We're in desperate times in the NHL lockout, which might call for the a desperate measure from the NHLPA: Decertification, which would allow the players to go after the NHL on an anti-trust basis and seek to have a court find the lockout to be illegal.
As NBA fans would tell you, sometimes it takes a drastic measure from the union to end the lockout.
The NBA players formally disbanded their union after six weeks of games were cancelled. Said union president Derek Fisher at the time:
"We've come to the conclusion today that that process has not worked for us. It has not put us in a position to get and to negotiate the fair deal that we've been working to try and complete."
There was immediate concern that the 2011-12 season would be wiped out by the union's decision. Instead, the NBA lockout ended on Nov. 30, around 10 days after a lawsuit was filed by the players and 150 days into the work stoppage.
So based on the NBA's script, decertification would end the NHL lockout, right?
Well … maybe.
Kevin Allen of USA Today asked Gabriel Feldman, an associate professor and director of the Sports Law Program at Tulane, about the NHL and decertification:
"It's a risky maneuver, and there isn't a lot of precedent out there to guide us," Feldman said. "It's not a silver bullet for NHL players, but the benefit it might give the players is to allow them to go on the offensive. At this point, their main leverage is the fact they were sticking together. They weren't cracking as a union. But that's a defensive weapon."
But since it worked in the NBA, it would work in the NHL, right? Well …
After NBA players used dissolution of their union (through disclaimer of interest) last year , they never got far enough along in their case to get a result because they settled.
"My opinion is that (union dissolution) played some role," Feldman said. "It may have been a small role. … The larger factor in getting a deal done was the calendar. I think neither party was willing to risk losing an entire NBA season. Decertification may have slightly shifted the leverage a bit, so that it may have given players a better deal. But I'm not sure decertification could be credited with getting the deal done."
So there are no guarantees; and the process could not only mean the end of this season but prolonged court battles that could span months.
That's why the players acknowledge decertification is an option, but one they're not taking lightly.
Said Vancouver Canucks goalie Cory Schneider to the Leader Post:
As players, one of the only options we have to really apply a little pressure on them and show them that we're serious is to decertify," continued Schneider, a member of the NHLPA bargaining committee. "We've seen that the only way the other leagues got a deal done was that the unions decertified or started the process. It's a very serious decision and something we would have to consider very closely. That's why we're a little reluctant to just charge ahead with it.
"It's a drastic measure but when you're dealing with this group of owners and a commissioner who have shown time and time again that they're willing to lock you out until they get exactly what they want, there is not much choice either."
Said Craig Adams (Ivy Leaguer!) to the Post Gazette:
Are there risks in decertifying?
"Of course. Once there's no union, there's no rules I guess essentially. Players don't have rights that fall under collective bargaining agreements. It's sort a scary proposition for both sides."
Every indication from the players we've spoken to about decertification is that it's an option they're seriously considering after the last round of CBA talks went nowhere. But it's an option they know could end the season as easily as it could salvage it.