The Decertification Threat


After the NHLPA proposal/rejection kerfuffle the other day, I made a glib remark on twitter about the union going the decertification route. I was only half serious when I suggested it, but the option is starting to get more attention. James Mirtle recently wrote about the threat and what it would mean if the players union dissolved.

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If players voted to decertify, the NHLPA would no longer serve as a bargaining unit, and the lockout would either end or have its legality challenged in an antitrust lawsuit…

The value of professional athletes having a union has become a subject of debate in sports law circles the past few years, as owners have used labour stoppages to shrink players’ share of revenues. Without a union to negotiate with, a league couldn’t have a collective agreement, which would mean basic elements of the league, such as the salary cap, could be challenged under antitrust laws.

Decertification is the union’s nuclear option: it essentially resets things to zero, meaning owners would again be bargaining with individual players for their services without the safety net of things like a salary cap. It would also make actions such as the lock-out or other "collusionary" activities by team owners are actionable in court via anti-trust lawsuits. 

The NBA played the decertification card during their lock-out last year and ESPN’s Larry Coon explained:

Decertification owes its power to the uneasy truce between labor laws and antitrust laws. The antitrust laws prevent employers from banding together to restrain competition. For example, if all the banks in a city agreed that they would not pay their tellers more than $30,000 per year, it would almost certainly be an illegal case of "price fixing." Likewise, if the banks laid off all their tellers and refused to rehire them unless they agreed to take a pay cut to $30,000, it would almost certainly be an illegal "group boycott." These types of agreements — which restrain competition — are addressed by the antitrust laws.

However, collective bargaining encourages the very type of behavior that the antitrust laws make illegal. To resolve this inherent conflict, there is something called the "non-statutory labor exemption," which shields collective bargaining agreements from attack under antitrust law. This protection extends even after the agreement expires — so long as a bargaining relationship continues to exist.

Here’s the key to the whole process: This bargaining relationship continues to exist as long as the union is in place. If the players dissolve the union, the bargaining relationship dissolves with it. Without the bargaining relationship, the league is no longer shielded from antitrust laws.

Much of the economic structure of the NBA — such as the salary cap, maximum salaries, rookie-scale salaries and the luxury tax — could be challenged under the antitrust laws as a form of price fixing if there was no union. The lockout itself could be challenged as a group boycott.

Of course, the CBA affords players certain protections as well (rights in contract negotiations, a minimum standard salary, etc.), so why would players as a collective risk decertification and an erasing of the CBA?

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It’s all about Leverage

A couple of reasons: the first was discussed in Mirtle’s piece above – modern players unions and collective bargaining agreements have been used by ownership to extract money and concessions from the players over the last decade or two. As Coon points out in his article, much of what is possible under "non-statutory labor exemption" is considered illegal when it’s not practiced under the blanket of a CBA.

Second of all, and more importantly, it’s become more and more clear over the last two labor disputes that the union doesn’t have much in the way of leverage over the owners in these sorts of negotiations. The NHLPA’s membership is made of some 700+ different individuals, many with rather disparate incentives and priorities. For example, Roman Hamrlik’s very public annoyance regarding the CBA negotiations is an altogether rational reaction from Hamrlik’s point of view. The 38 year old defender is on the last season of a contract that pays him $3.5 million. He risks losing all of that money – as well as final chance to win something meaningful – if 2012/13 is wiped out by CBA negotiations. In addition, most of the contentious issues being fought over right now, including contract length limits, five year "make whole" agreements and limiting front-loaded contracts aren’t really relevant to him.

That’s true for other portions of the union’s constituency as well. Tim Jackman, for example, re-signed in Calgary last year for two seasons at $613k per. Losing one of those years to a lock-out is almost certainly more damaging to his current and future financial position than any of the things his union reps are currently bickering about with the league. Like Jackman, there is a whole underclass of third and fourth line type NHLers who have a very limited career window during which they can establish themselves and make a few dollars before fading into obscurity (and for whom many of the key bargaining rights that are of issue right now don’t really matter). 

In contrast, the cadre of team owners is smaller, more cohesive in their aims, drastically richer than the players, and, to a man, have a more diversified financial portfolio. They’re in it for the long haul. The owners are also obviously aware that a majority of players are much more exposed and therefore face greater pressure from a losing a season.

Which is why modern collective bargaining and CBA’s always seem to result in this sort of brinkmanship, with the threat of a lost year acting as a cudgel the owners wield to extract more concessions and dollars from the union. The NHLPA can delay things and play the PR game, but eventually they must capitulate to one degree or another because, ultimately, the players need the games more than the owners do.

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So the leverage mostly resides with management. Decertification becomes a weapon in the PA’s arsenal, albeit one which would be deployed only with the greatest of reluctance since predicting the "brave new world" after the erasure of a CBA would be, uh, challenging.    

It’s probable a decertification move would be a bluff anyways, but at this point the PA doesn’t have much else up its sleeve. The closer the reality of another lost season becomes, the more pressure the union will feel to get a deal done and therefore the more leverage the league has to extract concessions…

Throughout these negotiations, the players had little real leverage. The window in which professional athletes can earn their millions is short. Bodies are aging during every missed game, every missed paycheck. The players did seem to pick up a bit of leverage, however, after they decertified as a union on Nov. 15, and filed anti-trust lawsuits against the league that could have cost the NBA $6 billion in damages. The NBA would never publicly admit this union tactic scared them. But we know that before the suit, NBA commissioner David Stern was insisting that if the players did not take the 50-50 revenue-split offer on the table, it would never return, and that the owners would not be willing to accept more 47% of basketball-related income going to the players. In the end, the players received more than 47%.

So if you’re an NBA player, you have to be asking yourself: what took us so long to decertify?

That’s from Time’s November 28, 2011 article on the NBA’s agreement that came together less than two weeks after the union opted to decertify. Something similar happened during the NFL’s recent labor strife.

There’s no guarantee the same thing would happen in the NHL’s case, but the union has so few arrows in their quiver it only makes sense for the players to consider it.

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  • jeremywilhelm

    It’s a great threat, and probably the one that tips the scales in the players favour. As much as I don’t like Kypreos, he did have a good point in his recent article. There is no way on the planet the owners of the Flyers, Penguins, Los Angeles et al, are going to go far enough for decertification if it means that they may lose Crosby, Malkin, Quick, Giroux, et al, to the possibility of their biggest rival.

    Fehr has balls, and the players are behind him.

  • jeremywilhelm

    The only question mark regarding decertification is what would happen to existing contracts, and even then I’m not sure that would be a downside for the players.

    Really, what’s the downside? They would lose guaranteed contracts but they would get paid more. And besides, most players don’t have longterm contracts anyway.

    The other downside is that the payrolls of some teams might fall through the floor. That’s a real risk. However, if they don’t decertify there will be a lockout or massive wage reductions every five to seven years until they do. If they decertify now they gain negotiating leverage from a higher starting point. If they decertify when the owners want to reduce their share of HRR to 40% in five years they will have much less to gain.

  • Subversive

    Good stuff Kent. Tom Benjamin has talked about the decertification stuff a fair bit. I would love to see it, personally. Let’s have a free market and may the best team win.

  • A team like Calgary might not have much to loose in decertification. Seems like we could get rid of looser contracts and have the chance to snatch up some decent players. About the only contract that is a real win for us is Glencross.

      • Yeah I suppose that is true, I was just generalizing our state of treading water.
        But if we could be in trouble, imagine what it would be like for teams like the Islanders and Panthers. At least we can afford to go to the current cap. Sure would be the wild wild west out there thought, teams could be bought like the gold old days.

        • It would definitely make things, uh, interesting.

          Frankly I don’t expect it to go all the way even if the NHLPA opts to decertify. At most, it will be an impetus to get the ownership to the table to kickstart real negotiations and get another CBA done.

  • The NHLPA couldn’t decertify without a vote of its members, and decertification would crush the 90% of NHLPA members that aren’t making huge dollars. It would never pass.

    NHL teams would blow all of their available cash on the Crosby-tier players and pay anyone who has an equivalent market replacement at well below what the current “league minimum” is.

    The third and fourth lines (with the exception of specialists) would be almost entirely made up of 20-25 year-old players looking for their “break” while getting paid AHL salaries. As soon as they realize they don’t have what it takes to graduate to the next level, they’ll retire to a real-world job and the next generation of “wanna-bes” would come in and get paid peanuts for their lottery-shot at putting up a crusher season and getting their Pisani contract. Plus you can bet that those contracts are going to be drafted to include “opt-out” clauses for the team unless the player has a proven track record of success (ie. NFL contracts).

    On top of that, teams wouldn’t have to insure players, pay pensions, have medical personnel available to every player, etc.

    Elite stars would do great without a union, because they could command obscene salaries and owners would pay it because that player (a) sells tickets and jerseys for them. The rest of the players would find out how replaceable they actually are to a privately run and financially motivated league.

  • As an entity I could see the players using this as a threat to give the NHL a hard date to get a deal done. However, the conspiracy part of my brain thinks that Fehr has been dragging his feet all along to use this as a tool to abolish the salary cap. Play the players and the owners alike for a final trophy on his wall.

  • jeremywilhelm

    Yes, I am a hockey fan, some say a hockey nut as I like to keep up with the CHL and the Flames assets in the NCAA and across the pond.

    But this stoppage of the NHL is beyond comprehension at this point.

    The players, who have had their heels dug in courtesy of the Brothers Fehr, have lost a bundle. Many of them have chosen to ply their trade in Europe, those who are beyond the entry level deals. But doesn’t that just show that there are alternatives to playing in the NHL if they don’t like the terms on which their employment is based?

    The owners, who have had their heels dug in courtesy of Messrs. Bettman and Daly, have lost a bundle. Most of them made their money in other industries and figured that owning a professional sports franchise was a good way to give back to their community (yah right!) while making a bundle. So they have other sources of income.

    The fans are the ones that lose. But they are also hold the key to whether the NHL can come back and make real all those unrealistic future revenue projections that both the players and the owners see in their rose colored glasses.

    The NHL brand has been severely damaged by the greed demonstrated by both sides, so much so that I doubt that a 30 team circuit can survive losing this season. Phoenix. Columbus. Carolina. Nashville. Florida. New Jersey. Even Anaheim, Brooklyn (aka Islanders) would/could be on the ropes to have a sustainable fan base come back. I am not worried about the 7 Canadian teams, the old U.S. based “original 6” are golden. But what about St. Louis, Dallas, Tampa? Are the roots of NHL hockey deep enough in those markets to survive longer term? I have my doubts.

    And if there is decertification does happen and we return to the lawless ‘wild west’ that we had before 2004 (and as one commenter notes that it “works” for MLB (yeah, tell that to the San Diego Padres and the Miami Marlins!)), I would suggest we might be back to 12 to 15 teams in short order.

    Bluntly, its about time that this spoiled group of millionaires (the players) and their pit bull brothers along with the spoiled group of billionaires (the owners) and their pit bull tandem actually take a reality check and realize that the longer this drags out, the more alienated that Joe Lunchbucket hockey fan in all 30 current NHL markets and across the country and the world will permanently park their loyalties and their chequebooks in other leagues, other sports or other recreational outlets.

    Grow up guys! Its a game. And making a living at it, making a living promoting it should not be a race to see how much they can skim from those who really pay the bills!

    • Yeah it’s a mess.

      I’m not as completely impressed by Fehr as the author of the Washington Post piece JW posted above is, but there is something that came out of the baseball work stoppage in 1993-94 that convinced both parties not to do it again: the fans were PISSED.

      TV ratings plummeted in the immediate aftermath. Attendance dropped something like 20%. The Expos fan base eroded completely and the team eventually had to move. A lot of those who did show up for games booed the players. They also booed Fehr at games, apparently.

      That was the last baseball work stoppage. Obviously the MLB has since recovered, but the damage done by the 94/95 strike was likely seen as something that couldn’t happen again by both parties.

      It may take something like that for this BS to end in the NHL.

      • Greg

        I’ve decided I won’t be buying any tickets this season. I’m not angry or emotional about it, just figure that’s the only way I have to influence the situation. It won’t do anything, but if enough other fans also do it… If attendance actually did drop 20%, we wouldn’t have to worry about another lockout for a very long time.

  • Greg

    The Problem with trying to Decertify is:

    There are Canadian cases where decertification/abandonment has been ruled unlawful when done in order to pressure an employer to do something it is not lawfully required to do.

    The O.L.R.B ruled that a union committed an unfair labour practice by abandoning its bargaining rights in order to coerce the employer to voluntarily recognize the union stance.

    If the union decertified, the employer would have lost some business that was tied to be covered by the collective agreement with the union.

    The O.L.R.B said this:

    … The union was clearly attempting to use the threat of withdrawal of bargaining rights in order to obtain something that it could not otherwise obtain under the Act… On the basis of these findings of fact, we conclude that the union has breached the provisions of section 76 of the Act in that it has attempted to coerce and intimidate the employer – really by the threat of the loss of business, so as to achieve an objective that it is not otherwise entitled to.

    There is something quite inappropriate about the union’s conduct where it has sought a related employer declaration from the Board, the request has been denied, and then the union threatens the employer with loss of business if it does not give in to its demand.

    This will never fly in any province of Canada, that’s why the NHL is not even considering it a threat, as long as the NHL bargins in good faith dercertification would be unlawful in Canada.

    • Hmm…there is rather vague language there so I wouldn’t say it’s airtight that the decert. would be considered illegal in Canada. How does the union threaten the NHL with loss of business during a lock-out, for example?

      Also, could it be proven the union had abandoned it’s rights in order to coerce the NHL in this instance?

      I hadn’t heard of this before and I’m not a lawyer, but from my simple reading here, it doesn’t sound a like fait accompli that the action would be easily dismissed in Canada.

  • BurningSensation

    I’m with the players in this fight. After growing the business to $3.3B the owners decide to force a paycut and to delete any and all leverage the players have in negotiations (Arbitration, contract length, etc., etc)?

    And to start it all off with ‘take it or leave it offers to the union, followed by rejecting three proposals in 10min?

    I think Feher has rope-a-doped the NHL hard. Bettman and the Plutocrats tried to bully their way through like they did with Goodenow, and Fehr has played them.

    When decertification happens (and I think it will), all of Bettman’s hardassery will have painted the league into an anti-trust violation corner.

    Make it happen Mr Fehr!

    • I havent liked how the NHL has tried to bully & force these negotiations. I havent liked how the NHLPA has countered. Couldnt have all these idiots figured this out way before Sept 15th? How long ago was Fehr hired? I remember whe they announced his hiring to represent the players, most everyone muttered oh-oh. This ugly fight was on the card long ago, in fact they probably could have sold out ring side seats. So now what?
      Decertification? Really, thats what you want? You think thats good for the NHL, the players & the fans? Guaranteed teams will fold, player jobs will be lost & fans in those cities will be devastated. I question if Flames, Oilers,Jets & Senators could survive, especially if the dollar drops to 90 cents or lower. This is what you want? This is what players want? Maybe the top 20% elite guys but after that…..

      The players need to pick whats important for them & give up the rest. They need to vote on this so Fehr has direction. Is the 50/50 important or higher split more important? Is the make whole the one win they want to have, so be it, go after it but concede the rest.
      Is the contract issues more important & freedom of there free agency, the give up the HRR battle and agree to what the owners offer on the make whole. Do some friggin thing.

      Lets face it. There is no public sympathy for people earning an average of 2.4 mill/year in any industry. There is no concern about work conditions & treatment in the work place. & least of all, no concern over the quality of life for those that are earnng a living from professional hockey or if they are being exploited. Its time the agents educate their clients about this kind path they are being led upon.

  • McKenzie says decertification is on the table for real for the players now:

    On pretty much every NHLPA conference call with the players in past weeks, there’s been some discussion on the potential of decertification as an NHLPA strategic tool. But on each of those calls, the emphasis always turned towards negotiating a settlement with the NHL and decertification was shelved.

    Until last night’s conference call, that is. For the first time, when decertification was brought up, there was no stated objective to it. A number of NHL players who might have otherwise have raised an objection or concern to it didn’t because they said the climate on the call, after the NHL rejected what the players thought was a significant proposal, was too hot to talk of moderation.

    After last night’s player call, it is fair to say that NHLPA executive director Don Fehr has the mandate or green light to go down the decertification road. That doesn’t necessarily mean decertification is imminent or that the actual process is underway, but multiple sources say it is unquestionably on the next page of the NHLPA playbook and that is a viable option that may soon become reality.

    • Greg

      Hindsight being what it is, we probably could have, and should have, predicted how this would all unfold moths ago. From the first 43% shot over the bow, anyone could have guessed the result would be:

      – 50/50 split
      – some upfront payment from the league to offset the transition down on contracts-in-place
      – increased revenue sharing
      – back-diving contracts blocked
      – little else of any worth
      – lots of pissing matches that would drag this into December and then a relatively rapid wrap up once decertification was pursued, resulting in a season starting around new years

      In fact, except for the timeline details which now seem obvious, I recall several reporters predicting that outcome last summer.

      The intellectual part of me has actually been impressed and a bit amused by the maneuvering on both sides in this. Fehr and Bettman are both very good at what they do and much of what has infuriated us fans has actually been a display of very skilled negotiating tactics. that side of me would actually kinda like to see decertification happen just to continue watching the legal and political intracacies continue to unfold.

      The decent human side of me however is disgusted by all this and thinks Bettman and Fehr should be ashamed of themselves and sent to their own rooms. The same end result could easily be achieved by simple, respectful, quiet give-and-take. That side of me wishes they were just 2 good ol’ farm boys / hockey dads that would have done this over beers and a handshake. That’s the part of me that won’t be buying any tickets this year. My, perhaps futile but only option, way of simply saying “grow the hell up and act like men for &[email protected]! sake”.

      • Im not even necessarily disgusted by the various tactics displayed by the two sides, although some of the PR stuff grows tiresome.

        As a fan and person who garners employment on the league’s periphery, however, I do take issue with the two groups taking my attention and esteem for their product for granted by perpetually using the season as a bargaining chip.

  • jeremywilhelm

    Not sure I like the idea of Decertification. Look at soccer for example. All the teams with money rule the leagues across the pond. Its the same teams that win each year in the Champions Leagues and premiere leagues. Its beyond boring to watch and the players have no respect for themselves, the sport or each other.

    With owners offering up ridiculous amounts of money, players jump ship all the time as soon as an opportunity to do so presents itself. No loyalty. I couldn’t support an NHL or the players in a league like that.

  • @ Kent Wilson

    I apologize Kent for not linking the article as there was much more information it regarding Canadian law, and OLRB

    The article was based on the decertification of a Union and a subsequent ruling from the Ontario Labor Relation Board.

    It still speaks the same language.

    Most notable section 76.

    I apologize once again for not linking my comment as they were paraphrased but this also works the same way for the NHL and capitulation or the use of replacement players as options as well, so it doesn’t do any of them any good to walk this plank.

    • jeremywilhelm

      You gave a link to how the NBA players weren’t going to decertify. What’s interesting is that they had no chance at a deal until they did decertify two months after that link.

      The fact remains that decertification poses very little risks so long as what the owners are offering is so much worse than what they players would get without a union.

      As it stands the players get nothing out of collective bargaining and as such decertification doesn’t have to be a negotiating ploy. They could just dissolve the union for real and wait. Since their talent is basically irreplaceable they would be paid more under free market conditions. They might do worse than under conditions of stability afforded by the current CBA but they would do better than being locked out every five years and forced to take 10-20% paycuts ad infinitum.

      • I really don’t understand how people can think this is the best thing to do for the players. First of all, if it was they would have done it already. Secondly, the players would still have to give up a lot! Yes the top players would do better financially…initially. The rest wouldn’t necessarily. Teams would fold or become totally irrelevant because they wouldn’t spend any money on players (no salary floor). Sure there could be a Billy Beane type GM in hockey for one of the 10 teams close to or actually losing money. I would bet there are not 10.
        Players would lose security and stability in the long run. Decertification is a possibility and one that they can threaten with but give me a break. There is no way that this is the best thing for the players.

        I am shocked to see how many people are totally with the players on this. I think they are both being stubborn and childish. Both should see the system is broken and they BOTH created it! It’s mind boggling to see the players as just victims in this. It’s like they are entitled children. It hasn’t changed at all either as the latest proposal by the NHLPA is that the players will slowly move to 50% (by the 4th year) but if the pie shrinks they will not incur any of the loss. So even if the amount of money coming into the business goes down, they are not willing to take anything less. Are you [email protected]#ing me?

        • It all comes down to the fact, and it is a fact, that there is nothing wrong with the current system. What economic problems the NHL has could be easily solved by an ownership team that was intent on negotiating in good faith with the players. If they had taken that path a win-win solution would have been easily negotiated.

          Instead they have pursued a scorched earth policy and it is this scorched earth policy that is hurting revenues now and will continue to hurt it in the future. So what are the players to do. They are faced with an ownership group that refuses to treat them as partners and refuses to negotiate in good faith. A honestly don’t understand what you think they should have done. If they followed your advice they would h have signed for 45% of revenues in the summer would be staring down the face of a lockout every single time the CBA ended.

          This is an absolute certainty. Faced with this absolute certainty I think they have acted with an enormous amount of restraint. Their only chance is to make this lockout hurt so much the owners never do it again. If that means destroying the NHL as we know it I still think they’ll win in the longrun.

          The best result for the players is a mutual partnership but a mutual partnership requires owners who treat them as partners. Since the owners aren’t intelligent enough to see that this is in their interest as well their only other option is to try and force this view upon the owners.

          The owners are being remarkably naive about this. If I’m a player I would never forget this. Who is going to promote the game when this is over. If I was a player the mystique of the Stanley Cup would be dead to me. The owners would have killed it. If they insist on making it all business, fine. But then you can’t expect a mercenary to sell out for a piece of tin.

          Think about that for a second. The only reason we care about the game is because the players don’t care about the money. Nobody takes a puck to the face for money. We watch because the players care and only because the players care; and they care far beyond what they are paid. Think about that the next time you get angry at them and not the owners for all of this. What the owners contribute to this enterprise is easily replaced, while the players are irreplaceable. If the owners were to die in an inferno nothing about the NHL would change. They are leeches: simple as that.

          • The league cannot continue as is. There has to be cost certainty. Yes the owners helped to (and one would say mostly contributed to) the problem but it doesn’t change the fact, and it is a fact, that there is a problem. No one said that the players need to take the first offer. By all means try your best to get what you can…within reason.

            Please give me a break about loving the game and that is why they play. If money wasn’t an issue for them this would have been over before it started. It should be an issue for them. That’s not the point. Most of the management and a lot of the owners reportedly also love the game with some of them having played in the NHL. It’s not like they are all just trying to hose the players. EVERYONE is this is looking out for their best interests. That’s including all those players that you seem to think have halos around their heads.

            What you are missing the point of (as are many) is that players are employees. They deserve to be treated fairly and should be paid for their professional services but they ultimately work for someone. The owners are replaceable? With who? Other people just like them which you would have the same whining issues you have now or is the solution all the players get together and own it? Fans take up a collection? Tax payers? That would be hilarious. Yes the owners need the players but how in the world you can say that the players don’t need owners is beyond me.

  • jeremywilhelm

    Decertification would destroy the NHL as it currently exists. Whether it would be good for the players is another question but the majority of the owners would absolutely lose their investments.

    As such, I don’t see the downside for the players. They are confronted with ownership that has consistently refused to negotiate in good faith. If they capitulate this time, this scenario will repeat itself in 5-7 years. They have no other options.

    As to the legal opinion expressed above, that is contingent on the notion that the league has negotiated in good faith (highly questionable) and is contrary to the majority of legal opinions I have read.

    Now if you read Dreger it is clear that the NHL doesn’t appear to think this is a serious threat. However, even if true, this should be taken with a serious grain of salt. These people have consistently demonstrated that they know nothing about their own business.

    This is why the owners deserve the blame for this mess. The minute they decided to impose an agreement upon the player’s association this was a foregone conclusion. The player’s have always had only two choices: capitulation or nuclear war.

    The owners, on the other hand, could have seen the big picture and followed the path charted by MLB: peace with players results in prosperity for everyone.

  • BurningSensation

    Kevin R:”So now what? Decertification? Really, thats what you want? You think thats good for the NHL, the players & the fans? Guaranteed teams will fold, player jobs will be lost & fans in those cities will be devastated. I question if Flames, Oilers,Jets & Senators could survive, especially if the dollar drops to 90 cents or lower. This is what you want?”

    Let’s face some realities;

    – The league has become (with a few exceptions – more on them in a bit) wildly profitable.

    – The league did not have to lock out the players – they did so purely as a leverage tactic. This was an entirely avoidable lockout as there was a year left on the current CBA, but the owners chose to do this to maximize their advantage.

    – The league, despite making gobs of money, immediately demanded a massive cut in player pay, favorable adjustments to HRR, AND the removal of all player friendly contracting rights.

    – the NHLPA’s responses were to accept some of the league’s premises on lowering player share (that is, the players opened negotiations by making concessions) and suggested mechanisms to slide the share they get back over time. These were rejected outright.

    – The NHL has a broken economic system. Why? Because they expanded into low revenue markets; Phoenix, Nashville, Florida, etc, and then hamstrung them with a rising cap floor, and tiny revenue sharing. If you moved Phoenix to Quebec and Columbus to S. Ontario you would turn $100m in annual loses into $150M in profits. The Islanders move to Brooklyn will mean the bleeding stops for them, and expanded revenue sharing would fix the rest. So the ‘fix’ for the teams currently the worst off is available without a paycut for the players.

    – We’ve seen the decertification movie before – it works (mostly). Fehr created labour peace in MLB for 17 years by refusing to give in to owner bullying. The NBA got a deal done 12 days after they decertified. It is the one card players have that owners have to fear, and Fehr is the first guy to have used it successfully.

    You suggest that teams might fold if the union decertifies. More likely dead weight franchises will move (Phoenix for certain, but they have been a zombie team for three years now), and they will frankly be better off doing so.

    All in all the most likely scenario is that decertification forces the owners to back off from being giant knobs in their negotiations and the process will move forward.

    It’s an old lesson but the best and most certain way to deal with a bully is to punch himin the mouth. Time for Gary to lose some chiclets.

    • Derzie

      You sound pretty confident most of the teams in the NHL would thrive. One big point you shouldnt ignore is that this incredible growth the NHL has seen was after the Cap was in place & it leveled the playing field & brought more parity to the league than we have ever seen. How many teams do you really think could even come close to offer sheeting Shea Weber the way Philly did? & that was at the risk of losing 3-4 1st round picks. I hate baseball & watching the same teams in the playoffs. If that is what the NHL will be & we are back to watching our star players we groom leave as they hit their prime for big money, you are going to lose more teams than you think. & Im with Derzie & they wont get a red nickel out of me. You think 50% of the NHLPA membership would vote to go down this path? I realize these friggin owners are painting the players into a corner & this is an option when desperate frustrated people just say screw it & nobody wins but the elite & the very very rich franchises. You think Katz is going to spend 120 million on payroll for these young future stars the Oilers have been drafting. Mr Yaks will be shopping for 10 mill in few years & his agent will get it from an Eastern club.

  • Derzie

    Words can make everything seem fresh. Desertification = No Cap = Free Market = Yankees = Lakers = Leafs = NYR = everything old is new again = back to square 1 = No thanks.
    Also, Fehr having balls is as valuable as a cow having them. The owners will give the NHLPA nothing that will make up for what Fehr has lost already and the offer will only go down with time. Either way, none of this band of criminals will get a penny of my money to argue over.

  • Truculence

    Let`s say they do decertify, which is not a legal-given in the first place. That would mean, with no CBA, guaranteed contracts would be out the window. I`m pretty sure Gomez, Lecalvier, and other over-priced players wouldn`t be thrilled by becoming free agents and losing guaranteed money when their teams tell them to hit the road. It would also mean that teams would not have to negotiate guaranteed contracts; outside of the stars, I`d say 60 percent of the membership would be at owner mercy.

    Secondly, kiss any benefits goodbye (pensions, etc.)

    Thirdly, there would be no minimum or maximum, but that would also mean that at least six teams would fold in the next 3-4 years as they would be unable to perenially contend with their more affluent brethren spending as much as their profits allow. Hence jobs would become scarcer, thereby driving market prices of players down (simple supply and demand).

    Finally, anti-trust litigation may not legally preclude the NHL from creating regulations governing the spending of its members. The NHL is not by definition composed of a set of financial entities competing for profits against one another (although it does happen incidentally: more wins, means more fans, means more money). The 30 teams collectively form one organization competing for business against other comepetitive sports organizations and other forms of entertainment. Lawyers for the NHL could cite this fact, buttressed by previous activities like revenue-sharing (which would not occur amongst competitors like Pepsi and Coke, for instance) to state they are well within their rights as a single business entity to impose financial and other constraints on their employees.

    In sum, teams within a league are not competing business entities like Ford and Honda, for example. There is a lot of grey area, and league lawyers could drag this on for years and end up with favorable judgements.

    The NHLPA better be aware that they are heading into uncharted waters and may end up substantially worse than where they find themselves now.

    • I seriously doubt guaranteed contracts would be out the window. The only place you ever hear of that is the NFL – hell the term “guaranteed contract” is almost a contradiction in terms. As Lionel Hutz once said “a contract is an agreement under the law which is unbreakable. WHICH IS UNBREAKABLE.” At best, I can picture idiosyncratic performance expectations built into some contracts as a means of protection for the team.

      I mean, if the prices and competition for players necessarily inflates because of the lack of CBA restrictions, I can’t see clubs also opting to not guarantee dollars. If the Rangers, say, stop paying some of their guys, players will stop signing there.

      Also while player salaries may escalate creating a greater stratification of classes in the league, the elimination of the salary cap floor means lower teams can actually spend within there means, which should substantially curb their losses. Otherwise, the option (like it is in a CBA landscape) is to move failing clubs to better markets rather than fold them outright. That said, it would very likely lead to a league of haves and have-nots.

      I can’t speak to the legal aspects, so I won’t.

      It’s certainly uncharted waters. In sum, though, I would expect the players to do much better (at least financially) in a free market system. Before the imposition of the cap, the owners were paying them close to 75% of the HRR for instance.

      Would that be good for many of the owners and the business of the league? Probably less so. Which is why an amicable partnership between the two entities so the game can prosper should have been the goal this time around. Instead we still have to talk about losing a season, leverage and nuclear options.

  • BurningSensation

    The first thing the players have to do is break there contract to decertify!

    This permits the player to negotiate as individuals

    So yes, guaranteed contracts will be long gone!! Teams will give signing bonuses to players for 20 million at 5 million a year, you will see guaranteed contracts with players like Crosby and Malkin but do you honestly think OV8 is worth 9 million a year!!!!!! Guaranteed!!! You think he wants to risk that!
    Or Horcoff at what 6 a year! You will NEVER get the Players to vote 50 % or higher for this! (Decertification) Not in the NHL and not if they are smart.

    Players like Stajan and Campoli are literally done! Never again will they play NHL caliber hockey as well as about 170 others who may never play again regardless of the outcome of this lockout, you’re looking at approximately 40% of the players not playing in any league right now getting a right to vote..

    Also players under decertification are responsible for their own gear, sticks, tape, meals, No union to represent them in a grieving process, or a union to support a player’s best interest.

    Teams that revenue shared would be all but gone!
    Leaving the have-not’s to flounder and seeing how the NHLPA used decertification and then anti-trust laws the league would bury teams rather then move them because it makes financially more sense to re-introduce them as an expansion teams elsewhere, more money for the owners you see and since they decertified the players are all UFA’s anyways and would cost more to re-new them.

    The league would most likely end up as a 22 team league again shared between the wealthiest of owners before the re-expand to maybe two places that could handle the salary’s and be competitive.

    Gone-Ducks-Predators-Panthers-Stars-Lightning-Blue Jackets- Coyotes-Hurricanes

    Teams in the south would be gone-Fact this isn’t the MLB and this definitely isn’t the NFL, this is the 4th sport in the USA and in some place’s even the 5th or 8th after college sports.

    With the United States losing the guaranteed tax reduction for the corporate community and the rich the USA is going to take a dive again soon, where do you think dollars will be spent there? Not on the NHL.

    This is what you will be left cheering for at the end of the day- Maple Leafs-Rangers-Blackhawks-Red Wings-Bruins-Canadiens

    This is a ridicules/desperate attempt by the players and ranks right up there with the NHL’s offer of 43% HRR

    • BurningSensation

      I can only say that your predictions are way off base. You seem to be proceeding on the delusion that NHL players are currently overpaid. That’s empirically false. While decertification would certainly redistribute salaries I would be quite surprised if it would result in a net drop in salaries, especially when compared to the prospect of the players facing a lockout every five years.

      As to the notion that baseball doesn’t have competitive balance suggested above. This is also a demonstrably false statement. I did a quick check of the NL since 2005 and if baseball admitted eight teams to the playoffs as the NHL does, every single team would have made the playoffs numerous times except for the Pittsburg Pirates which is famously the worst run team in baseball (well them or the Royals). In the AL every team makes the playoffs except for those Royals. The Blue Jays would have made it almost every single year.

      By any reasonable measure baseball has the best system. It has labour peace and not coincidentally it is wildly profitable. It also, as an empirical fact, has excellent competitive balance.

    • BurningSensation

      With respect… I think you’re mistaken.

      For starters I don’t believe that you’d see any teams folding. Those teams are worth many millions of dollars and the current owners aren’t going to just go “aw shucks” and walk away from that… they may end up selling them at a greatly reduced rate but they would not fold so long as someone was willing to pay anything for them.

      Secondly, you state players under decertification are responsible for their own gear, sticks, tape, meals etc. That would be true for all current contracts (more on that later) but I am relatively confident that provision for such would be written into most future contracts and that in other cases could likely be reclaimed as some manner of tax break.

      Thirdly, your assertation about guaranteed contracts being gone… I would presume that many guarenteed contracts would remain. I believe all contracts (in general not specifically to sports performance services) unless otherwise provisioned are guarenteed. While it’s true that future contracts would see owners atttempting to make them provisional I imagine that the guarantee would become the new NTC/NMC a negotiated point between contractor and contractee.

      Fourthly, you state… “but do you honestly think OV8 is worth 9 million a year!!!!!! Guaranteed!!! You think he wants to risk that!” I’m going to presume that OV8 is Ovechkin… to which I would point out that players far inferior to him made that much or more prior to the last lockout.

      Finally you state that “The first thing the players have to do is break there contract to decertify!” that is simply not true. The first thing that they would have to do is have 1/3 of the membership petition the NLRB, then schedule a vote, then acheive 50% +1 threshold on that vote. That is all that’s required. I imagine you are under the impression that the NHL team’s contracts are null and void if the union were to desertify I do not believe that to be the case (although I imagine the owners may try to argue that in court should it come to it) the standard player contract states that “The Club and the Player mutually promise and agree to be legally bound by the League Rules and by any Collective Bargaining Agreement that has been or may be entered into between the member clubs of the League and the NHLPA, and by all of the terms and provisions thereof, copies of which shall be open and available for inspection by the Club, its
      directors and officers, and the Player, at the main office of the League, the main office of the Club and the main office of the NHLPA. This SPC is entered into subject to the CBA between the NHL and the NHLPA and any provisions of this SPC inconsistent with such CBA are superseded by the provisions of the CBA.” The contract is subject to the CBA not wholly a part of it the mere fact that the language places the contract subserviant to the CBA indicates that their (the contract)
      existence is not dependent upon the existence of a collective bargaining agreement.