The best way to describe today's move by the NHL is a pre-emptive strike. The 43-page "Declaratory Judgment Complaint" comes complete with a lengthy history lesson into the tactics of Jim Quinn, a lawyer I wrote about earlier this week in "30 Thoughts."
The filing points out several occasions in Quinn's legal career going back to 1976 where it is claimed he used decertification or a disclaimer of interest as a tactic to get a new Collective Bargaining Agreement done with the NBA or NFL.
(Quinn's law firm is advising the NHLPA in the current lockout, after taking a similar position one year ago with the National Basketball Players' Association. Despite that, he was trusted enough by NBA commissioner David Stern to help broker a deal that ended that dispute.)
The league also uses quotes and tweets to try and establish that this is nothing more than a tactic.
For example, it pulled this Ryan Miller quote from a Globe and Mail article dated Nov. 22: "Decertification becomes part of the script...[and] is a push back and should show we want a negotiation and a fair deal on at least some of our terms."
(Well, now we know another reason the NHL doesn't want its owners talking.)
Another area of interest involves player contracts. In this complaint, the league asks for the court to make several declarations in its favour. They include the "Lockout is lawful and protected by antitrust act by virtue of labour exemption in Clayton Act," and "any purported harm to the NHL players flows from and is a result of the NHL's statutorily protected lockout and thus cannot provide the basis for an antitrust damages claim."
Important points
The two points are important, because, when the NFL players tried decertification last year, they lost the fight for an injunction declaring the lockout illegal (on appeal) but settled before any ruling on whether or not they deserved damages for harm.
Realizing that, the NHL filing continues, "In event court does not grant these declarations, it requests another one indicating if NHLPA's decertification or disclaimer were not deemed invalid and the collective bargaining relationship between the parties were not otherwise to continue, all existing contracts between NHL players and NHL teams would be void and unenforceable."
That would really be something.
Clearly, the league's been working on this for a while, as the threats of decertifying or filing a disclaimer of interest grew from the NHLPA. But the NHL didn't wait that long, making its move after news broke the players were going to vote on whether or not they wanted to authorize their executive board to decertify -- should it want to.
The NBA made the same move in August 2011, accusing its players of these kinds of threats. (The two lawsuits are eerily similar, since they were authored by the same law firms. They feature the same history lesson, but the NHL's goes into much more detail with the quotes and tweets.)
This doesn't preclude the NHLPA from going through with a disclaimer or decertification. It shouldn't be a surprise the players sent a trial balloon before jumping in with two feet, because they are trying to determine if an actual attempt to do it will result in a cancellation of the season.
It could also solve the lockout. Stern warned a similar move by the basketball players threatened to eradicate the 2011-12 season, but 12 days after it was filed, there was a temporary agreement.
Maybe the same thing would happen here. But, this is such a bitter, angry dispute that there are people on the NHL side who want to see if the fight can be won. (Other leagues would love it, because it's been such a successful tactic for players' unions.)
Great risks
The risks are great, though. Triple damages if you lose. And these are not short proceedings.
A couple of other notes:
- The NHL made sure to file in New York, a state that tends to be slightly "pro-employer" in these matters.
- The suit named all the members of the NHLPA's Negotiating Committee, from Craig Adams to Henrik Zetterberg. It also named five other New York State residents with differing contract situations: Mark Eaton (unrestricted), Michael del Zotto (restricted), Ryan McDonagh (who has an NHL deal but is playing in the KHL), Cristobal Nieves (an unsigned Rangers draft choice) and Shane Prince (a Senators prospect with an entry-level contract).
Why?
According to Tulane law professor Gabe Feldman, who has become my guru on these matters, "Different classes of players will have different claims under antitrust law because they will arguably have suffered different damages and be in different legal situations.
"For example, there may be a difference in the legality of locking out a player under contract versus a player who is not under contract. In the NFL litigation, the 8th circuit drew a distinction between those under contract and those not. The NHL is seeking a declaration that the lockout is legal with respect to all these types of players."
Anyways, hope all of this gives you a clearer picture. Of course, none of this prevents the NHL and NHLPA from negotiating.
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