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: Blue Jackets RFA Anderson in contact with Hockey Canada about 2018 Olympics

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The preseason is well underway and Josh Anderson is still without a contract.

Anderson, who scored 17 goals and 29 points last season for the Columbus Blue Jackets, is one of two remaining restricted free agents without a new deal. The other is Andreas Athanasiou of the Detroit Red Wings.

While there were reports this summer about Athanasiou potentially going to the KHL for this season, John Shannon of Sportsnet reported on Thursday that Anderson’s representatives have reached out to Hockey Canada’s staff about the 2018 Olympics. 

Anderson’s entry-level contract, with an AAV of just over $894,000, expired at the end of last season.

Meanwhile, here is the latest on this ongoing contract situation.

Making an impression: Sergachev has ‘NHL written all over him’

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Mikhail Sergachev has, over the summer, stated his belief he can play in the NHL this season.

He had a small taste of NHL action last season, appearing in four games for Montreal — the team that selected him ninth overall in 2016 — before getting sent back to junior and then being traded in June to Tampa Bay, as part of a blockbuster involving Jonathan Drouin to the Habs.

Well, Sergachev made a statement Wednesday in his preseason debut for the Lightning.

He scored once. He also played more than 22 minutes, which led all Lightning players on the night. That included time on the power play and penalty kill. If he was looking to make a favorable impression, to show that he belongs at the NHL level when the regular season begins, this seems to be another step in that direction.

“You watch this kid skate, shoot, stickhandle, he’s got NHL written all over him,” Tampa Bay’s associate coach Rick Bowness told the Tampa Bay Times. “Now we’ve got to give him experience. How much can he handle?”

There is competition on the blue line, with eight defensemen under contract in Tampa Bay for this season. That includes Sergachev, who is still only 19 years old. After getting sent back to junior last season, he recorded 43 points in 50 games with Windsor and then won the Memorial Cup that spring. That said, he’s made it a point of saying going back to junior “is not an option” for him.

Related:

Looking to make the leap: Mikhail Sergachev

Report: Lupul will have ‘independent medical exam’

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Joffrey Lupul issued a statement Wednesday, saying he wouldn’t seek a second medical opinion after the Maple Leafs announced he didn’t pass his training camp physical.

A day later, reports have surfaced that the 33-year-old forward will, in fact, undergo another, independent medical test.

That is according to James Mirtle of The Athletic:

Earlier this week, Lupul made accusations against the Maple Leafs on Instagram.

“I’m ready … just awaiting the call,” Lupul wrote in the comments section of the Instagram post, per a screen grab. “haha failed physical? They cheat. Everyone lets them.”

Lupul, who didn’t pass his physical for a second year in a row, issued an apology yesterday. But those comments — which have since been deleted — seem to have grabbed the attention of the league.

Darren Dreger of TSN added to that, saying it’s the NHL pursuing a second medical opinion on this matter.

“The National Hockey League has that right to pursue the second opinion. That’s exactly what they’re engaging in right now,” Dreger reported Thursday.

“The reasoning behind it is because of the comment that Lupul made on social media. I’ll go back a year ago. The league didn’t step in a year ago but Lupul stayed quiet at that point. So they want to make sure — ‘They’ being the National Hockey League — that the medical evaluation from the Toronto Maple Leafs is 100 per cent above the board.”

Team USA won’t include NHL draft-eligible prospects at 2018 Olympics

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BUFFALO, N.Y. (AP) General manager Jim Johannson has ruled out the possibility of the U.S. men’s hockey team having NHL draft-eligible prospects competing at the Winter Olympics in February.

Johannson tells The Associated Press he doesn’t view anyone from the 18-and-younger pool of prospects capable of cracking the projected lineup of non-NHL players, many of whom are opening this season playing in Europe.

USA Hockey’s assistant executive director says he’s also targeting a number of established college players, and would not rule out keeping a spot or two open for members of the U.S. team competing at the World Junior Championships this winter.

Johansson spoke in Buffalo, New York, on Thursday, where he is attending USA Hockey’s sixth annual All-American Prospects game. The game features the top 42 U.S.-born players eligible to be selected in the NHL draft in June.