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NHLPA and road to decertification: Is this the NHL lockout endgame?

Greg Wyshynski
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National Hockey League Players' Association boss Donald Fehr has frequently accused his negotiating counterparts of imitating other leagues during their lockout.

In 2004-05, the NHL's owners had vital motivations for their lockout: Losing what they claimed were hundreds of millions on player contracts, needing a salary cap system to ostensibly "save" the league as we knew it.

But what were the motivations for 2012-13? Fehr believes one of them is that 'basketball did it, and so can we'. The NBA's lockout knocked down the players' take in revenue and altered contractual rules in the owners' favor, for no grand philosophical motivation other than the owners' leverage allowing them to do so.

The NBA lockout ended on Nov. 26, with the regular season starting on Christmas Day 2011. A primary factor in getting that deal done: When the NBA Players' Association disbanded and became a trade association, and started filing lawsuits against the NBA. It was seen as the nuclear option for the players, and a move that put the season more at risk than potentially being its salvation. And yet the NBA was back on the court before the New Year.

If Fehr's right and all of this happened before in basketball and will happen again in hockey … well, it's hard not to believe the NHLPA isn't at the decertification phase; or, more to the point, the threat of decertification phase.

It appears that's, in fact, where the players are after the NHL's rejection of its proposal this week. Is this the lockout endgame, or the end of the season we're looking at if the NHLPA goes down this road?

Bob McKenzie of TSN offered a layman's look at union decertification:

Once a union or association is decertified, its legal counsel must seek a preliminary injunction in court that basically says this mass of individual players with contracts is ready, willing and able to fulfill those contracts and that any existing lockout is illegal. And if the court rules in favor of the players, they would be returning to a league with no legal CBA in place and the league would not necessarily have any anti-trust exemptions.

What's that mean in English? The lockout would be considered illegal. No draft, no salary cap, no real rules of any kind, in theory. Potentially, it's chaos. Often times, the mere threat of decertification and going down that uncertain road is what pushes together warring CBA factions.

But decertification can also be a murky world. Free agency, no cap, no draft, yes. Medical benefits and pensions? Well, anything that the CBA previously spelled out would, in effect, be gone.

It's an option that's picked up steam in recent NHLPA internal discussions, as the window of a settlement continues to close despite the players' movement to the owners on core economic issues.

Reading an email from Buffalo Sabres goalie Ryan Miller to the Globe & Mail, it also sounds inevitable:

"It seems like the players in any league are going to be subjected to the same scripted labour dispute developed by [NHL and NBA law firm] Proskauer Rose in all collective bargaining discussions now and in the future. Decertification becomes part of the script because 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."

It's a push back … but as the NFL's players realized, it also doesn't always work.

If there's any good news to be mined from this, it's that the NBA and NFL — two leagues that followed the "scripted labor dispute" narrative — both ended up playing their seasons, rather than having them wiped away. In the NBA's case, a settlement arrived soon after the NBAPA disbanded. Rather than the "nuclear winter" predicted by David Stern, the players were back on the court on Christmas Day.

Maybe it needs to come to this for the players. Maybe simply discussing it passionately and openly is enough of a threat to move the gears on the discussions.

The bottom line remains that neither the players nor the owners have the appetite to see the season cancelled, and their gaps on both economic and contracting issues aren't impossible to bridge.

There's a deal to be made here. There always has been.

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