Few can forecast where the NHL collective bargaining agreement talks will ultimately lead, but based on the paths of other professional sports that found themselves in stalled negotiations, many are aware of the next move.
And it belongs to the NHL Players' Association.
Following the league's rejection of the NHLPA's proposal last week, the union could soon decide to decertify its status as the players' bargaining representative, a strategy recently employed by both the NFL and NBA unions.
Decertification is a potential way of making the lockout illegal because, in the absence of a union, leagues are negotiating under antitrust law instead of common labor law. Players who are ready and willing to fulfill their contract obligations are then considered to be on their own and able to file individual lawsuits.
"There are two sets of laws which govern these situations," NHLPA executive director Don Fehr told reporters over the weekend. "What happens is from time to time, unions and sports unions have essentially said that there are circumstances in which the members would be better off without a union and taking action under the antitrust laws. And that's all I can say about it."
When asked whether it was too soon to suggest that decertification was a strong possibility, Fehr replied: "I don't want to tell you what's too soon. You can look at what's happened in the other sports and make your own judgment about that."
In early 2011, the NFL and the NFL Players' Association were engaged in a contract stalemate when the union vetoed the owners' proposal and voted to decertify. On March 12, 2011, the lockout became official, leading players such as Peyton Manning, Tom Brady and Drew Brees to file antitrust lawsuits.
In April, a judge ruled in favor of the players, but in July, an appeals court overturned that decision, making the lockout legal. But talks picked up and the NFL reached a new deal with the union in late July.
In November 2011, negotiations between the NBA and the National Basketball Players' Association also hit a wall, and the union continued the trend of decertification. After five months of talks, the disbanding of the union and ensuing lawsuits led to around-the-clock bargaining and an agreement that put the game back on the court on Christmas Day.
In a recent interview with the Toronto Globe and Mail, Buffalo goaltender Ryan Miller noted the similarities in the bargaining blueprints of the NBA and NHL and said that decertification may be the players' best option.
"It seems like the players in any league are going to be subjected to the same scripted labor dispute developed by (NHL and NBA law firm) Proskauer Rose in all collective bargaining discussions now and in the future," Miller told the Globe and Mail. "Decertification becomes part of the script because (NHL commissioner) Gary Bettman and the owners are trying to get a sense of how far they can push us, and at some point we have to say 'enough.'
"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."
Last week, the NHLPA submitted a five-year proposal that moved toward the league's plan but asked for $393 million -- spread out over the length of the deal -- that would "make whole" players' current contracts. The league was offering $211 million, leading Fehr to point out that the lockout was being held up by a difference of $182 million.
But on the same day, the NHL rejected the offer and a couple of days later announced the cancellation of regular-season games through Dec. 14 and the All-Star game, scheduled for Jan. 26-27 in Columbus.
The league has since indicated that its make-whole offer, specifically the amount originally allocated, could be rescinded.
All of which leads back to the possibility of the NHLPA decertifying.
"It suffices to say all things are under consideration," Steve Fehr, the union's executive assistant and brother of Don Fehr, told a Toronto radio station last week.
The NHL is more than aware of the possibility and is probably preparing for it. But as Bill Daly, the league's deputy commissioner, told the same radio station last week, "I wouldn't view an antitrust lawsuit in this case to be anything other than an unfortunate development, because I think it's a time-consuming process that would likely lead to the end of the season."
Distributed by MCT Information Services
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