With NHL labor talks still going nowhere, the league and its players’ association began a race to the courthouse Friday. The NHL got there first.
The league filed two lawsuits in New York.
One was a class action lawsuit to confirm the legality of the lockout. The other was an unfair labor practice charge with the National Labor Relations Board against the NHL Players’ Association.
The legal moves came because players are expected to vote in the coming days whether to dissolve the players’ association via a disclaimer of interest. The union’s executive board unanimously authorized the vote, TSN reported Friday.
If the players vote “yes,” the NHLPA would walk away from its role as the representative of the players. The players could then sue the league for antitrust violations.
“By threatening to ‘disclaim interest,’ the NHLPA has engaged in an unlawful subversion of the collective bargaining process and conduct that constitutes bad faith bargaining under the National Labor Relations Act,” the NHL said in a statement.
The union has been discussing a disclaimer of interest and decertification for some time.
The NBA players’ association filed a disclaimer of interest during the basketball work stoppage last year. A collective bargaining agreement came together 12 days later before anything got to court.
NFL players were not successful in their attempt to dissolve the union and end a lockout last year.
“There’s antitrust exemptions within the context of collective bargaining,” Richard D. Furlong, a labor lawyer for the Buffalo firm of Lipsitz, Green, Scime and Cambria, said by phone. “If you don’t have collective bargaining, those exemptions go out the window and the antitrust laws apply.”
By engaging in collective bargaining with the players’ association, the league is allowed to do things such as set a salary cap and impose restrictions on free agents. If there is no party with which to bargain, the owners “could not collude and basically join together to set the price of labor,” Furlong said.
“If you’re not engaged in collective bargaining, it would put the owners in a precarious situation with respect to antitrust laws,” said Furlong, who is a certified agent for Professional Lacrosse Players Association and a former agent for the National Football League Players Association.
Commissioner Gary Bettman scoffed at the threat of union dissolution last week.
“The board [of governors] was completely and thoroughly briefed by counsel on the subject,” Bettman said. “We don’t view it in the same way, in terms of its impact, as apparently the union may. ... It’s not something that we focus on.”
Because a disclaimer of interest is less formal than decertification, which can take up to a year, courts have disallowed it as a “sham” negotiating tactic.
Still, with the sides no closer after meeting with mediators again this week, the players have the option to at least explore the subject.
Buffalo defenseman Jordan Leopold, who has been serving as a union representative for the Sabres, declined comment.
“The bottom line is that this has been done before by unions within the context of collective bargaining in sports, and it has put the employers back on their heels with respect to the antitrust statutes,” Furlong said. “Bettman probably is and should be worried about this.”
Rather than wait and worry, Bettman and the league beat the players to the courts.
“The NHL appears to be arguing that players should be stopped from even considering their right to decide whether or not to be represented by a union,” the NHLPA said in a statement.
“We believe that their position is completely without merit.”