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Will NHL players score with legal deke?

Disclaimer of interest latest tactical move

By: Tim Campbell

Posted: 12/15/2012 1:00 AM | Comments: 0

What's a disclaimer of interest?

Something many fans have already registered in the NHL labour dispute?

If only.

No, it's the latest move -- or threat of move -- by the NHL Players Association as it tries to find traction in the off-and-on negotiation with the league in this lockout.

To help you explain this latest move to the kids playing hockey on your street, we'll make it as simple as possible by putting it into point form.

-- Union Decertification and Disclaimer of Interest are different acts.

-- Decertification is a way for a union (all of this is in the U.S., which is relevant here because this is where the NHL and other sports leagues are based) to disband. This takes collective bargaining out of the equations and leaves players to bargain as individuals or freelancers with a league.

-- This requires multiple steps, the first of which is to have at least 30 per cent of the union members sign the petition to say they no longer want to be represented by their union, in this case the NHLPA.

-- Once those signatures are verified, the National Labor Relations Board schedules a vote of all members, usually within 45-60 days. Majority will rule the vote.

-- Disclaimer of interest is less complicated. It's basically a union saying it no longer wants to represent its members in collective bargaining. Just an official declaration by union leadership is good enough. No votes are required (see below on the NHLPA version). Same result. Members/players would be free to negotiate as individuals.

-- This is the course taken recently by the NBA and NFL players. Before either labour mess proceeded too far, new labour deals were struck with their respective leagues.

-- OK, stay with us here for the hard part. What decertification or disclaimer of interest really does is allows a player or players to sue the league, claiming the league is engaging in an illegal boycott or restraint of trade, or that lockout is illegal because it's stopping the players from earning a living.

-- While they collectively bargain, players would not be allowed to bring such legal action in labour matters.

-- This is the "anti-trust" road. It's fairly complicated, so don't bother the road-hockey kids with this. Only baseball in the U.S. has a congress-approved exemption from anti-trust laws.

-- Basically, the players as individuals could ask for a injunction (a judge or judges to block the lockout and force the league to re-open) and/or damages for lost wages. The damage part is worth noting, for treble-damages (triple damages) are in play in these matters.

-- Those threats or possibilities are what sometimes drive the parties to a deal, or a more reasonable approach to negotiating one. For instance, in the NBA last year, there was a new labour deal 12 days after the union had its disclaimer of interest.

-- But make no mistake, it could go the other way, too. In the NHL matter, it's possible owners might be even less unwilling to compromise and dig in their heels for a long legal fight.

-- The quagmire of the legal road, that it could take years to litigate and resolve, is what should scare just about everybody. Many reasonable people suggest this is the motivation to avoid the long, legal battle and strike a deal, but it's not yet known whether reasonable people will prevail on either side of this NHL matter.

-- The NHLPA executive board has given its blessing to conduct a union-wide vote to authorize a disclaimer from leadership. It is likely hoping that could give them some leverage in whatever talks exist with the league.

-- This vote isn't required, as far as we know, and it's possible it's just a way to dress up the declaration, hoping to make it less vulnerable to the attack from the NHL owners that will be coming, contending the disclaimer of interest is just sabre-rattling, a sham and a tactic, that the union simply doesn't want to bargain. Not to mention like in the other leagues, the union will just reform when it's convenient.

-- Who has the better legal case, the better argument? We don't know, but what we do know is that fans don't want to find out, they'd rather have a deal and get on with games.

tim.campbell@freepress.mb.ca

Republished from the Winnipeg Free Press print edition December 15, 2012 C6

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