Fehr and players

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?

McDonagh out with concussion after Saturday’s altercation with Simmonds

Ryan McDonagh
Getty
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The New York Rangers will be without Ryan McDonagh tonight at home to New Jersey, the club announcing this morning that the defenseman is out with a concussion.

McDonagh left Saturday’s game in Philadelphia following an altercation with the Flyers’ Wayne Simmonds that ended with McDonagh taking a punch to the face from Simmonds.

Simmonds received a match penalty and was thrown out of the game, but did not receive any supplemental discipline.

Given the standings, the Rangers can ill afford to lose McDonagh for long. They play in Pittsburgh Wednesday, followed by three home games against Los Angeles, Philadelphia, and Chicago.

standings

Lucic’s plan is to ‘remain a King’ for remainder of career

Milan Lucic, Alex Burrows, Dan Hamhuis
AP
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Tuesday night, Milan Lucic will play his first game in Boston as a member of the Los Angeles Kings.

It should be an emotional return for the big 27-year-old winger. In an interview with the L.A. Times, he recalled his time with his former club fondly, saying how great it was to be a “part of one of the best-ever eras to be a Bruin.”

A pending unrestricted free agent, Lucic also commented on his contract negotiations with the Kings.

“Nothing to get excited about,” he said. “There’s been two or three little talks here and there. My plan is to remain a King and hopefully finish off my career here. Like I said, I go day by day and you never know what tomorrow is going to bring.”

Lucic has 12 goals and 18 assists in 50 games this season. Though the Kings reportedly want to keep him, the question is whether they can find the cap space to make it happen.

Los Angeles already has Anze Kopitar, Jeff Carter, Dustin Brown, Marian Gaborik, Kyle Clifford, Drew Doughty, Jake Muzzin, Alec Martinez, and Jonathan Quick locked up long term. Plus, Tyler Toffoli and Tanner Pearson will require new deals after next season.

Related: Why Lucic is an interesting pending UFA

Despres, Perron return to Pittsburgh for the first time since being traded to Anaheim

FILE - In this Sept. 22, 2015, file photo, Anaheim Ducks defenseman Simon Despres skates before an NHL preseason hockey game against the Colorado Avalanche in Denver. Despres has agreed to a five-year contract extension with the Ducks on Friday, Oct. 9, 2015, solidifying his role in Anaheim after joining the club in a trade last season. (AP Photo/Jack Dempsey, File)
Associated Press
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Simon Despres and David Perron will return to Pittsburgh for the first time since they were shipped to Anaheim via trade.

Monday’s tilt at the Consol Engery Center will be special for both individuals.

Despres was traded to Anaheim for Ben Lovejoy last March, while Perron was sent to the Ducks earlier this season.

Both players may have had some good times in Pittsburgh, but in both instances, things didn’t end up the way they had envisioned.

“I don’t want to talk about that,” Perron said of things not working out in Pittsburgh, per the Post-Gazette. “I made some great relationships. Some really good friends.

“The only thing, it didn’t work. That’s what what [general manager] Jim Rutherford and I and [head coach] Mike Sullivan talked when the trade happened. I wish it would have been different but that’s the way it goes sometimes. It didn’t click as good as you wanted it to be. I’m happy I got a new start and it’s going well.”

The 27-year-old played 86 games over two seasons with the Penguins, and he managed to score just 16 goals and 38 points during that span.

Things have been a lot better for him since the move to Anaheim. Perron has three goals, five assists and a plus-7 rating in his first seven games as a Duck.

As for Despres, things haven’t been as smooth since his departure from the Penguins.

The 24-year-old played well in the final month of the season last year, but he missed 42 games in 2015-16 because of a concussion he suffered near the beginning of the season.

He’s been a welcomed addition to the lineup. Anaheim hasn’t lost since Despres returned to the lineup on Jan. 26.

“He hasn’t gotten any points but we haven’t lost since he’s been back,” Ducks coach Bruce Boudreau said, via the Post-Gazette. “We missed him for sure. In the playoffs last year, he was as good of a defenseman as we had. Big and strong and played against big opposition and he didn’t tire. The more games he gets, the better he’s going to get.”

The defenseman spent most of his adult life in the Penguins organization and he admits that’s something he’ll never forget.

“I guarantee that I’ll be a little bit emotional for the game [tonight],” said Despres. “Spent a lot of years here. A lot of memories and good friends. A lot of friends in Pittsburgh.”

PHT Morning Skate: Sens’ Lazar, Stone broke out of scoring slumps after giving homeless men $50

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PHT’s Morning Skate takes a look around the world of hockey to see what’s happening and what we’ll be talking about around the NHL world and beyond.

Curtis Lazar and Mark Stone found a new way to bust out of scoring slumps. (Ottawa Citizen)

–This young defenseman scored a beautiful goal during a Swedish League game:

–A Kings fan had forward Milan Lucic sign a toaster. (Bardown)

–Watch the highlights from yesterday’s game between the Capitals and Flyers (top of the page).

–The Anaheim Ducks wore Los Angeles Angels themed jerseys during pregame warmup on Friday night:

–On Sunday, Andrei Markov became the third Canadiens defenseman in history to play in 900 games.

–Sports Illustrated looks at the next group of Russian hockey players that will make an impact in the NHL. (Sports Illustrated)