NHL files class-action suit against players' union

TORONTO — The Globe and Mail

National Hockey League commissioner Gary Bettman describes negotiations between the NHL and the NHL Players Association (NHLPA) regarding the difficulties of their current labour talks in New York, December 6, 2012.

(Reuters)

Get ready for the NHL lockout to hit a new level of ugliness and incomprehensibility.

The U.S. court system is about to get involved in hockey’s labour dispute, a development that could either bring a swift halt to the fight or drag it out for months.

On Friday afternoon, the league filed a class-action lawsuit naming 36 players – including the entire negotiating committee of the NHL Players’ Association – in federal court in New York “seeking a declaration confirming the ongoing legality of the lockout.”

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The NHL also filed an unfair labour practice charge with the U.S. National Labor Relations Board alleging that the NHLPA “has engaged in an unlawful subversion of the collective bargaining process.”

Those filings were made in response to reports earlier in the day that the NHLPA was preparing to ask for a full membership vote to give its board the authority to dissolve the union, a manoeuvre that would allow players to take their case to court in an antitrust case.

That vote was expected to be held “as soon as possible,” according to one player source.

In a statement, the NHLPA said as of late Friday, the union had yet to receive the league’s lawsuit, but that they believed the NHL’s “position is completely without merit.”

The NHL’s filings mirror those made by the NBA last year during its labour dispute, when similar talk of dissolving the union led to the league pre-emptively arguing the lockout’s legality in court.

The 43-page class-action suit filed Friday contains several potentially controversial sections, including No. 14, which calls for existing contracts to “be void and unenforceable” if the union decertifies and several of the league’s other requests are not granted.

“The similarities between this complaint and the NBA’s last year are striking,” said Nathaniel Grow, a sports labour law expert from the University of Georgia who noted both leagues use the same New York law firm, Proskauer Rose.

Grow added that the NHL’s litigious response to talk of dissolving the union wasn’t a surprise.

“The NHL would argue that today’s news that the NHLPA was beginning the disclaimer of interest process gave rise to an actual legal dispute between the parties, giving the court jurisdiction over the case,” he said.

“The league wanted to file suit first in order to decide for itself which court the case will be heard in. New York courts’ interpretation of federal antitrust and labour law is generally more favourable to the league than would be the case in other states.”

More than a prolonged court fight, pro sports unions have generally turned to a disclaimer of interest as a way to give them additional leverage in negotiations.

Whether the manoeuvre is effective is up for debate. Players in the NFL and NBA went that route last year during their lockouts, and advocates on their side still believe the move helped them get a better deal.

Jeffrey Kessler, who represented the NFLPA and NBPA in those disputes, said in both cases the players received more concessions after dissolving the union than they otherwise would have.

“In the NFL, the players concluded there was no benefit to being a union,” Kessler said. “The owners were so dug in. As a result [of disclaiming interest] they eventually settled litigation which led to them getting 55 per cent of NFL revenue last year without losing one game.

“In basketball, the players were completely stymied by impossible negotiating tactics,” he added. “So the players decided to end the union and two weeks later they reached a settlement which preserved basically their entire free agency structure with no change.

“Are those good results or bad results compared to what NHL players are facing today?”

That recent history is why, despite the growing ugliness between the two sides, many observers believe the legal battle the NHL initiated on Friday doesn’t necessarily mean the entire 2012-13 season will be wiped out.

The NBA’s example is the most striking. On Nov. 14, 2011, commissioner David Stern declared that the “season is now in jeopardy” after players filed a disclaimer of interest earlier in the day.

Twelve days later, they had a tentative agreement on a 66-game season.

“That happened only two weeks after decertification,” Kessler said. “A complete change in the owners’ position.”

A repeat of that would be the best-case scenario for the NHL and its players, but this new legal fight also opens the door for there to be more animosity and the potential that the two sides could become dug into their positions even further.

There are realistically only four or five more weeks left to continue bickering before a 48-game season can be salvaged, and dual court proceedings – one for the league’s suit and one for a potential one from the players – could eat into that time quickly.

Because the time needed to fully play out the litigation would likely end any hope of playing games, the only winners of a court battle that prolonged would likely be the lawyers.