With each passing day in the NHL lockout, you have to wonder how the people on both sides can actually sleep at night. The only answer this corner can come up with is that when you snuggle up with that much money, it’s pretty easy.
On the ownership side, you have a group that has treated its constituents with an enormous amount of arrogance, secure in the knowledge the fans will come back. And they will because their love for the game exceeds their disdain for those who run it.
On the players’ side, you have a group whose sense of entitlement is utterly astounding. Somewhere along the line, the players have lost their grip on reality. They’ve taken their indignation to mind-boggling levels, quite frankly to the point where most reasonable people want to tell them to just shut up already.
But if the speculation about a move to decertify the NHL Players’ Association is real, that absolutely takes the cake. Just so we have this straight, the players have a union that has made them wildly wealthy and swung the pendulum decidedly in their favor, but at the first sign that the other side is playing hardball, they’re going to stamp their feet and decertify in order to force an agreement?
Incredible. Now I’m no labor expert, but I’d have to think that when the lawmakers in both Canada and the United States drew up the laws governing decertification of unions, they did so in order to protect workers against unions that were corrupt or inept. Last time we checked, the NHLPA was neither of those, at least not today. I can’t imagine they had in mind that millionaire athletes would use this tool as an end-around with their billionaire owners, but that’s exactly what the players’ end game seems to be here.
And that’s exactly what the NHL would argue in court if the NHLPA moved to decertify according to Eric Macramalla, a legal analyst for TSN who writes an excellent blog at offsidesportslaw.com (@ericonsportslaw on Twitter). In fact, Macramalla said that when the National Football League argued precisely the same thing in court during its lockout, the NHL submitted what is called an amicus brief as an interested third party.
“And (the NHL) would argue the same thing, that decertification is a sham,” Macramalla said. “(They’ll maintain) it’s akin to switching a light switch on and off. ‘I’m a union, but now it’s no longer convenient, so I hit the light switch and I’m no longer a union.’ So their argument will be that it’s a sham designed to extract leverage in CBA negotiations and for no other reasons.”
By decertifying, the NHLPA would basically be blowing itself up. And if that’s what they want to do, then all the more power to them. But the only flaw in that argument is that they’ll do it only for as long as it takes the NHL to react, then they will simply reform as a bargaining unit and accrue all the benefits of being represented by union leadership and having strength in numbers.
How is that in any way equitable? Well, it’s not. But that should come as no surprise since the NHLPA is a union in name only. What other union would stand up for the rights of a member who is guilty of workplace violence against another member? What union would restrict the rights of its entry-level workers by allowing the employer to restrict the amount of money they can earn?
If the players were to go down the decertification route, it would have the potential to create an enormous amount of chaos. In effect, the players would be seeking to put an end to many of the labor and business practices that violate anti-trust laws, but are protected by labor agreements that make them immune to those laws. That means everything from the salary cap to the draft would be in jeopardy, and the players would be in a position to argue that the lockout is illegal and are eligible to receive damages for lost wages.
But it can also be a long, drawn-out process which the players themselves will have to support financially and there’s no guarantee they would be successful. But as Macramalla argued, it worked for NFL players, largely because the ramifications for the owners have the potential to be catastrophic, which in turn prompts them to get back to the bargaining table. And the players know this will never get to court because in order for that process to play out, it would take three or four years to unfold.
“A decertification is a massive undertaking,” Macramalla said. “It’s not something a union will do lightly. The union has to ask itself in this instance, ‘Are we close enough to a settlement that decertification is advantageous. Because once we decertify, things become more complicated.”
And a lot more slimy. There is no doubt that integrity and good-faith bargaining have taken enormous hits through this process on both sides. The decertification process would just drag both of those further down into the mud.
Ken Campbell is the senior writer for The Hockey News and a regular contributor to THN.com with his column. To read more from Ken and THN's other stable of experts, subscribe to The Hockey News magazine.