Buzz: The NHLPA’s Next Step Is To File a Disclaimer of Interest

Friedman wrote today “Barring a breakthrough in mediation, it’s expected the NHLPA will begin moving in that direction very shortly. It can take effect immediately. It’s what the NBA did days before reaching a settlement last November.”

On the NBA disclaiming interest last year, Larry Coon wrote at ESPN.com that the NBAPA removed itself as the bargaining unit for the players and converted itself into a trade association.

Derek Fisher, the NBAPA president at the time said, “After two years of making an effort, we concluded that the process has not worked. We cannot get a fair deal.”

Coon adds “In utilizing a disclaimer of interest rather than an involuntary decertification, the players have chosen a timelier but riskier approach. The disclaimer will likely be challenged by the league as a “sham,” as the NFL did when faced with the disclaimer issued by the players’ association; the league argued that the dissolution was merely a negotiating tactic, and that the union was still representing the players’ interests.”

He adds that the big reason to do this is to gain leverage and flip the script, “But the real point of dissolving the union is to generate leverage. The players don’t really want to go all the way to trial — they want to settle. If the players win a major victory early in the case and the owners are forced to accept the prospect of a catastrophic result in court, then the players have gained real leverage.”

Read: Mediators Can’t Work Miracles

At ESPN.com, Lester Munson writes that mediation is the logical and reasonable way to end the lockout.

In the Globe and Mail, James Mirtle writes about how mediation was used during the NBA and NFL lockouts last year but didn’t produce any results.

He spoke with people who were involved in the mediation talks for those two leagues and who said that nothing could be accomplished because of how entrenched both sides were in their beliefs.

He spoke with one person who said that they worked to try and get mediation to work in the NBA and NFL but no progress or deals were made until the union decertified and lawsuits were started.

Scott Burnside writes at ESPN.com that one of the big things that the mediators will have to do is build trust between the two sides. He writes, “Maybe, just maybe, having a third party in the room will help release those toxins and the two sides can get down to the business of saving at least part of the 2012-13 season.”

Pierre LeBrun writes at ESPN.com that one of the main reasons mediation didn’t work in 2005 was because the NHLPA was still insisting on not putting in a salary cap. He notes that this time is different with the gap of only $182 million separating them in the make whole but emphasizes one point, “mediation only has a chance if both parties are open to the process.”

Read: The Players Should Decertify vs the Players Shouldn’t Decertify

At Sportsnet, Michael Grange spoke with prominent NBA agent Bill Duffy who said that he has no doubt that the NHLPA should decertify.

He said that they should have done it three months ago and that it’s the only way the players can get some power back  “It’s the only recourse the players have; otherwise the owners have an unfair advantage. The players should do it.”

Damien Cox sent out two tweets about decertification, saying:

  • If I was a player, I’d sure want to know how long decert process would take, and how much salary I’d lose while that is ongoing.
  •  If players want to sacrifice their massive gains from past 20 yrs by decertifying, then they must surely believe in their cause.

At the CBC, Dan Oldfield, the lead negotiator for the Canadian Media Guild says that decertifying would be a bad idea for them.

Oldfield says that “it’s not as easy as it sounds, and it’s not going to help the players settle their problems with the NHL.”

He says that if the players go through with this then we are talking about a process that will takes “years” and not “months” to go through the courts and get resolved.

Oldfield says that the solution is simple, “by far the best solution is the one that sits in front of the parties now. All the components of a new deal are on the table. Put the right people in the room. Stop swapping proposals, and talk about needs rather than wants.”

Elliotte Friedman has much more on decertification at CBC

Read: Where Both Sides Are At Today

Both Bill Daly and Steve Fehr joined Sportsnet’s Hockey Central program today to talk about a whole host of topics.

Nick Cotsonika, Bruce Garrioch and Chris Botta were all sending out reports from what the Daly and Fehr were saying.

Daly:

  • Bill Daly isn’t scared of the union decertifying and doesn’t think they have much of a chance in court.
  • Decertification would likely end any chance of a season happening
  • Daly isn’t sure that the people leading the players union want to have a season or that mediation would be a good idea.
  • Daly, according to Cotsonika, insinuates that the players want to make a deal and that not all of their wishes are being brought forward by the PA leadership.

Fehr:

  • Fehr says that he has his doubts about the NHL wanting to get a deal done and says that decertification is something they are looking at.
  • He says that they absolutely want to get a deal done
  • Fehr says that the players have moved “a couple of miles” and aren’t prepared to move any further right now. He says that the NHL has moved a couple of inches
  • Daly says that the term “make whole” isn’t correct and they will start calling it transition payments.

Cotsonika tweets “In the end, again, they are close enough to make a deal and there is no excuse if there is no season. I think/hope they will make a deal.”

Read: Time For The Players To Go All-In

At Sportsnet, Nick Kypreos writes about the next step that the players can take in the CBA talks.

He says that Don Fehr needs to have a Plan B or history will just repeat itself for the players once again, ” So for the sake of his 750 hockey players, please tell me he didn’t come all this way without a plan B. Please tell me the players didn’t fire Paul Kelly and hire Fehr just so they can still hand over to the owners $1 billion in cash, concede every conceivable contract right, and then watch their chosen leader fade off into the sunset. If this is the case, they certainly could have saved a ton of money and just kept Ted Saskin.”

On decertification, Kypreos says that doing that would be the nuclear option and be a stark difference from how Bob Goodenow managed the 2004-05 lockout. The union would be dissolved and long with it would the salary cap, linkage to HRR, escrow, salary arbitration and a rookie salary cap. He notes that it could also lead to some owners saying that contracts could be voided and lead to players signing with teams for the highest amount, or as Kypreos notes the Penguins maybe losing Sidney Crosby to a team like the Rangers.

Kypreos says that decertifying could be Fehr’s last ditch effort and hope that the courts end the lockout.

Read: Trying To Make Sense Of Decertification/Ryan Miller Is All For It

In a couple of tweets last night, Darren Dreger said that if the NHLPA decertifies it will effectively end any chance of their being a season this year. Dreger said that it is still early in the process for that to happen and that no one he has spoken with thinks it is a legit play for the players.

Bob McKenzie writes at TSN that players seemed okay with decertification for the first time on Wednesday’s conference call and says that Don Fehr may have the green light to go down that road.

51% of the players need to vote in favor of decertification for it to pass.

The next step would be filing an injunction saying that the players are ready and willing to fulfill their contracts and that the lockout is illegal. If the court rules in favor of the players then the NHL would return with no CBA in place which would mean no draft, no salary cap, no rules and basically “chaos.”

In the case of the NFLPA, which decertified, a court ruled in their favor while three subsequent cases saw that overturned. The NFLPA decertified before the players were even locked out.

Ryan Miller told the Globe and Mail that he doesn’t think anything meaningful will be discussed until the players have filed for decertification.

Miller said, “They want to see if we will take a bad deal because we get desperate or if we have the strength to push back. Decertification is a push back and should show we want a negotiation and a fair deal on at least some of our terms.”

James Mirtle, in the Globe and Mail, spoke with a sports labor lawyer who said that the PA needs to discuss whether it needs some thing like decertification to change the balance of power in the negotiations.

Nick Cotsonika tweets “My guess/hope is that if NHLPA decertifies, it leads to a deal as in other sports and not Armageddon. Owners had to account for possibility.”

Buzz: The Players Could Look To Decertify

In the LA Times, Helene Elliotte writes that after the NHL rejected the NHLPA proposal yesterday, the NHLPA is considering decertifying as a union and filing anti-trust lawsuits against the league.

She writes “Individual players could invoke antitrust laws and ask a federal court to end the lockout or sue the league for unfair business practices that are otherwise protected by a union-league relationship.”

This is a tactic that was used by the NBAPA and NFLPA during their lockouts in 2011.

James Mirtle writes in the Globe and Mail that the NBA signed a new CBA only 12 days after the union decertified.

Larry Coon wrote last year, about the NBA lockout, at ESPN.com, “Here’s the key to the whole process: This bargaining relationship continues to exist as long as the union is in place. If the players dissolve the union, the bargaining relationship dissolves with it. Without the bargaining relationship, the league is no longer shielded from antitrust laws. Much of the economic structure of the NBA — such as the salary cap, maximum salaries, rookie-scale salaries and the luxury tax — could be challenged under the antitrust laws as a form of price fixing if there was no union. The lockout itself could be challenged as a group boycott.”