NHL's CBA dispute enters legal swamp

With a players' vote likely to dissolve their union, the NHL is changing some of its tune about NHLPA boss Don Fehr. (Mary Altaffer/AP)

By Stu Hackel

And now things have changed. The fate of the season and perhaps the entire NHL could be decided by lawyers filing into courtrooms, not by negotiators in conference rooms,. And, because the existing case law on what will be argued is so uncertain, the outcome is anyone's guess.

Somewhere in the past few months, I wrote something like, "This is no way to run a league unless you want to run it into the ground." That has never been more true.

But let's not allow this dire view to stop us. Instead, let's wade into the legal swamp a bit and hope we don't get too bogged down while trying to comprehend it.

As we noted on that ugly Friday of last week (that had already turned truly horrible with the shootings at the Sandy Hook Elementary School in Newtown CT), the NHLPA executive board decided unanimously on Thursday to have its members vote on whether to give the union's executives the right to disclaim interest, the technical term for dissolving their union. They believe the owners' unwillingness to compromise leaves no alternative but to take this path which, theoretically, can provide some leverage in this impasse. That vote is now underway and will conclude on Thursday. Should the players go in that direction, it will set in motion all sorts of possibilities and anyone who tells you they can predict the outcome is fooling themselves and trying to fool you.

If the players vote to give the execs the right to dissolve (Detroit's Dan Cleary told Ansar Khan of the Michigan Booth Newspapers the motion should pass overwhelmingly) and if that's the action the executive board takes, they could ask a court to declare the lockout illegal. Should the court do that, it exposes the NHL to anti-trust lawsuits -- and the if the league is found guilty, it could mean serious financial problems for the owners because such a verdict carries a tripling of monetary damages. The owner of your favorite team would not be happy.

The threat of this outcome could force the owners back to the bargaining table well before any lawsuit gets that far. Or it could make them dig their heels in more, and if you listened to Deputy Commissioner Bill Daly on "Hockey This Morning" over Sirius XM NHL Network Radio (audio), you heard him say the league was very confident in its position. If that's true, there may not be any negotiations for a while.

One outcome, at least according to the league, is that a decision to dissolve will guarantee the loss of the season. That's not entirely certain, although negotiations would have to resume fairly soon and move pretty quickly to get an agreement in time to play even a shortened schedule of 48 games.

Just after the PA's intentions became known on Friday, the NHL took preemptive action to defend its position in the event the union executive board does decide to dissolve -- filing a class action suit and a complaint with the National Labor Relations Board. You can actually read the lawsuit here and it says that the court should not recognize any move by the PA to dissolve itself.

A good, easy-to-follow explanation of all these latest developments in question-and-answer form by Eric Macramalla on TSN.ca can be read here. If you want to skip some of his details (you shouldn't, but in case you do), he asks, "Which Side Would Win In Court?" and answers, "There is a lot of uncertainty in this area. The law is sorted and complex and it's too tough to say which side is favoured in court. The only certainty here is uncertainty."

He also points out that, "The NBA did precisely the same thing (as the NHL is doing) in August 2011. The NBA filed its lawsuit in New York, asked the Court to declare the lockout legal, and requested that the Court declare all NBA player contracts void if the NBPA was dissolved by way of a disclaimer or decertification."

If you've gotten this far and are pulling your hair out, here's some comic relief from Larry Brooks of The New York Post, who has been saying for a while that he thought this would end up in court.

"Reading the NHL’s complaint is a hoot. Honestly, it is," he wrote Sunday. "Here is the league that just over a week ago was doing everything in its power to keep Don Fehr out of the bargaining process, and is now going to court to ensure he continues to represent the players in the bargaining process. For weeks now, the NHL has sent its messengers to deliver the message the NHLPA is not truly united behind Fehr and union leadership; that the players, left to their own decision-making process, would rush to accept whatever the league at the time had on the table. Or, in another word, 'Vote!' Yet there in Paragraph 54 of the complaint is the NHL citing numerous examples of players articulating support for Fehr and the PA leadership which the league posits, '... do not suggest that the NHL players are unhappy with their Union representation [or] wish to oust current NHLPA leadership...' Don Fehr. League can’t live with him, now the league can’t live without him.

"Paragraph 102 is a good one. For months the NHL has been telling anyone who would listen that up to 18 of its franchises lose money, with many of those franchises in need of life support. For months the league has been instructing us not to confuse revenue with profits. Fair enough. But then these are the league’s own words right there in Paragraph 102: 'The system of common employment rules [the CBA] instituted in 2005 improved the financial stability of the entire NHL, including most of its clubs...'

"Most of its clubs? Really? Hmm.

"What to make of the thought process behind Paragraph 62? The combination of restrictions proposed by the NHL leading into and throughout the lockout is designed to limit the impact of free agency and funnel players toward teams they might not consider given a full plate of options. Yet there is the NHL in Paragraph 62 suggesting every player in the league become a free agent if the NHLPA were permitted to disclaim or decertify. '[Existing] contracts ...[would be] void and unenforcable by law,' in the league’s own words. Goodbye Columbus!"

It remains to be seen if a judge will find the NHL's petition as humorous. Still, you can't overlook the irony inherent in the latest maneuvers.

And you can't overlook the fact that with every passing day this drags on, more people care less and less about it all.

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