NHL Lockout

Exasperated Ryan Miller heartily endorses decertification of union

TORONTO — The Globe and Mail

Buffalo Sabres goalie Ryan Miller makes a blocker save against the Vancouver Canucks during the first period of an NHL hockey game in Vancouver, B.C., on Saturday March 3, 2012. THE CANADIAN PRESS/Darryl Dyck (DARRYL DYCK/THE CANADIAN PRESS)

Ryan Miller wanted to make it clear he was speaking only for himself.

But the Buffalo Sabres’ goaltender also wanted his name attached to his comments and to take a stand on the controversial subject of decertifying the National Hockey League Players’ Association as the next step in the lockout.

He is for it, and he doesn’t mind explaining why.

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“After watching the other sport leagues go through labour disputes last year, it is apparent that until decertification is filed, there will not be any real movement or negotiation,” Miller wrote in an e-mail to The Globe and Mail. “Many things in our negotiation are very consistent with the NFL and NBA negotiations, and both of those leagues filed papers necessary to decertify.

“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.”

Decertification – essentially the dissolution of the union – has been discussed by NHLPA members under executive director Donald Fehr going back to at least September, but it was believed to be a last resort.

The move would open the door to either push for an injunction to end the lockout, or an antitrust lawsuit, avenues the NFL and NBA players pursued last year during their labour stoppages.

But NHL players, in general, have been defensive of their union. The notion of tearing the PA down has struck about half of the membership as too militant an option. At least, it did until the owners summarily rejected what the players believed was a significant proposal on Wednesday in New York.

“This is going to galvanize them,” one member on the players’ side said.

Outside observers of the lockout are surprised the players didn’t contemplate decertification earlier than this week. Nathaniel Grow, a sports labour law expert from the University of Georgia, has written extensively on the process, including an article this year titled Decertifying Players’ Unions: Lessons from the NFL and NBA Lockouts.

He explained that NHL players would gain multiple options after decertifying, whether short term (an injunction to end the lockout or even just better their negotiating position) or long term (financial damages as the result of an antitrust suit).

“Unless the NHLPA really think they’re going to get a deal here in the next two weeks, the downside to dissolving the union isn’t that great,” Grow said. “It seems like they’re at the point where they’re about to exhaust the benefits of unionism. You have to start more seriously questioning if you need a game changer here to reshape the balance of power in negotiations.”

The case law resulting from professional athletes pushing for injunctions or antitrust claims remains up for debate, Grow added, and the uncharted areas could be where NHL players – who would then be led by legal counsel instead of a union – find leverage.

Whether it makes sense for professional athletes to have a union at all is also now a point for debate after the mess negotiations have become in the NFL, NBA and NHL in the past 18 months.

“A lot of academic commentators would tell you it’s the leagues that really want the unions,” Grow said. “Because under U.S. law … they can violate federal antitrust laws in ways that they couldn’t if the players weren’t unionized. Normally, under antitrust laws principles, a salary cap would be illegal.”

Despite increasing talk of decertification, there remains room for the NHL and its players to negotiate to save what would be a roughly 65-game season.

The NHLPA’s latest proposal put the two sides only $182-million (U.S.) apart over the next five years, and in their meeting, Fehr indicated to Bettman that there was room to negotiate off their concepts. So if the league makes the next offering and there are aspects the players can get behind, there may yet be hope for all involved.

Miller, however, is skeptical, and he has some company among his fellow veteran players, many of whom lived through the full season lockout in 2004-05. They don’t see a willing negotiating partner on the other side – players at Wednesday’s meeting complained that the owners in attendance showed little interest in their proposal – or a just resolution without more drastic action.

Despite the fact that every day without an agreement is another chunk off his substantial contract, Miller said this week he wants to fight the good fight, one that can strengthen the players’ ability to bargain long term and eliminate the lockouts and ultimatums from ownership every seven years.

If decertification is the way to do that, then so be it.

“I am tired of the disregard and the ego,” Miller said. “Our fans and sponsors are alienated, and this is hurting the game. This process has more of the appearance of brand suicide than a negotiation.”