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What is "decertification"?


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#1 Lui's Knob

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Posted 22 November 2012 - 06:49 PM

Seems to be the ace card up Fehr's sleeve and the common buzzword over the media and NHLPA- but I'm not sure anyone really understands what that accomplishes, or if it will backfire on the players entirely (ie. lost season, no benefits, NHL set reduced wages, etc, etc...)??? Interestingly NFL and NBA went or nearly went down this road before a new CBA was signed = perhaps the season is closer than we think???
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#2 RAMBUTANS

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Posted 22 November 2012 - 06:51 PM

It's like when a soldier abandons his assignment.
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#3 The Bookie

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Posted 22 November 2012 - 07:09 PM

If the players wanted to take direct legal action against the owners over their contracts, they would be blocked by labour laws, hence the need to decertify the union.

http://www.constanti...60art011811.pdf
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#4 The Bookie

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Posted 22 November 2012 - 07:19 PM

this is Bob McKenzie's explanation:

If the average hockey fan is confused or perplexed by the economic intricacies and guiding principles of this lockout from both sides, their brains are likely to explode just trying to get a handle on the meaning/pros and cons of union decertification.

Before we try, in 30 words or less, to explain the essence of decertification, Barrister Bob (that's me, and not to be confused with Dr. McKenzie, who makes off the cuff medical assessments) will tell you what appears to be legally required to decertify the NHLPA.

First, the NHLPA must petition for the mere opportunity to decertify. A petition signed by one-third of the NHLPA is required to launch the process. If that petition is successfully executed, decertification could go to a membership vote, with simple majority rules. So if 51 per cent of the NHLPA membership voted in favor of decertification, the NHLPA would technically no longer exist.

The NHL would no longer have a union to bargain with. Don Fehr, technically, would no longer represent the players.

Once a union or association is decertified, its legal counsel must seek a preliminary injunction in court that basically says this mass of individual players with contracts is ready, willing and able to fulfill those contracts and that any existing lockout is illegal. And if the court rules in favor of the players, they would be returning to a league with no legal CBA in place and the league would not necessarily have any anti-trust exemptions.

What's that mean in English? The lockout would be considered illegal. No draft, no salary cap, no real rules of any kind, in theory. Potentially, it's chaos. Often times, the mere threat of decertification and going down that uncertain road is what pushes together warring CBA factions.

But decertification can also be a murky world. Free agency, no cap, no draft, yes. Medical benefits and pensions? Well, anything that the CBA previously spelled out would, in effect, be gone.

And just because a union decertifies doesn't automatically guarantee a court will rule in the players' favor on the preliminary injunction that would make the lockout illegal.

The NFL Players' Association decertified, got a favorable court ruling on the preliminary injunction but another court, in three separate instances (a stay, an extended stay and a formal ruling), reversed and overruled the initial court's ruling.


http://www.tsn.ca/bl...nzie/?id=410081
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#5 surtur

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Posted 22 November 2012 - 08:05 PM

no need for decertification...yet, that is basically a last ditch effort when the union and owners are miles away. and from what is being let out to the public this is not the case they are not miles away. but it can change at any time if the owners decide to get tough and ignore anything the union is trying to get. basically if it comes down to a take it or leave it option and that option is the players taking it up the yingyang they can do this and try to save themselves from being completely violated.

who knows it could be awesome/or real bad for Hockey, no rules as per who plays where and for how much. it could reward the few teams that actually make the league some money instead of punishing them with low caps and contract rules. but then we could also see the Leafs win a cup when they offer the top players in the league 40 million for 1 year. to win a cup..........
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#6 DeNiro

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Posted 22 November 2012 - 09:30 PM

They won't decertify. Why would Fehr advise them to do that? He would basically be firing himself as head of the union.

There are really no guarantees with that course either.

The sides are closer to getting a deal done, there's no need for that. Maybe if it starts going into year 2.
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#7 Provost

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Posted 22 November 2012 - 11:33 PM

I will preface this all by saying that even though I do have quite a bit of LR and CBA negotiating experience... it has all been on the employer side, and I have never been involved in a decertification process.

But from everything I learned and have seen, it is also almost an impossibility in this particular case... there are vastly different rules for decertification in every jurisdiction they have teams in. You could end up in court for months just to determine what % of players need to vote for a petition to the courts to even ALLOW a decertification vote. Then there are the rules about decertification itself... not least of which is what each jurisdiction considers the "open window" (which is basically a timeframe when a members are allowed to decertify their union, you aren't just allowed to do it anytime)... some places expressly forbid open windows after a CBA has expired. The PA would have to find a jurisdiction that they operate in (a state of province) and file a petition there... that jurisdiction has to agree to even hear it, and then have to have the intestinal fortitude to make a decision that will impact every other state and province that the league operates in... a decision that may go against their laws. The league can happily argue against it probably with a lot of success.

Then a court has to actually agree to the decertification itself, which is a real crapshoot because they don't like being used as a tool in labour disputes... the players would actually have to show that they really mean to decertify their union and not just having fancy legal trickery to disband one, and then restart it again under a different legal entity. The court can also easily impose a federal mediator to deal with the two parties before agreeing to allow any decertification votes. It would likely not be looked on very positively not to have tried to use a mediator yet in the process.

Decertification is supposed to be used when a union is flagrantly not representing their members... using it for other purposes is not really tested in court and goes against the intent of the labour laws that govern the process. I certainly wouldn't bet on it as a winning strategy, and I think the media and a couple of barrack room lawyer type players may be the only ones who think it is a real possibility.

Edited by Provost, 23 November 2012 - 12:13 AM.

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#8 TOMapleLaughs

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Posted 23 November 2012 - 12:02 AM

Chaos.

It has to jump through several legal hoops before happening and it's a source of yet more frustration for the general fan using common sense.

There isn't even a legitimate reason for the lockout, yet now we're talking about the desperate measures of decertification?

It's going to be tough for them to regain their fans.
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#9 Salmonberries

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Posted 23 November 2012 - 06:09 AM

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#10 ice orca

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Posted 23 November 2012 - 07:41 AM

I will preface this all by saying that even though I do have quite a bit of LR and CBA negotiating experience... it has all been on the employer side, and I have never been involved in a decertification process.

But from everything I learned and have seen, it is also almost an impossibility in this particular case... there are vastly different rules for decertification in every jurisdiction they have teams in. You could end up in court for months just to determine what % of players need to vote for a petition to the courts to even ALLOW a decertification vote. Then there are the rules about decertification itself... not least of which is what each jurisdiction considers the "open window" (which is basically a timeframe when a members are allowed to decertify their union, you aren't just allowed to do it anytime)... some places expressly forbid open windows after a CBA has expired. The PA would have to find a jurisdiction that they operate in (a state of province) and file a petition there... that jurisdiction has to agree to even hear it, and then have to have the intestinal fortitude to make a decision that will impact every other state and province that the league operates in... a decision that may go against their laws. The league can happily argue against it probably with a lot of success.

Then a court has to actually agree to the decertification itself, which is a real crapshoot because they don't like being used as a tool in labour disputes... the players would actually have to show that they really mean to decertify their union and not just having fancy legal trickery to disband one, and then restart it again under a different legal entity. The court can also easily impose a federal mediator to deal with the two parties before agreeing to allow any decertification votes. It would likely not be looked on very positively not to have tried to use a mediator yet in the process.

Decertification is supposed to be used when a union is flagrantly not representing their members... using it for other purposes is not really tested in court and goes against the intent of the labour laws that govern the process. I certainly wouldn't bet on it as a winning strategy, and I think the media and a couple of barrack room lawyer type players may be the only ones who think it is a real possibility.

When the NFL union decertified and went to court the owners had to open the Real books and ended with big mud on their faces. They also found out the owners were in collusion to break the union. Does Bettman and the owners want to go down this road and end up in courts in both countries? It actually got the NFL and the players to bagain in good faith and got what seems to be a decent deal in place for both sides. Double edged sword for both the players and owners because it opens up every thing for everybody to see.
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#11 Shift-4

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Posted 23 November 2012 - 09:30 AM

Chaos.



Exactly what I was going to say.

If they really want to try it to it's end that is what we will have.
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#12 Provost

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Posted 23 November 2012 - 12:24 PM

When the NFL union decertified and went to court the owners had to open the Real books and ended with big mud on their faces. They also found out the owners were in collusion to break the union. Does Bettman and the owners want to go down this road and end up in courts in both countries? It actually got the NFL and the players to bagain in good faith and got what seems to be a decent deal in place for both sides. Double edged sword for both the players and owners because it opens up every thing for everybody to see.


This is an excellent point... there will be competing motivations for Bettman. His tendency when pushed is to "double down" and entrench himself further in an effort to win at all costs. That means that it would be useless for the PA to use the threat of this process as a bluff like the NBA did.

On the other hand as you say, they would have to open up their business to outside scrutiny. The NHL is WAY more of a closed shop than the other leagues and has zero transparency because they don't think it is anyone's business how they run their ship (even when their franchise owners are asking for millions in taxpayer subsidy). There will also be information that would come out that would embarrass Bettman because no no one really believes he has been truthful in this "state of the league" addresses in the past few years.

No idea which motivation would win to tell you the truth. One thing I do know is that that I would rather fight Bettman in the court of public opinion rather than in front of a judge. He is made for courtroom battles and would be tough to beat.

In any regard, it is a really remote possibility that I can't believe is as close as the media types are saying (they need to fill space with something). I couldn't see it until after we lose the whole season and are still making no progress for next year.

I actually believe it would be more likely for a group of owners to threaten to split off from the NHL than the players to successfully decertify. There has to be a bunch who are losing a ton and are getting annoyed that 7 or 8 of the bottom revenue/hardline owners can hold the majority hostage in any votes. Reading between the lines with stuff Gillis has said, I bet the Canucks would be one of them. He has made it clear that they have had no voice in the proceedings.... it is the old boys network like Burke who run the show, not guys like MG. If 10-15 of the major market teams said that they were done with the lockout and made an ultimatum it could get ugly.
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#13 Drybone

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Posted 23 November 2012 - 03:42 PM

Bettman has already won both the legal court battle and the court of opinion.

Players can de certify their union all they want. Then they can go through the Steve Moore process of suing to have their contract enforced.

Meanwhile, in the intervening 70 years, they might re join the NHL and sign a new contract and waive the old one. Or grand father the old one.

i cant even begin to tell people how dumb this is. It is self defeating. They are going to sit out for YEARS more waiting to have their case heard ? NHL can spin and delay it forever.

Here is a better idea.

ADMIT the union lost, stop fighting, start playing an live to fight for the next CBA.

Win for the owners. Win for the fans, win for the players. Loss for Fehr.

Lets get on with it.
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#14 lowest common denominator

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Posted 23 November 2012 - 05:55 PM

Here is a better idea.

ADMIT the union lost, stop fighting, start playing an live to fight for the next CBA.

Win for the owners. Win for the fans, win for the players. Loss for Fehr.

Lets get on with it.


I don't know much about contract law but why can't the players do as you are saying, concede defeat and accept terms of surrender and then withhold all non essential services. i.e.: play the hockey games and thats it. No photo ops, no media interviews, nothing but playing the actual game.

Players could also take more initiative (as a group) and bring in their own revenue through endorsements and sponsorship deals, thus supplementing their income to offset the "loss" they are taking by conceding defeat.

The globe & mail had an interesting article today quoting an outspoken Ryan Miller regarding decertification.

From my limited understanding, the players ass. actually enables the owners to circumvent many laws (salary cap is the one that comes to mind) which are in place to protect workers rights.
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#15 JAH

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Posted 23 November 2012 - 05:55 PM

Decertification, as I understand it, means:

1- The NHL can no longer negotiate a COLLECTIVE aggreement with the players. All matters pertaining to their employment would be dealt with individually through their individual contracts negotiated between their agent and the GM.

2- The players, once they advise the NHL that they are no longer represented by the NHLPA, would file a lawsuit claiming the lockout is illegal and amounts to anti-trust. This is because the individual clubs cannot band together and deny employment en masse.

3- No salary Cap. It is illegal in the States (and Canada IIRC) for two seperate employers to collude to limit salaries of employees. Remember that the individual clubs are the employers. This also results in total free agency once a player's contract expires.

4- No revenue sharing (likely). Rich teams will no longer help out weak teams.

5- No benefits (pension, health care, etc.) for players unless they manage to negotiate something individually between agent and GM.

Basically, the reason why this process is effective, potentially, for the players is that it removes ALL of the components of the CBA that benefit the owners. In truth, professional sports player unions hurt the players more than they help them nowadays. They limit salaries, free agency, and individual bargaining rights.
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#16 SterlingArcher

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Posted 24 November 2012 - 01:51 PM

It's decertification.

decertify[ dee-sur-tuh-fahy ]verb (used with object) de·cer·ti·fied, de·cer·ti·fy·ing.1. to withdraw certification from.
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#17 davelyn

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Posted 25 November 2012 - 07:52 AM

The players would be stupid to decertify. Part of their standard contract states terms is there MUST be a CBA or it is VOIDED so everyone would be a free agent, they could not have an agent represent them for negotiating purposes, and most likely 6 teams would fold. I don't care for how the owners are going about this lockout but the players have lost more money now then they would have if they agreed to the original offer.
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#18 Drybone

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Posted 25 November 2012 - 10:14 PM

I will preface this all by saying that even though I do have quite a bit of LR and CBA negotiating experience... it has all been on the employer side, and I have never been involved in a decertification process.

But from everything I learned and have seen, it is also almost an impossibility in this particular case... there are vastly different rules for decertification in every jurisdiction they have teams in. You could end up in court for months just to determine what % of players need to vote for a petition to the courts to even ALLOW a decertification vote. Then there are the rules about decertification itself... not least of which is what each jurisdiction considers the "open window" (which is basically a timeframe when a members are allowed to decertify their union, you aren't just allowed to do it anytime)... some places expressly forbid open windows after a CBA has expired. The PA would have to find a jurisdiction that they operate in (a state of province) and file a petition there... that jurisdiction has to agree to even hear it, and then have to have the intestinal fortitude to make a decision that will impact every other state and province that the league operates in... a decision that may go against their laws. The league can happily argue against it probably with a lot of success.

Then a court has to actually agree to the decertification itself, which is a real crapshoot because they don't like being used as a tool in labour disputes... the players would actually have to show that they really mean to decertify their union and not just having fancy legal trickery to disband one, and then restart it again under a different legal entity. The court can also easily impose a federal mediator to deal with the two parties before agreeing to allow any decertification votes. It would likely not be looked on very positively not to have tried to use a mediator yet in the process.

Decertification is supposed to be used when a union is flagrantly not representing their members... using it for other purposes is not really tested in court and goes against the intent of the labour laws that govern the process. I certainly wouldn't bet on it as a winning strategy, and I think the media and a couple of barrack room lawyer type players may be the only ones who think it is a real possibility.


Good points. The practical application plays right into the owners hands.

1) decert to fight for contracts when 90% of the contracts the union has are not affected by the salary cap. The union will NEVER vote to certify so Sidney crosby and other elite contracts can be fought in court. Why would th 90% vote to go to bat for the 10% greed?

2) The owners can pull a Steve Moore and tie it up for years, meanwhile the 10% superstars fighting to enforce it grow OLD and the owners simply offer them virtually the same contracts in a new union. If they reject the new offer, the court will not award them their whole contracts. They cant refuse work and expect the whole contract in compensation. Only the difference.

3) The other 90% of players will willingly tear up their NHLPA contracts and simply sign a new contract with the new union and go back to playing in the NHL and forget the whole thing. You got Crosby and Ovechkin sitting in court whining and complaining.

So forget it. If the NHLPA wants to de certify, it just gives the owners the chance to get rid of the NHLPA and deal with a new union, which I suspect is what they want now anyways.

I have a better idea.

Fire Fehr , and get a hockey guy to approach the owners to work out a fair deal. The owners will deal if they feel they beat the unions attempt to bully them with an outsider.
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#19 Boudrias

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Posted 26 November 2012 - 08:50 AM

Good points. The practical application plays right into the owners hands.

1) decert to fight for contracts when 90% of the contracts the union has are not affected by the salary cap. The union will NEVER vote to certify so Sidney crosby and other elite contracts can be fought in court. Why would th 90% vote to go to bat for the 10% greed?

2) The owners can pull a Steve Moore and tie it up for years, meanwhile the 10% superstars fighting to enforce it grow OLD and the owners simply offer them virtually the same contracts in a new union. If they reject the new offer, the court will not award them their whole contracts. They cant refuse work and expect the whole contract in compensation. Only the difference.

3) The other 90% of players will willingly tear up their NHLPA contracts and simply sign a new contract with the new union and go back to playing in the NHL and forget the whole thing. You got Crosby and Ovechkin sitting in court whining and complaining.

So forget it. If the NHLPA wants to de certify, it just gives the owners the chance to get rid of the NHLPA and deal with a new union, which I suspect is what they want now anyways.

I have a better idea.

Fire Fehr , and get a hockey guy to approach the owners to work out a fair deal. The owners will deal if they feel they beat the unions attempt to bully them with an outsider.

Pat Quinn for new NHLPA head! Played the game and has seen the management side as well. He is a lawyer. Maybe he would throw the Canucks a bone in the process!
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#20 vancanfan

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Posted 26 November 2012 - 09:18 AM

http://slapshot.blog...ould-decertify/

Decertifying would be a big step for the N.H.L. players – and a time-consuming one. Here’s how it would work for the 23 player labor units in the United States. (The seven Canada-based units would have to follow separate decertification procedures in Quebec, Ontario, Manitoba, Alberta and British Columbia.)

  • 1) First, the membership must sign a petition to decertify. If at least 30 percent of the members sign, the process begins.
  • 2) The petition goes to the National Labor Relations Board.
  • a) If 30 to 49 percent of the membership signed the petition, the board sets a decertification election date, usually about 60 days after approving the petition.
  • B) If 50 percent or more signed, the employer may immediately withdraw recognition of the union. But the N.H.L. would be unlikely to do so because it would allow the players to immediately begin filing antitrust lawsuits against the league.
  • 3) Once the labor relations board sets an election date, the union holds a decertification vote on that date. If a majority votes in favor, the union is decertified and its status changes to trade association.
  • 4) The trade association can file antitrust lawsuits against the employer.
It would likely take at least two months for the N.H.L. Players’ Association to decertify, so if the qualifying petition were submitted by Dec. 1, the filing of antitrust lawsuits could not begin until Feb. 1. Even if the N.H.L. buckled immediately, that would probably be too late to save the season. That may have been the basis for Deputy Commissioner Bill Daly’s assertion last week on Toronto radio that decertification would “likely lead to the end of the season.”


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#21 stuckinontario

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Posted 26 November 2012 - 09:45 AM

Cut and pasted this from Darren Dreger's Twitter, but this article has to do with the differences between decertification and what would probably be the case with the NHLPA, which is disclaimer of interest (something slightly different):

http://www.huffingto..._b_1081107.html

Has to do with the NBA specifically, but definitely relevant.
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#22 stuckinontario

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Posted 26 November 2012 - 10:38 AM

NVM that last post, I should've known TSN would just put up a web article detailing the whole bit. Without further ado, witness my cutting and pasting prowess!


LEGAL LOOK: A PRIMER ON NHLPA DECERTIFICATION
ERIC MACRAMALLA, SPECIAL TO TSN.CA
11/26/2012 11:53:40 AM

With talks seemingly stalled, we are hearing the NHLPA and players are considering decertification as their next option. NBA commissioner David Stern characterized decertification as triggering a 'nuclear winter.' Decertification has also been called an AK-47. It's a pretty dramatic tool and can have serious repercussions.

What is Decertification?
It's unlawful for competitors to get together and fix the marketplace. If they do so, they open themselves up to antitrust lawsuits. This applies to the NHL, because the 30 team owners are competitors and they get together and place restrictions on the NHL marketplace. Things like a salary cap, free agency restrictions and rookie pay are all on their face antitrust violations. Another thing that is an antitrust violation: the owners (as competitors) getting together and agreeing to lockout the players.
However, since these restrictions are inside the protective bubble that is the collective bargaining agreement (CBA), the NHL is protected and the players can't sue for these antitrust violations. So the CBA insulates the NHL from antitrust lawsuits.
That's where decertification comes in. It refers to the NHL players revoking the NHLPA's authority to bargain on their behalf and effectively blows up the Union.
And that leads to the important part - by decertifying, the CBA rule protecting the NHL against antitrust lawsuits may no longer apply and players are now free to sue the NHL for antitrust violations. So decertification is like the pin that bursts the protective CBA bubble.
The first antitrust violation the players would tackle in court would be to have the illegal boycott that is the NHL lockout declared unlawful and lifted.

Are Decertification and Disclaimer of Interest The Same?
No. These terms are used interchangeably but are not the same thing. Decertification refers to the players voting to no longer have the NHLPA represent it. It requires the players to vote on decertification and then to subsequently have the National Labor Relations Board validate decertification.
Disclaiming interest occurs when the Union terminates its right to represent the players. It's a less formal process than decertification and only requires the Union to renounce representation of the players. It's easier to do and it takes less time to re-form the Union afterwards.
While they are different, the net effect is the same: the Union is dissolved and the players are free to sue for antitrust violations.

Why Would the Players Decertify?
NHL players hope that the threat of antitrust litigation will pressure the NHL to settle on more favourable terms. So Unions are dissolved in these types of negotiations with a view to extracting leverage in CBA negotiations. In the short term, the threat of a lockout being lifted by way of a court order may give the NHL the incentive to consider settlement. The players could also sue for antitrust violations like the salary cap and free agency restrictions. Antitrust litigation can be a powerful weapon as it can result in the award of treble damages, which refers to three times the actual damages. Simply put, antitrust litigation may result in catastrophic monetary damages awarded against the league. We are potentially looking at hundreds of millions of dollars.

What's After Decertification?
Once the NHLPA is decertified, the next step would be for the players to file a lawsuit asking a court to end the lockout on the basis that it's unlawful. If the players are successful, the NHL would appeal the court's decision.
Ultimately, if the players win and the lockout is deemed unlawful, the NHL would need to resume operations.

Would The NHL Have Any Defences?
Expect the NHL to argue that the NHLPA's decertification is a sham. They would say that it's nothing more than an opportunistic and transparent attempt to extract leverage in CBA negotiations. Decertification is a serious move, and it should not be akin to turning a light switch on and off when it's convenient. Decertification is a far more formal process than disclaiming interest, and as a result may not be as vulnerable to a sham argument.
The NHL could also maintain that federal labor law prevents courts from issuing orders that end lockouts. And there is a precedent for that. That's what the Eighth Circuit Appeals Court ruled in the Tom Brady case, where the players were looking to have the lockout lifted. In that case, the Appeals Court said that the NFL lockout should stay in place because a federal statute called the Norris-LaGuardia Act prevents federal courts from issuing injunctions during labor disputes to end work stoppages.
This decision is important for the NHL. However, it doesn't mean that the NHL would win based on this decision. It's of limited value. While it lifted the lockout, the Appeals Court actually didn't rule on whether the lockout was legal. Had the NFL players pursued the case, it's possible that the lockout could have been declared illegal by the Court. As well, Eighth Circuit decisions are binding on courts within the Eighth Circuit – but not other courts. If the players took the lawsuit to a different circuit, they may stand a better chance.
As for this circuit talk, in the U.S., the Courts of Appeal cover their own individual circuits. For example, the Eighth Circuit Appeals Court handles cases from places like Minnesota and Nebraska.

Where Would The Players File A Lawsuit?
Well it's unlikely to be the Eighth Circuit. The first thing the players would ask for would be to have the lockout lifted and we know that the Eighth Circuit based on the Brady decision might well say no. So the key for the players would be to file the lawsuit in a circuit that is more player friendly. That means they could well file in the Ninth Circuit, which, in part, handles cases from California. This circuit is known to be more progressive and pro-player.

Could The NHL File A Lawsuit First?
The NHL could move pre-emptively - and they probably should if they feel the threat of litigation is real. By filing first and doing so in a jurisdiction that both sides are connected to, it makes it more difficult for the players to have their case heard in a sympathetic circuit like the Ninth Circuit. For the NHL, they could look to file in the Second Circuit, which handles cases, in part, out of New York. That circuit has more owner friendly decisions. In fact, that's precisely what the NBA did faced with the possibility of the NBPA dissolving itself. The NBA went to court first and did so in the Second Circuit.
So overall, the players might prefer the Ninth Circuit, while the NHL might want to head to the Second Circuit or maybe the Eighth Circuit. It will be interesting to see if a lawsuit is filed, and if so, who files first. If I'm the NHL, I'm filing that lawsuit yesterday.

What Would Be Considered A Good Win For The NHL?
If the NHL can get a Court to keep the lockout in place, that would be a big win for the league because the lockout would remain in place for an indefinite period of time. That would undoubtedly create more leverage for the league.
Imagine the opposite - the players win and the lockout is lifted. If that happens, the league would really have to look to get this settled in a hurry. The last thing it wants is to resume operations against its will.

Who Would Win In Court?
The only certainty here is uncertainty. Each side can improve the chances of success by employing a good strategy. However, the law here is sorted and complex and it's too tough to say which side is heavily favoured in court. Frankly, if this ends up in the courts no one will win. There will be losers, though, I suspect. The goodwill associated with the NHL brand will continue to erode. As a result, fans – even those in traditional hockey markets – may turn away from the game. Some may do so temporarily, while others may not ever come back. So everyone loses here – the owners, the players and the fans. Well there are potentially two winners here – lawyers and their billable hours.

If The Players Decertify Is The Season Over?
The season wouldn't be over, but it makes it more likely that there will be no hockey this season. The NHLPA and Donald Fehr are considering this option quite late, and decertification doesn't happen overnight. It can take up to 45 days. That could take us well into January. Then you have the lawsuits. That also takes time. Judges are just going to expedite things because they may be in a hockey pool. Ultimately, though, the players hope that the mere threat of decertification will be enough to get the NHL to settle on more favourable terms.

My Head Is Spinning - Is That Normal?
Totally and Completely.

So What's Next?
Let's see if the NHLPA is decertified and who files a lawsuit first.

Is There A Chance the Lockout Will End Soon?
The hope is that things do get settled in the short term. There are obvious areas of compromise, and the hope is that the sides can settle on them. This isn't 2004. Back then, the NHL business model was broken with up to 73% of league revenue going to players. Fans were more likely to indulge the league as it looked to fix its business. This time around, however, the business model is not broken and the sides are grappling over revenue share. With fans less likely to look favourably on either side, settling soon is in the best interest of all parties involved.

Eric Macramalla is TSN's Legal Analyst and can be heard each week on TSN Radio 1050. You can follow him on Twitter @EricOnSportslaw.
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#23 Drybone

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Posted 26 November 2012 - 11:53 AM

I don't know much about contract law but why can't the players do as you are saying, concede defeat and accept terms of surrender and then withhold all non essential services. i.e.: play the hockey games and thats it. No photo ops, no media interviews, nothing but playing the actual game.

Players could also take more initiative (as a group) and bring in their own revenue through endorsements and sponsorship deals, thus supplementing their income to offset the "loss" they are taking by conceding defeat.

The globe & mail had an interesting article today quoting an outspoken Ryan Miller regarding decertification.

From my limited understanding, the players ass. actually enables the owners to circumvent many laws (salary cap is the one that comes to mind) which are in place to protect workers rights.


Workers rights are at the minimum wage level. The working conditions are also at that low level. We are talking about a union of players whose CBA ran out and have rights to work for anyone.

Employees have no 'rights' to work for any owner. Not in this business nor in any. sport.

What they are suggesting now is that they LOST trying to bargain as a union and now become greedy individuals . They decertify. Why?

Because put to a vote their BS will never pass. Why? 90% of the players contracts have no effect on the salary cap and they are sick and tired of sitting out wasting a valuable year of their short career.

So if the union de certifies, the 90% will immediately form a new union, take the NHL deal and have all their contracts remade down to the penny.

The Ovechkins and Crosbys can go wait 8 years a la Steve Moore in court, meanwhile the NHL plays on as usual.

This does nothing but hasten even a bigger WIN for the owners.

Instead, Fire Fehr, and bring a hockey guy to the table to sign a contract with the owners, play hockey and live to fight the next CBA.

Anything else means more heartache for fans, and more pain for the 90% players who need their paychecks.
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#24 Drybone

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Posted 26 November 2012 - 12:08 PM

Pat Quinn for new NHLPA head! Played the game and has seen the management side as well. He is a lawyer. Maybe he would throw the Canucks a bone in the process!


He would be ruthless but none the less more effective.

The union needs a hockey guy who has also walked a mile in the owners shoes. This way they are uniquely qualified to hammer out a fair deal to both sides.

The union needs to lick its wounds , take the NHL deal , and live to fight for the next CBA . Make sure this time its a hockey guy who wont insult the owners into a fighting corner
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#25 Provost

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Posted 26 November 2012 - 03:55 PM

Then a court has to actually agree to the decertification itself, which is a real crapshoot because they don't like being used as a tool in labour disputes... the players would actually have to show that they really mean to decertify their union and not just having fancy legal trickery to disband one, and then restart it again under a different legal entity. The court can also easily impose a federal mediator to deal with the two parties before agreeing to allow any decertification votes. It would likely not be looked on very positively not to have tried to use a mediator yet in the process.


Well there is one objection to decertification that the courts would have coming off the table. A mediator will come in, likely flame out in a week when they realize that there isn't any common ground.... and then one of the sides will need to come up with another strategy.

The only way this gets done by a 3rd party is if the sides agreed to binding arbitration and I can't see that happening in a million years....

Edited by Provost, 26 November 2012 - 03:58 PM.

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#26 Boudrias

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Posted 27 November 2012 - 07:58 AM

Well there is one objection to decertification that the courts would have coming off the table. A mediator will come in, likely flame out in a week when they realize that there isn't any common ground.... and then one of the sides will need to come up with another strategy.

The only way this gets done by a 3rd party is if the sides agreed to binding arbitration and I can't see that happening in a million years....

As you suggest this could be a PR strategy by either or both parties. I wouldn't take any comfort that both parties had to agree as it will become another venue for their talks. It didn't work in 2004.

I guess a positive might be that a compromise might be easier to swallow coming through a 3rd party. A ray of hope! :)
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#27 Provost

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Posted 27 November 2012 - 10:33 AM

As you suggest this could be a PR strategy by either or both parties. I wouldn't take any comfort that both parties had to agree as it will become another venue for their talks. It didn't work in 2004.

I guess a positive might be that a compromise might be easier to swallow coming through a 3rd party. A ray of hope! :)


I am honestly at a loss to what the owner's plan is to tell you the truth. Normally I can figure stuff out from negotiations by reading between the lines of what folks are saying.

In this case I haven't seen any sign the league wants to actually be playing at all. Everything they have done has been purposefully destructive to the process. In the LR world, doing something like having the owners talk with players without informing the union is considered the height of jerkishness.

Maybe it is true that they don't really want to play before Christmas.
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#28 Boudrias

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Posted 27 November 2012 - 11:50 AM

I am honestly at a loss to what the owner's plan is to tell you the truth. Normally I can figure stuff out from negotiations by reading between the lines of what folks are saying.

In this case I haven't seen any sign the league wants to actually be playing at all. Everything they have done has been purposefully destructive to the process. In the LR world, doing something like having the owners talk with players without informing the union is considered the height of jerkishness.

Maybe it is true that they don't really want to play before Christmas.

No doubt the way things ended up in 2004 might lead to ownership thinking they can cripple the union once again. I am one of those that do not think the relationship is a 50/50 arrangement. Ownership is the senior partner but the players should carry significant influence because of the fan attraction and because of the investment in developing players represented by the contracts they sign with them. It was one of the reasons I supported a make whole clause as IMO a contract is a contract.

I am sure there are concerns by both parties that fans are not aware of all the detail. Suggestions that there was only $180 mil stopping an agreement was bogus all along. Ownership should have been embarassed that the 2004 CBA blew up in their faces and possibly they might hold out for a deal that ensures the same cannot happen. I don't dwell on the ill-feeling aspect because so many of the current players will be gone by then.
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#29 Provost

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Posted 30 November 2012 - 01:12 AM

Well there is one objection to decertification that the courts would have coming off the table. A mediator will come in, likely flame out in a week when they realize that there isn't any common ground.... and then one of the sides will need to come up with another strategy.


Well... I was off by a few days there. Also, I did not see the Bettman strategy coming. I will be very interested to hear the parameters of the meeting offer between players and owners (without Bettman and Fehr).

If it is just to have the same few owners that have been in the room during bargaining... then it is useless. If it is every owner and they each have to explain why they were signing guys to contracts they never intended to honour... well then that is a little difference.

I guess Bettman's game plan is to try to show the players what sort of resolve the owners have, and try to force them into a deal. I don't see it working because it is really just rhetoric andnot really indicative of their true feelings.
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#30 Boudrias

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Posted 30 November 2012 - 11:27 AM

Well... I was off by a few days there. Also, I did not see the Bettman strategy coming. I will be very interested to hear the parameters of the meeting offer between players and owners (without Bettman and Fehr).

If it is just to have the same few owners that have been in the room during bargaining... then it is useless. If it is every owner and they each have to explain why they were signing guys to contracts they never intended to honour... well then that is a little difference.

I guess Bettman's game plan is to try to show the players what sort of resolve the owners have, and try to force them into a deal. I don't see it working because it is really just rhetoric andnot really indicative of their true feelings.

A gutsy move by Bettmen. If the owners are as divided as many on here think then such a player/owner meeting could blow up in Bettman's face. I have suspected all along that the owners are very united.

The make whole controversy should neever have occurred. After the 2004 CBA was signed the NHL should have made it clear that would never happen again. A deal is a deal.
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