Ask a Lawyer: Would the NHLPA ever try to decertify to end the lockout?

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With all the rhetoric emanating from each side of the NHL’s labor dispute, we’ve decided to bring in an actual lawyer to answer a series of questions. Hopefully it will prove useful to you, the reader, because it’s costing us $500 an hour. Please welcome to ProHockeyTalk, sports legal analyst Eric Macramalla.

PHT: Hello again, Eric. We’ve heard about unions voting to decertify in past pro sports labor stoppages. First off, what is that? Why do unions do it? And would the NHLPA every try it to end the lockout?

EM: Facing a lockout in 2011, the NFL Union disclaimed interest. After being locked out, NBA players voted to decertify the Union.

While the terms are different, decertification and disclaiming interest look the same at the end of the day: the Union has been dissolved or blown up. (Decertification refers to employees revoking the authority of their Union to bargain on their behalf, while disclaiming interest refers to the Union terminating its right to represent the players.)

Why are Unions dissolved this way? It’s done so players can file antitrust lawsuits against a league with a view to blocking a lockout, while ultimately looking to gain leverage in labor negotiations.

That begs the question: will the NHLPA and Donald Fehr ever dissolve or blow up the Union?

First things first though – let’s address this antitrust nonsense.

Here are the basics. It is unlawful for competitors to get together and fix the marketplace. When they do so, they open themselves up to antitrust claims. So fast food joints can’t all agree that they will start charging $50 for a hamburger. Back in the 1880s, the U.S. Federal Government wanted to ensure healthy competition and didn’t want to see competitors fixing the marketplace. That was the beginning of antitrust laws in the U.S.

This also applies to sports leagues. By way of example, the NHL has 30 teams that are competitors. However, while they are competitors, they still get together and impose restrictions on the marketplace by way of the terms in the collective bargaining agreement (CBA). The CBA provides for a salary cap, places limits on free agency and restricts the number of players a team can employ. Teams even share revenues.

Setting up these rules makes sense. A sports league is unique in that it requires a great deal of cooperation among teams to be successful.

So why are leagues generally able to avoid antitrust lawsuits? It’s because these unlawful restrictions are found inside the CBA. Think of the CBA as a protective bubble. While certain terms may be unlawful, by putting them inside the four corners of the CBA, leagues are insulated from these types of antitrust claims. It makes some sense, since a CBA represents an agreement between the employer and its employees. So the CBA rules the day.

That’s where decertification (or disclaiming interest) comes in. Decertification is the pin that bursts the CBA protective bubble. By dissolving a Union, the CBA is no longer able to protect a league against antitrust lawsuits.

Things, though, changed in 2011 when the NFL Union was dissolved and the players filed an antitrust lawsuit against the league to block the lockout. The Court of Appeal ruled that despite the Union dissolving itself, the CBA still protected the NFL from the antitrust lawsuit. That was a game changer for leagues.

As a result, antitrust litigation and decertification has become a far less effective tool for players in CBA negotiations. That means it’s highly unlikely that NHL players will decertify the Union. So don’t expect to see it.

Indeed, the message that has been sent by the Court of Appeal is that deals are hammered out at the bargaining table and not in the courtroom.

Eric Macramalla is a partner at a national law firm and TSN’s sports legal analyst. He has covered the legal side of all major sports stories, including the NFL and NBA lockouts, the Saints Bountygate, Barry Bonds and Roger Clemens perjury trials, the Ilya Kovalchuk dispute and the Jerry Sandusky case. You can follow him on Twitter at@EricOnSportsLaw and his sports law blog is located at www.OffsideSportsLaw.com.

Ask a Lawyer: If a player has a contract, how can the owners cut his salary?

Report: Red Wings RFA Athanasiou could sign in Russia

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With training camp approaching, Andreas Athanasiou is still without a contract for the upcoming season.

The 23-year-old forward and restricted free agent posted 18 goals and 29 points in 64 games for the Detroit Red Wings last season in the final year of his entry-level contract with an annual average value of $902,500.

Based on a report Tuesday afternoon, traveling overseas to play next season could be an option for Athanasiou, one of the bright young forwards in the Red Wings organization.

Earlier this month, Red Wings general manager Ken Holland said the organization has made a “number of offers” to Athanasiou.

One of the issues facing Detroit right now is the salary cap, which the Red Wings are currently over by almost $4 million, according to CapFriendly.

Report: ‘We … are not dealing with this issue as of now,’ says Iginla’s agent of Olympics

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National Hockey League players will not be going to the 2018 Olympics. However, it appears Team Canada has taken another step in expressing interest in a pair of unrestricted free agents — Shane Doan and Jarome Iginla.

That’s according to the Canadian Press on Tuesday, as it reported Team Canada general manager Sean Burke contacted representatives for both Doan and Iginla, inquiring about possible availability.

Both players are 40 years old and have represented Canada at previous Olympics when NHL players participated. Iginla set up Sidney Crosby‘s famous overtime winning goal during the 2010 Games in Vancouver.

From the Canadian Press:

Burke, who’s building the first Canadian Olympic roster without NHL players since 1994, suggested that both former Olympians would have to be playing somewhere if they were to be considered. He reached out to their representatives on Tuesday morning.

“We want to look at all possibilities, but there has to be a long-term plan because it’s going to very intense (at the Olympics) and it’s going to be great hockey and guys are going to have to have a plan for the year,” Burke said on a conference call, which also included the team’s head coach Willie Desjardins.

Whether or not the two veterans would be interested is another question.

“We really are not dealing with this issue as of now,” Don Meehan, Iginla’s agent, said in an email to The Canadian Press.

The report also indicated that Team Canada’s roster should become more clear by November.

Doan played his entire career with one franchise until this June, when Coyotes management informed the veteran forward that they would not be bringing him back for another season. He’s appeared in 1,540 NHL games throughout his career, but scored only six goals and 27 points in 74 games this past season.

Iginla, a two-time Olympic champion for Canada, split this season between Colorado and L.A. He had only eight goals and 18 points in 61 games with the Avalanche before getting dealt to the Kings. He then posted six goals and nine points in 19 games with L.A., although that club missed the playoffs.

Blue Jackets need Bobrovsky at his best to take the next step

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This post is part of Blue Jackets Day on PHT…

When it came time for the annual NHL Awards, Sergei Bobrovsky‘s rebound season was, deservedly so, recognized with a Vezina Trophy.

(He was also a finalist for the Hart Trophy but that went to phenom forward Connor McDavid.)

At the heart of the Columbus Blue Jackets’ franchise record-setting season, which saw them win 50 games and post 108 points while competing for the Metropolitan Division, was the performance of Bobrovsky. He was brilliant, particularly after his previous season didn’t go according to plan, in large part because of injuries.

He posted 41 wins over 63 starts, the most in a single season for him, and a .931 save percentage. That last stat technically isn’t an individual career best for Bobrovsky, although the one time he achieved a better save percentage was over 38 games during the lockout-shortened season.

Critical to his play was the fact he was able to remain healthy — a priority for Columbus heading into last season, and something that will need to continue once again in 2017-18. He was able to gain confidence in his own game and help propel his teammates to a different level, as the Blue Jackets competed with Pittsburgh and Washington through a good portion of the season for the division lead.

“When Bob’s at his game and feeling good, it brings a whole different kind of confidence into that room,” team captain Nick Foligno told the Associated Press last season.

Where Bobrovsky has struggled is in the playoffs. That continued again this past spring. In five games against a talented Penguins roster in the opening round, he allowed 20 goals against with an .882 save percentage, and is reportedly open to the idea of seeing a sports psychologist to help get over that hurdle.

With a good young roster, the Blue Jackets took quite a step forward last season. There was another productive year from Cam Atkinson. Zach Werenski impressed as a rookie defenseman. The biggest difference, however, was the goaltending Bobrovsky provided.

It’s difficult to believe April’s playoff struggles will have much, if any, impact on Bobrovsky heading into the new season. After all, he was able to prove in the weeks before that he can bounce back from disappointing times.

And he was able to prove that, when at his best, the Blue Jackets could be a dangerous team.

After another productive season, Cam Atkinson enters contract year with Blue Jackets

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This post is part of Blue Jackets Day on PHT…

Cam Atkinson had already proven himself to be a 20-goal scorer in the NHL. It was a mark he hit three consecutive times prior to last season.

And that’s when the former sixth-round pick from 2008 really broke out.

Atkinson, now 28 years old, led the Blue Jackets in scoring with 62 points. What highlighted his point totals was the fact he scored 35 goals — leading the team in that category, as well — in a year when only seven other players in the entire league were able to best his total, Sidney Crosby leading the way with 44.

Despite his output at the time, Atkinson was originally a snub from the 2017 All-Star Game before getting added to the event when Evgeni Malkin couldn’t participate because of injury.

Another area where Atkinson has been so valuable for the Blue Jackets has been on the power play. Of the 62 points he recorded last season, 21 of those were with the man advantage. He finished in a three-way tie for second on the team in that category.

It is worth pointing out that with the addition of Artemi Panarin, the Columbus coaching staff may have an adjustment in mind for Atkinson, according to assistant coach Brad Larsen.

From The Columbus Dispatch:

Larsen said plans can change – prospects are still a month away from leaving for Traverse City – but his first thought is to play Panarin at his familiar spot and slide Atkinson to the middle slot, one open with the free-agent defection of Sam Gagner.

“Panarin has had a ton of success on that off side with his one-timer,” Larsen said. “If I was going to say right now, I would say he’s going to start there. Cam has done an outstanding job there and we might shift him into the middle. Again, there are going to be discussions and we haven’t really gotten into it.”

While the Blue Jackets enter the season looking to build on a franchise record-setting 2016-17 campaign, Atkinson enters the final year of his current contract, which has a cap hit of $3.5 million and a total salary of $4.5 million, according to CapFriendly.

Aaron Portzline of The Athletic recently suggested market value on a long-term contract for Atkinson — who turns 29 years old next June, only a few weeks before free agency opens — may be between $5 million to “maybe” $6 million annually.

That’s a nice raise. Not bad for a player taken 157th overall in 2008. He now sits fourth among players from that draft class in career goals, behind only Steven Stamkos, Jordan Eberle and Derek Stepan.

Atkinson is now eligible to sign an extension, but for right now, the Blue Jackets still need to get restricted free agents Josh Anderson and Alexander Wennberg under contract for the upcoming season.