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?

Busy Blackhawks bring back Pokka, reportedly let Rasmussen walk

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A busy off-season for the Chicago Blackhawks continued with some smaller moves that may still surprise some.

The eyebrow-raiser, at least in some quarters, came when the Blackhawks decided not to hand Dennis Rasmussen a qualifying offer, thus allowing the 26-year-old forward to hit free agency. That news comes from The Athletic’s Scott Powers.

Rasmussen played in 68 games last season (along with three playoff contests), receiving almost 12 minutes of ice time per night. Both were examples of him seeing more of a role in his second year with Chicago.

Still, he didn’t put up big numbers at either the AHL or NHL level, so apparently the Blackhawks decided to spring him free. The Chicago Sun-Times’ Mark Lazerus reports that the team might have soured on Rasmussen after he rejected an offer for a contract extension back in March.

Powers also notes that Ville Pokka was signed to a one-year deal, opening the door for him to possibly make Chicago’s roster.

These developments aren’t likely to add to what’s already been a frustrating off-season for Joel Quenneville in particular, but this still lines up with a pattern of changes. In the latest edition of “30 Thoughts,” Sportsnet’s Elliotte Friedman shares some details of Coach Q’s irritation:

21. Joel Quenneville was at the draft Saturday after not appearing on Friday. He stormed out of a coach’s meeting — in full view of reporters — as news broke of the Chicago trades. It would have been very tough for him to lose Hjalmarsson, one of the NHL’s underappreciated great players.

Quenneville’s cage was already rattled by the firing of assistant Mike Kitchen, so here’s hoping he at least signed off on these latest moves.

Report: Red Wings grant Coyotes permission to interview Todd Nelson

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There’s some activity as far as the Arizona Coyotes’ coaching situation goes, and soon there may be some answers.

As noted during the weekend, the Coyotes were interested in speaking with Todd Nelson, who most recently coached the Grand Rapids Griffins (Detroit Red Wings’ AHL affiliate) to a Calder Cup victory. The Red Wings granted Arizona permission to interview Nelson, according to the Detroit Free Press’ Helene St. James.

(Red Wings fans are greeting this news with despair.)

It’s not the only noteworthy development, either, as the Arizona Republic’s Sarah McLellan reports that the Coyotes parted ways with associate coach Jim Playfair today. (The Coyotes confirmed the news moments after this post went up.)

This is a time of change for this organization, and some are bristling at the way they’re handling things. Still, there’s also an argument that the team is ultimately making wise choices, and Nelson could end up being a big part of that.

Assuming they convince him to come on board, of course.

Gryba sticks with Edmonton on two-year, $1.8 million deal

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After spending the last two seasons with the Oilers, Eric Gryba has signed on for two more.

Gryba, the veteran blueliner that was set to go unrestricted on Saturday, has signed a two-year, $1.8 million extension with Edmonton, per TSN. The deal comes after the 29-year-old appeared in 40 games for the Oilers last year, and three during the club’s playoff run.

Gryba is the second UFA blueliner Edmonton has re-upped with, having previously inked Kris Russell to a four-year, $16 million pact. It’s the byproduct of available cap space GM Peter Chiarelli created by shipping out Jordan Eberle to the Islanders in exchange for Ryan Strome.

It’s likely Gryba will continue to play his existing role in Edmonton — a physical, hard-nosed depth defenseman that won’t play every night, but can jump into the lineup in case of injury or when the Oilers face a particular matchup.

This move also gives the Oilers seven defensemen under contract for next season: Gryba, Russell, Andrej Sekera (who could miss extensive time with a torn ACL), Oscar Klefbom, Adam Larsson, Matthew Benning and Darnell Nurse.

So, perhaps Chiarelli isn’t done signing blueliners.

 

 

Report: Kings in contact with Joe Thornton

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Yesterday, TSN’s Pierre LeBrun reported 12 teams were in contact with San Jose’s Joe Thorton who, on Saturday, will become an unrestricted free agent.

Now, it’s been revealed that one of those teams is also one of San Jose’s biggest rivals — the Los Angeles Kings.

Per LA Kings Insider, the Kings have “been in contact” with Thornton, who just wrapped the last of a three-year, $20.25 million deal with a $6.75M average annual cap hit.

More:

On top of Thornton’s abilities are his relationships with key figures in Los Angeles’ front office. He played with Kings General Manager Rob Blake in San Jose, while Senior Advisor to the General Manager/Development Mike O’Connell was Thornton’s general manager when he played in Boston.

On top of these relationships, Thornton also remains very close with Glen Murray, a figure in Los Angeles’ player development, and I’m told the two, who played together with the Bruins for three and a half seasons, regularly communicate.

LeBrun reported that staying with the Sharks remains Thornton’s No. 1 option, but it’s pretty clear interest in him is sky-high — and coming from a number of different places.

Los Angeles has been making moves to clear cap space, recently buying out the remainder of defenseman Matt Greene’s contract. The Kings also lost blueliner Brayden McNabb to Vegas at the expansion draft.

What happens with Marian Gaborik‘s $4.875M cap hit remains to be seen. The veteran winger underwent an offseason procedure for a “chronic” knee issue and, depending on his recovery, could open the year on long-term injured reserve.

Thornton would give L.A. a formidable one-two punch at center along with Anze Kopitar (and a truly formidable 1-2-3 punch with Kopitar and Jeff Carter, for that matter). It’s also worth noting that as he’s gotten longer in the tooth, Thornton has successfully platooned as a winger — most notably during San Jose’s Stanley Cup run in 2016.