void?

It's not as easy a sell as "the lockout is legal," but if they got it, it'd could be as huge a blow for them as getting the lockout declared illegal would be a blow against them.

Finally, on top of the 2-pronged lawsuit the NHL filed, the league also went to the NLRB (remember how I said you'd hear more about them? I never lie to you) and filed an Unfair Labor Practice Charge against the NHLPA, for what they consider "bad faith bargaining." The NHL is claiming that the NHLPA is threatening a disclaimer of interest without any real desire to dissolve the union, as a negotiation tactic. This could be considered by the NLRB to be an attempt to circumvent the actual collective bargaining process, which would be an illegal negotiation tactic. It's hard to say how the NLRB would come down here, but at the very least, the argument that the NHLPA is using this as a bargaining chip and has no real desire to dissolve is probably a pretty solid one.

Here's the good news (well, the not-as-bad news): there is precedent for this crazy legal cold war to still result in a season. Last season's NBA lockout (remember how nice it was when, not only was there hockey, but as a bonus, there also wasn't basketball?) saw a very similar series of events. All the way back on August 2, the NBA filed in New York to declare its brand new lockout legal, and they filed a complaint with the NLRB, declaring the NBPA uncooperative because the NBPA was threatening to dissolve its union. Then, on November 14, the NBPA actually did disclaim interest, thus dissolving, and sure enough, the next day, individual players filed antitrust suits against the NBA (in the Eighth and Ninth Circuits). Well, the thing is, 11 days later, the NBA and players came up with an agreement; 5 days after that, the NBPA re-formed; and a week after that, the new agreement was officially signed by the NBA and NBPA.

So, the point is: even going through exactly these same apocalyptic-looking steps, the NBA nonetheless settled and found a way to play a season. So there's precedent. But then, no other league really seems to have the same history of obvious animosity that the NHL does, does it? Regardless, we are where we are: the NHL has filed a suit to declare the lockout legal and to declare player contracts void if the NHLPA dissolves; the NHL has filed a complaint with the NLRB to declare that the NHLPA is illegally negotiating in bad faith; and the NHLPA's membership is in the middle of voting to authorize its leadership to file a disclaimer of interest.

And as of exactly one year ago, the NBA had played 4 preseason games.

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