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?

Poll: Are the Pens poised to repeat?

SAN JOSE, CA - JUNE 12:  Sidney Crosby #87 of the Pittsburgh Penguins celebrates with the Stanley Cup after their 3-1 victory to win the Stanley Cup against the San Jose Sharks in Game Six of the 2016 NHL Stanley Cup Final at SAP Center on June 12, 2016 in San Jose, California.  (Photo by Bruce Bennett/Getty Images)
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This post is part of Pittsburgh Penguins day at PHT…

By now you know the statistic, but here’s a refresher anyway.

The NHL hasn’t had a back-to-back Stanley Cup winner since Detroit turned the trick in ’97-98, and hasn’t seen a reigning champ return to the Final since Detroit turned the trick in ’08-09.

Doing it once is tough. Doing it twice has become nearly impossible.

In fact, winning the Stanley Cup in recent years has, more often that not, paved the way for an extremely difficult encore. Chicago won it all in 2015, and was bounced in the opening round last year. L.A. hoisted Lord Stanley’s mug in ’14, and missed the postseason entirely in ’15.

Which brings us to the Pittsburgh Penguins.

On paper, this year’s Pens are a virtual carbon copy of the club that won the Cup in June. Their most noteworthy departures were defenseman Ben Lovejoy (off to join former Pens GM Ray Shero in New Jersey) and third-string netminder Jeff Zatkoff, who signed in L.A.

And that’s it.

Everyone else is back.

Sidney Crosby, Evgeni Malkin and Kris Letang are back. The HBK line is back. Both goalies, Matt Murray and Marc-Andre Fleury, are back. Even the depth guys that some weren’t sure the Pens could afford — Justin Schultz and Matt Cullen — are back.

Head coach Mike Sullivan and his staff are back, and reigning GM of the Year Jim Rutherford is back.

At first glance, this would make Pittsburgh a likely candidate to “do the Detroit” (as outlined above, in either scenario). But the NHL is fickle, and a grind — and it’ll be curious to see what that does to a Pens team coming off an extremely long season, with six players set to participate in the World Cup of Hockey.

Anyway, go have a vote:

It’s Pittsburgh Penguins day at PHT

SAN JOSE, CA - JUNE 12:  Sidney Crosby #87 of the Pittsburgh Penguins celebrates with the Stanley Cup after their 3-1 victory to win the Stanley Cup against the San Jose Sharks in Game Six of the 2016 NHL Stanley Cup Final at SAP Center on June 12, 2016 in San Jose, California.  (Photo by Bruce Bennett/Getty Images)
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It’s been a summer of celebration for the Pittsburgh Penguins. They enter the upcoming season as the defending Stanley Cup champs.

The Stanley Cup made its way to the Toronto Hospital for Sick Children in a heart-warming visit from Phil Kessel. Bryan Rust was photographed cuddling with hockey’s silver chalice, because, why not? Jim Rutherford was named the GM of the year when the end-of-season awards were handed out.

All of it a reward for a Penguins team that was struggling in the Eastern Conference before a mid-season coaching change. And shortly after Mike Sullivan took over behind the bench, the Penguins took over the conference, rolling to a championship.

This summer, the Penguins made their pitch to land coveted college free agent Jimmy Vesey, with Sidney Crosby reportedly reaching out to the 2016 Hobey Baker Award winner. Pittsburgh, like many other teams, was ultimately unsuccessful in its quest, as Vesey signed with the Rangers.

The Penguins did sign another college free agent, forward Thomas DiPauli, on a two-year entry-level contract.

They also re-signed forward Matt Cullen to a one-year, $1 million deal. Defenseman Tim Erixon re-signed to a one-year, two-way contract worth $575,000 in the NHL. Justin Schultz, who initially didn’t receive a qualifying offer from the Penguins, making him an unrestricted free agent, eventually re-signed in Pittsburgh and that could give Derrick Pouliot, another young blue liner, some stiff competition when the season opens up.

A Stanley Cup victory did not come easy. The Penguins came out of the playoffs with injuries to several players, including Kessel, who underwent hand surgery.

But Rutherford is confident all the injured players — The Pittsburgh Tribune-Review listed Trevor Daley (ankle), Kris Letang (foot), Nick Bonino (elbow infection), Rust (hand), Patric Hornqvist (hand) and Evgeni Malkin (elbow) as those on the road to recovery this offseason — should be ready for the opening of training camp.

The Penguins could also have a competition in the crease.

Matt Murray, who turned 22 years old in May, backstopped the Penguins to their championship. But Marc-Andre Fleury, 31, would like the opportunity to regain his old No. 1 spot.

Capitals have big plans for Dmitry Orlov, but there is just one problem . . .

WASHINGTON, DC - NOVEMBER 25: Dmitry Orlov #9 of the Washington Capitals celebrates after scoring a goal in the second period against the Winnipeg Jets at Verizon Center on November 25, 2015 in Washington, DC.  (Photo by Rob Carr/Getty Images)
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Dmitry Orlov is still without a contract for the upcoming season.

A restricted free agent, the 25-year-old defenseman had eight goals and 29 points last season, while making $2.25 million in salary for the season, as per General Fanager. His previous two-year contract had an annual cap hit of $2 million. But with training camps approaching, he remains unsigned for right now.

As noted before, there is a cap crunch for the Capitals heading into the new season. Orlov is the only RFA left for the Capitals to re-sign.

From the Washington Post:

According to generalfanager.com, Washington has $3.4 million in salary cap space left, but to allow for in-season roster flexibility or a 14th forward, the Capitals have around $2.6 million to devote to re-signing Orlov.

Still, despite that fact, the Capitals coaching staff has big plans for Orlov for the upcoming season.

“I envision him playing with a [Matt] Niskanen or a [John] Carlson, probably more prime minutes as we try even out our defense a little bit in terms of [workload],” said Capitals head coach Barry Trotz, as per CSN Mid-Atlantic.

“It’s a great opportunity for him. He’s at the right age where he can really contribute. We’ll look for his contributions on the power play, the penalty kill, playing in that top-4 on a pretty regular basis. I just think it’s right for him.”

Maurice: ‘Zero repercussions’ for Jets prospect Laine following offseason knee surgery

MOSCOW, RUSSIA - MAY 21: Patrik Laine #29 of Finland looks on against Russia at Ice Palace on May 21, 2016 in Moscow, Russia. Finland defeated Russia 3-1.(Photo by Anna Sergeeva/Getty Images)
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With NHL training camps approaching and the beginning of the World Cup of Hockey next month, Winnipeg Jets head coach Paul Maurice had some good news to report.

It appears that forward Patrik Laine, the second overall selection in this year’s draft behind Auston Matthews, is progressing well from the minor knee surgery he underwent following the NHL scouting combine. That same operation kept him off the ice when the Jets held their development camp early in July.

“He was held out of (Jets) development camp for precautionary reasons, but he’s back to full training and has been for quite some time,” Maurice told NHL.com.

“There will be zero repercussions moving forward.”

Laine, the reigning World Hockey Championship MVP from earlier this spring, was named to Finland’s World Cup team. The tournament begins Sept. 17. Finland begins the competition the next day against Team North America.

After an unbelievable 2015-16 season — he was named the Finnish league’s playoff MVP and won gold for Finland at the 2016 world juniors with seven goals and 13 points in seven games — Laine now looks to make the leap to the NHL.

With his shot and skill — not to mention an entry-level deal with that carries an AAV of $3.575 million, including $2.65 million annually in performance bonuses, as per General Fanager — he’ll be given plenty of opportunities.

“Patrik is going to be able to do all those things he’s always been able to do,” Maurice continued.

“How long it takes him to do it, I don’t know, but he’s going to get a chance to play. He fits in to what we’re trying to do as a hockey team, so you’ll live with some mistakes that are youth-generated, but he’s a very special talent and I would not be surprised if he comes in and is able to finish and put up numbers.”