By stuhackel
November 27, 2012

ice skating clowns Send in the clowns: Federal mediators are joining the NHL lockout circus, but neither side has to listen to them. (Photo by Todd A. Swift/Getty Images)

By Stu Hackel

After getting drunk on the spirits of Operation Hat Trick in Atlantic City, we awaken to the long hangover that is the NHL lockout. That'll sober you up real quick.

By now it should be clear to whoever is still paying attention to this ongoing farce that no one really knows what's ahead and anyone who is offering a prediction is just guessing. All we can say with relative certainty is that the next time the players and owners get together -- which looks like it will be Wednesday -- they'll be joined by members of the Federal Mediation and Conciliation Service. Will that matter? At this point, any suggestions to help break the stalemate would be useful, but most observers are doubtful they will matter. The mediators have not been asked to settle the dispute, only make recommendations -- and neither side is obligated to follow them. If you subscribe to the belief that one side isn't interested in agreeing to anything unless it gets its way (and you are free to choose your side here), mediators likely won't change that.

How the FMCS, an agency of U.S. federal government that handles arbitration and mediation of labor disputes and contract negotiations, got involved is somewhat unusual. Generally, they contact parties who are in negotiations and remain in touch with them during the process but have to be invited in to help the process. Sometimes they succeed; the FMCS last week helped end a brief lockout of Steelworkers Local 13-07 in Kansas City, MO, by Milbank Manufacturing Co.

About a month ago, according to Larry Brooks of The New York Post, the NHLPA had suggested to the NHL owners that mediators come in to assist, but the owners declined (and Don Fehr pretty much confirmed that in this interview over Toronto's TSN Radio 1050). Now, the FMCS has said it invited itself in and both sides agreed. Why did ownership change its position?

It's quite possible that the talk of the NHLPA decertifying put the owners in a position where they had to agree. We'll go into decertification a bit below -- it's complicated stuff -- but if the players were to proceed with that tactic, it could potentially expose the owners to anti-trust litigation and any indication that they had not negotiated in good faith or made every reasonable effort to reach an agreement would cause a judge to frown -- and you don't want to make a judge frown in court. Losing an anti-trust lawsuit is sort of like picking up a "Chance" card in Monopoly and learning you have to pay all the other players three times the amount of the worth of your hotel on Boardwalk. So the owners now have a different perspective on bringing in mediators.

Before we touch on decertification, which was all the rage on hockey blogs and among hockey Tweeps until Monday, let's look at what will surely be a footnote in the mediation saga (which may itself end up as a footnote to this whole lockout): the sad tale of Guy Serota.

An anonymous bureaucrat -- whose 15 minutes of infamy will always be linked to a parody of the Knack's "My Sharona" -- "G-G-G-Guy Ser-ota" -- this FMCS commissioner was named as one of the three mediators in the NHL CBA matter along with Deputy Director Scot L. Beckenbaugh and  Director of Mediation Services John Sweeney. When their names became known, some enterprising fans and journalists began searching for whatever they could find on the web about them and Serota's Twitter feed turned up containing some pretty vulgar stuff that some characterized as "inappropriate" and "clunky and uncomfortable." But hostile remarks toward comedian Sarah Silverman smacked of anti-Semitism, among other things. Reached by phone, Serota told a reporter that his Twitter account had been hacked, and then it was deleted. Then Serota reappeared under another account and hockey's Twitterverse, which had shifted from obsessing over decertification to obsessing over mediation, jumped all over Serota and began altering the words of Knack lead singer Doug Fieger. The whole thing reflected so badly on the FMCS that they pulled him off the case!

Well, that was fun.

OK, back to the lockout. Here's the deal: Decertification seems to me like pulling the goalie: You have a chance to tie the game and win it, or you might give up an empty net goal and lose. It's a tactic the players may use to get the owners to seriously bargain instead of rejecting whatever the NHLPA puts on the table, but it is fraught with peril. Essentially, it is a process that would dissolve the union, and that would make the lockout null and void. It also removes a lot of protections that the players and former players now have and, as noted above, opens up the possibility of anti-trust litigation. On "The Morning Show" over Montreal's TSN 690 Radio on Monday, Bob McKenzie mentioned that the mere threat of decertification helped bring the sides to an agreement in the NBA and NFL lockouts (and Bob had more thoughts on the subject in this TSN article). But it has great danger attached to it for the players if they lose in court should things get that far. Still, there is a growing sentiment among them that it is the way to go, or is at least worth further exploration. Whether they will decertify remains a wide open question and maybe the biggest unknown of all.

Ownership certainly wouldn't like that and they say that the process to decertify itself is so time-consuming that it would mean the season would have to be cancelled. That would, of course, give the owners another reason to say it is the players who are responsible for this mess. If lawsuits do result, they could drag out so long that it would impact the start of next season.

A number of experts in the field have written about it, one of whom, Eric Macramalla, posted this on TSN's website and it's well worth reading if you want to know more about decertification. If you want a quick explanation of the decertification process, you can read Jeff Klein's blog post for The New York Times.

It's all very dizzying. The Red Wings' Todd Bertuzzi tells The Detroit News that he believes the season will be lost. The Jets' Ron Hainsey, who is on the NHLPA negotiating committee, told The Winnipeg Sun, “Well, I’m not sure if going into mediation will solve this or not. But it will be a new perspective injected into this, with the intent of seeing if they can bring us closer together. I think it is an avenue worth a shot.”

The Canucks' Corey Schneider tells The Vancouver Sun, “The appetite for decertification is much stronger than it was before. Through this whole process, we've viewed that as a last means. We didn't want it to come to that so we've always pushed to negotiate, negotiate."

Pittsburgh's Sidney Crosby is so doubtful that the season will happen he's more seriously considering playing in Europe. "I probably hadn't thought about it quite as much as I have the past few days," he said (quoted by Dave Molinari of The Pittsburgh Post-Gazette. "It's definitely been something ... with the way things are looking now, it's not looking too good."

Nope, it doesn't. But no one knows what's next. Like the song says, "Que sera, sera."

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