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NHLPA decertification would be smart strategy or season-killer

If NHL players turn to litigation, the upcoming season would be in jeopardy. But that's probably not their tactic.

NHLPA Executive Director Donald Fehr (left) with union members (Photo: Chris Young/CP)

As recently as three days ago, the prospect of decertifying the National Hockey League Players’ Association was considered unlikely and drastic. Just last week, union head Donald Fehr told players on a conference call that decertification was one of three options they could pursue at this juncture in the negotiations.

Instead of going that route or capitulating to the owners’ demands, the players chose to continue negotiating. Their solidarity seemed ironclad.

But after league owners quickly dismissed the NHLPA’s latest proposal, it appears that disbanding the union is a more viable option than ever. On Wednesday, The Globe and Mail’s James Mirtle reported that decertification is talked about “more and more” by players. Then yesterday, the Buffalo Sabres’ Ryan Miller publicly threw his support behind dissolving the union.

There’s a big difference between thinking about decertification and actually carrying it out, but if players pursued the second option with litigation, it might sound a death knell on the coming NHL season.

“If [the negotiations go] in this direction, it certainly makes the cancellation of the season much more likely, because it’s going to delay things in all likelihood,” says Michael McCann, a law professor at the University of Vermont who specializes in sports law and writes about legal issues for Sports Illustrated.

“Because then court papers are going to be filed, hearings will be scheduled. Courts move slowly—they don’t respond to the wishes of leagues and players in terms of scheduling.”

By decertifying the players’ union, the NHLPA would become a trade association, says McCann, and could no longer bargain on the players’ behalf. It would pave the way for players to seek an injunction to end the lockout or to file antitrust action against the league.

As it stands, the NHL is allowed to restrict the market—through mechanisms like salary caps, the entry draft and contract restrictions—after agreeing to those terms with the players’ union in collective bargaining.

But if the union doesn’t exist, then the league’s anti-competitive practices could be legally challenged. In a post-union environment, each franchise would act as a competitive business in a free market; it would be illegal to constrain players in any fashion.

If NHL players choose to decertify, they’d be following the lead of players’ associations from the National Football League and National Basketball Association, both of which went through lockouts last year.

Just before the NFL lockout started, the union decertified and a group of players followed by filing an antitrust lawsuit after the lockout was made official. In the end, however, the entire NFL season was saved. NBA players disclaimed interest in their union—something similar to decertification, says McCann—and less than a month later, a 66-game regular season was salvaged with a new collective bargaining agreement.

Of course, unions still exist in both those leagues, so cynics would argue that decertification—or at least the threat of it—is yet another strategic ploy in drawing labour stoppages to a close.

“It does appear that players’ associations are capable of quickly reassembling their union, which lends itself to the idea that it’s orchestrated,” says McCann. “It’s not as if the NHLPA is going to go away if this happens. Now, I certainly think with Donald Fehr there—a pretty strong leader—that the likelihood of the union crumbling… is pretty low.”

Still, decertification is often the last remaining tactic once players’ unions have been weakened by ownership.

“Maybe [decertification] is a necessary step to resolve the dispute,” says McCann, “but it also adds a layer of uncertainty as to having this season occur.”

Should they choose to dissolve their union, NHL players would be taking this action at a much later date than NFL or NBA players. NBA player agent Bill Duffy told Sportsnet’s Michael Grange that NHL players should absolutely decertify, but believed the decision was already three months overdue.