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?

Ducks take control of second in Pacific after edging Oilers

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Connor McDavid was fantastic on Wednesday, but the Anaheim Ducks overcame his strong showing for a significant win in the Pacific.

McDavid scored a goal and two assists, yet Ryan Getzlaf was right there with him with three assists, helping the Ducks win 4-3.

With that, Anaheim is clearly ahead of Edmonton for second in the Pacific. The Ducks would hold home-ice over the Oilers if the playoffs began today, and better yet for them, a division title isn’t out of the question:

1. Sharks – 91 points in 73 games played
2. Ducks – 89 points in 73 GP
3. Oilers – 87 points in 73 GP
4. Flames – 86 points in 73 GP

As you can see, the Oilers aren’t exactly far ahead of the Flames for third, either.

Going forward, the Oilers have an interesting schedule: a mix of games against cellar dwellers (two apiece against the Canucks and Avalanche) plus two games apiece versus the Kings and Sharks.

The Ducks’ schedule includes two matches against the Flames, one against the Kings and one more match at Edmonton on April 1.

Long story short, the jockeying for position is far from over, but this was a pretty significant win for the Ducks.

Video: Connor McDavid shows off speed and skill (again)

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Connor McDavid‘s 26th goal of 2016-17 was a lot like many others: an impressive display of skill and speed. He didn’t blaze past the Anaheim Ducks like has against opponents on other occasions, but his rare wheels still came in handy.

Maybe more than sheer speed, this tally is a reminder that McDavid could do impressive things while losing little or no momentum. It’s one thing to have straight-line speed, but he has the hands and hockey IQ to take advantage of his swift skating.

McDavid already has two points in this one, pushing him to 84 points. He also extended his point streak to five games (three goals, six assists if he stays at one of each on Wednesday).

Islanders grab precious points by beating Rangers

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The goal posts might move from time to time – now they’re chasing the Boston Bruins more than the Toronto Maple Leafs – but the bottom line is that the New York Islanders need to get it done to make the playoffs.

They still have some climbing to do, but Wednesday represented a step in the right direction with a tough 3-2 win against the New York Rangers.

The Rangers built 1-0 and 2-1 leads in the second period as John Tavares struggled with a “hat trick” of penalties, but Tavares & Co. wouldn’t give up. They managed two power-play goals in the third (one by Nikolay Kulemin, the winner by Andrew Ladd) to turn things around for a significant win.

Anders Lee was also a big part of the win, grabbing a goal and an assist. The biggest difference-maker may very well have been Thomas Greiss, who stopped 34 of 36 shots (including all 11 in the third) as the Rangers created a lot of offense.

The Islanders now have 80 standings points, placing them two behind the Bruins for the East’s final wild card spot.

The Rangers’ hold over the first wild card seems quite secure, but they do have to worry ever so slightly about their play at home. With this defeat, they’ve now lost seven straight (0-5-2) at Madison Square Garden.

Video: Rick Nash scores 20th goal in sprawling style

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Rick Nash has his critics stemming from his playoff struggles in the past, but for those who support him, moments like these are satisfying.

Why? Because you’d be absurd to discredit how hard he tries when Nash scores goals like he did for the New York Rangers against the New York Islanders on Wednesday.

Nash went all-out for his 20th goal of the season, sprawling after scoring against Thomas Greiss. It’s quite a sight, and Getty Images really was on top of that one.

via Getty Images

The Rangers may need more from him tonight, however, as the Islanders just went up 3-2. Watch the remainder of the contest on NBCSN.