Fehr and players

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


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?

Lucic: If I wanted to hurt Couture, ‘I would have hurt him’


Last night in Los Angeles, Kings forward Milan Lucic received a match penalty after skating the entire width of the ice to give San Jose’s Logan Couture a two-hand shove to the face.

Lucic didn’t hurt Couture, who had caught Lucic with an open-ice hit that Lucic didn’t like. Couture’s smiling, mocking face was good evidence that the Sharks’ forward was going to be OK.

This morning, Lucic was still in disbelief that he was penalized so harshly.

“I didn’t cross any line,” Lucic said, per Rich Hammond of the O.C. Register. “Believe me, if my intentions were to hurt him, I would have hurt him.”

While Lucic knew he deserved a penalty, he said after the game that he didn’t “know why it was called a match penalty.” His coach, Darryl Sutter, agreed, calling it “a borderline even roughing penalty.”

And though former NHL referee Kerry Fraser believes a match penalty was indeed warranted, Lucic said this morning that he hasn’t heard from the NHL about any possible supplemental discipline.

Nor for that matter has Dustin Brown, after his high hit on Couture in the first period.

In conclusion, it’s good to have hockey back.

Related: Sutter says Kings weren’t ‘interested’ in checking the Sharks

Torres apologizes to Silfverberg and Sharks


A statement from Raffi Torres:

“I accept the 41-game suspension handed down to me by the NHL’s Department of Player Safety. I worked extremely hard over the last two years following reconstructive knee surgery to resume my NHL career, and this is the last thing I wanted to happen. I am disappointed I have put myself in a position to be suspended again. I sincerely apologize to Jakob for the hit that led to this suspension, and I’m extremely thankful that he wasn’t seriously injured as a result of the play. I also want to apologize to my Sharks teammates and the organization.”

A statement from San Jose GM Doug Wilson:

“The Sharks organization fully supports the NHL’s supplementary discipline decision regarding Raffi. While we do not believe there was any malicious intent, this type of hit is unacceptable and has no place in our game. There is a difference between playing hard and crossing the line and there is no doubt, in this instance, Raffi crossed that line. We’re very thankful that Jakob was not seriously injured as a result of this play.”

Silfverberg says he expects to play Saturday when the Ducks open their regular season Saturday in San Jose.