NHL, players locked in high-stakes legal battle

VOTING will continue until Thursday among members of the National Hockey League Players Association, who are being asked to express their favour or disfavour with what effectively is a dissolution of their union.

The league's more than 700 players have been locked out since Sept. 15 while the sides have hammered away at each other in collective bargaining.

Apparently at or near bargaining impasse, the executive board of the NHLPA has asked its members to authorize a "disclaimer of interest," in which the union leadership including executive director Don Fehr would cut the players loose, no longer representing their bargaining interests.

That would theoretically have them make their own deal with the NHL, but the intent has been clear -- to allow the players to file an anti-trust legal action against the league.

The claim would be that the NHL has collectively and illegally conspired to deny them work and might seek an injunction to force the league to open for business.

"With no negotiations going on, this was probably the next step for us," Winnipegger Travis Zajac, a member of the New Jersey Devils, told reporters at the MTS Iceplex on Monday. "It's obviously an option we're looking at. Nothing's been decided yet and we'll see where that goes."

It has been reported that the NHLPA's executive board is looking for a two-thirds majority to endorse the action, which would be valid until Jan. 2.

Players around the league are voting electronically.

"I don't know if it helps the process, me telling you which way I voted," Zajac said. "I'll just keep that to myself.

"But I'd still like to see a season and I still think sides are close enough that something can get done."

The 27-year-old centre said he is worried that with a flurry of legal steps now underway -- the NHL filed a class-action suit and a complaint to the U.S. National Labour Relations Board on Friday -- the cancellation of the 2012-13 season is now more of a worry.

"Yes. Obviously you would like not to go down this road but this is kind of the option we're left with," Zajac said. "Hopefully something can still get done and this pushes one side or the other to start talking again."

The NHL, in its pre-emptive moves on Friday, is asking a New York court to make a judgment that its lockout is legal, given the "disclaimer of interest" vote the NHLPA is undertaking.

The league contends the disclaimer of interest would be "an impermissible bargaining tactic," in its class-action suit, effectively calling it a kind of sham.

In its suit, the league is also seeking a declaration that all existing contracts be voided in the event the court doesn't judge the lockout as legal and if the NLRB allows decertification or disclaimer of interest.

The league contends if that dissolution of the union is allowed, then the collective-bargaining system, which governs all contracts, no longer exists.

Why are the players voting in the first place, when a vote is not legally required to file a "disclaimer of interest?"

(The NHLPA has chosen this course as opposed to a decertification of the union, a more formal process through the NLRB that does require a vote and may take several months.)

The director of the Tulane Sports Law Program, Gabriel Feldman, has written extensively on sports leagues and labour issues and he told the Free Press on Monday the NHLPA may be attempting create a "hybrid" method of decertifying/disclaiming.

"The vote to authorize disclaimer is not a legal requirement," Feldman explained in a note. "The requirement for disclaimer is that the union clearly indicates that it no longer represents the employees in collective bargaining.

"My sense is that the vote is designed to enhance their case and indicate that the dissolution of the union is real. In a sense, it's a hybrid of decertification (without the formal NLRB vote) and disclaimer."

Today is the lockout's 94th day. The league has cancelled all games through Dec. 30, plus the Jan. 1 Winter Classic game.

tim.campbell@freepress.mb.ca

Republished from the Winnipeg Free Press print edition December 18, 2012 C3