The NHL Players’ Association elected to avoid lawsuits during its first opportunity to file them. Now that talks with the NHL have slowed again, the union is asking for a second chance.
The NHLPA’s ability to file a disclaimer of interest, which would essentially dissolve the union and open the league to antitrust lawsuits, expired at 11:59 p.m. Wednesday without Executive Director Donald Fehr using the option. But negotiations soon took a turn for the worse, so union executives began conducting another player vote Thursday night to re-establish rights to the bargaining tactic.
If the talks with the NHL are not progressing by the close of the 48-hour voting period (6 p.m. Saturday), it’s assumed union leaders will disclaim interest, walk away from the talks and allow players to sue the league.
The union filed one legal document Thursday, submitting a memorandum of law in U.S. District Court in New York. It asked the court to dismiss a complaint made by the NHL last month that would have the lockout declared legal and prevent the players’ association from filing a disclaimer of interest.
“The NHL is using this suit in an attempt to force the players to remain in a union,” the NHLPA wrote in its memorandum, which was obtained by several news outlets. “Not only is it virtually unheard of for an employer to insist on the unionization of its employees, it is also directly contradicted by the rights guaranteed to employees under Section 7 of the National Labor Relations Act.”
The NHL filed its lawsuit Dec. 14, the day the union’s first disclaimer vote ended, and it was viewed as a pre-emptive strike. Commissioner Gary Bettman said early Thursday morning that “the word disclaimer has never been, has yet to be uttered to us by the players’ association. … When you disclaim interest as a union, you notify the other side. ”
“The NHL’s gun-jumping suit is simply an attempt to have these issues decided in the forum of its choosing, which is an improper use of the declaratory judgment mechanism,” the NHLPA wrote in its response.
The sides are scheduled to appear in New York Southern District Court at 9:30 a.m. Monday for a status hearing, according to ESPN.com.
In the meantime, the parties face a struggle to get talks back on track.
They were scheduled to resume negotiations with a mediator Thursday morning, but the union declined, saying it needed to update membership after Wednesday night’s talks continued until nearly 1 a.m. They held a pair of small, information-gathering sessions Thursday as speculation swirled about the breakdown of talks.
The NHL reportedly attempted to change language in the CBA, increasing ire and distrust on the players’ side. The change reportedly was regarding penalties for violations of hockey-related revenue reporting. The league restored the original language.
The sides are expected to resume formal negotiations this morning, with federal mediator Scot Beckenbaugh expected to participate. The clock is rapidly winding toward the point of no return.
Bettman said a 48-game season needs to start by Jan. 19, which he said leaves the sides until next Friday to conclude a deal. They are still believed to be apart on contract term limits, yearly salary variance and the salary cap limit for 2013-14.
It’s been reported the sides have agreed to two player buyouts prior to next season, up from one.
“There’s been some progress, but we’re still apart on a number of issues,” Bettman said. “As long as the process continues, I am hopeful.”