League goes on forecheck

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If union decertification is approved, individual players like Vancouver Canucks' Andrew Ebbett, could sue the NHL for lost wages. (CP ARCHIVES)

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NBA union lawyer Jeffrey Kessler says the NHLPA would be wise to pursue the disclaimer of interest. (AP ARCHIVES)

TORONTO -- The focus of the NHL lockout is shifting from the bargaining room to the court room.

A class-action complaint was filed by the league on Friday which asked a federal court in New York to make a declaration on the legality of the lockout -- a pre-emptive legal manoeuvre that came with the NHL Players' Association moving towards dissolving.

In the 43-page complaint, the league argued the NHLPA was only considering the action "to extract more favourable terms and conditions of employment."

"The Union has threatened to pursue this course not because it is defunct or otherwise incapable of representing NHL players for purposes of collective bargaining, nor because NHL players are dissatisfied with the representation they have been provided by the NHLPA," read the NHL complaint.

"The NHLPA's threatened decertification or disclaimer is nothing more than an impermissable negotiating tactic, which the Union incorrectly believes would enable it to commence an antitrust challenge to the NHL's lockout."

The NHL also filed an unfair labour practice charge with the National Labor Relations Board as the lockout took on a new look in Day 90.

The legal challenges came in the wake of a decision by the NHLPA's executive board to request a vote from union membership that would give it the authority to file a "disclaimer of interest." Should the 30-member board be granted the right, the disclaimer would see the NHLPA dissolved, giving players the ability to file class-action anti-trust lawsuits against the league.

Similar strategies were used during last year's NBA lockout.

Jeffrey Kessler, the lead negotiator for the National Basketball Players Association in that dispute, believes the NHLPA would be wise to go ahead with the disclaimer of interest.

"I think this is much more likely to lead to a settlement sooner," Kessler said Friday. "The players have concluded that they are on the verge of possibly deciding that it is better not to be a union and using the anti-trust laws to attack the lockout, which all fans should be happy with because it'll work.

"I assume the fans would like the lockout to end."

Spokesmen for both the league and the NHLPA declined comment on Friday afternoon.

By filing the class-action complaint in New York, the league guaranteed that the legality of the lockout would be decided in a court known to be sympathetic towards management. If the NHLPA dissolves it will seek to have the lockout deemed illegal -- something that could see players paid triple their lost salary in damages if successful.

With Kessler at the helm, NBA players filed a disclaimer of interest while they were locked out in November 2011. Almost immediately, the owners changed their stance on "maybe 15 or 20 different issues," according to Kessler.

A new collective bargaining agreement was agreed to within 12 days of the basketball union dissolving.

Last week when NHL commissioner Gary Bettman fielded a reporter's question about the NHLPA decertifying, he indicated that the union was more likely to pursue a disclaimer of interest. He also ensured the board of governors was brought up to speed on the issue when it gathered Dec. 5 in New York.

"The board was completely and thoroughly briefed on the subject," said Bettman. "And we don't view it in the same way in terms of its impact as apparently the union may."

Kessler believes that Bettman would have a different opinion after talking with NBA commissioner David Stern, his former boss.

"Dave Stern said the same thing (that he wasn't worried about the union disclaiming interest) and we settled two weeks after the basketball players disclaimed," said Kessler. "So maybe commissioner Bettman should confer with his previous mentor on that."

The NHL's collective bargaining talks have failed to produce much progress. The sides spent two days with a U.S. federal mediator in New Jersey this week and don't currently have any further talks scheduled.

-- The Canadian Press

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