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?

PHT Morning Skate: 5 things Jagr did in the NHL before Gaudreau, Monahan were born

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–Currently there are four players with a Latino background in the NHL. Those players are: Auston Matthews, Max Pacioretty, Matt Nieto and Al Montoya. Fear the Fin wrote an interesting story about NHL teams not doing enough to market to fans from different backgrounds. “Besides the Sharks, several other teams could be making efforts to reach out to an untapped Latinx market. Dallas, Los Angeles, Las Vegas, hell, even the New York teams have millions of fans that aren’t being reached because of some old, racist idea of what a hockey fan should look like.” (fearthefin.com)

–Blues forward Vladimir Sobotka was fine $5,000 for a high-sticking incident with Blackhawks forward Patrick Sharp on Wednesday night. (NHL.com)

–The Calgary Flames have been an all-or-nothing kind of team so far this season. They’ve had a games where they scored six goals and five goals, but they’ve also been shut out twice. They’re heading in the right direction. (flamesnation)

–Garth Snow was hired by the Islanders in 2006 and he’s made enough mistakes to last a lifetime, but ownership still seems to believe in him. This is a huge year for Snow. If he’s capable of re-signing John Tavares though, maybe ownership’s decision will be justified. (SNY.tv)

–The NWHL is set to start their third season. Unfortunately, a number of Olympic Stars won’t be returning to the league this year. On the bright side, there’s a number of young stars that are ready to take the next step. (victorypress.org)

–Colorado Avalanche fans had a lot of disappointment to deal with last season. They were the worst team in the NHL by a mile, which is making their fans appreciate the little things this season. The Avs have been fun to watch early on this season. (milehighsticking.com)

–The Buffalo Sabres are finally returning home from a road trip, but they’re returning home with a number of injuries. Jacob Josefson, Zemgus Girgensons, Josh Gorges, Zach Bogosian, Justin Faulk and Robin Lehner are all banged up. That should open the door for training camp standout Seth Griffith. (buffalohockeybeat.com)

–Teams get pretty creative when it comes to team building activities. The Washington Capitals, for example, went to  an FBI Academy in Stafford County, Virginia. This kind of looks like fun. (russianmachineneverbreaks.com)

–The Blue Jackets are off to an incredible 5-1-0 start. They’ve won four games in a row and things are looking good for them right now. Despite the great start, there’s still things that could be going better in Columbus. Oliver Bjorkstrand still hasn’t scored, the special teams has been lacking and they can’t seem to win face-offs consistently. (thehockeywriters.com)

–Fanragsports take a look at how each of the head coach’s on new teams are doing in 2017-18. Gerard Gallant has exceeded expectations with Vegas, John Stevens has done a remarkable job in Log Angeles, Ken Hitchcock’s reunion with Dallas has already had ups and downs, Travis Green and Bob Boughner are holding their own in Vancouver and Florida, and Phil Housley and Rick Tocchet have both struggled with Buffalo and Arizona. (fanragsports.com)

–The Toronto Maple Leafs have been excellent at even-strength, but their special teams have helped carry them over the last couple of years.  Jeff Veillette of faceoffcircle.ca looked at the penalties they’ve drawn versus penalties that are called against them. They do well with holding calls, but they struggle when it comes to stick discipline. (faceoffcircle.ca)

Jonathan Drouin is more than just another hockey star in Montreal. The 22-year-old was traded to his hometown team this summer and he couldn’t have been more excited. He tried to get away from all the distractions that come with playing hockey in Montreal, but he couldn’t get away from all the fans. (Sports Illustrated)

–The Calgary Flames moved Jaromir Jagr to a line with Johnny Gaudreau and Sean Monahan. Jagr did a lot of damage in the NHL before his two new linemates were even born. For example, he won two Stanley Cups before they took their first breath on earth. (The Score)

The Buzzer: Celebrating genius of McDavid, Bergeron, Karlsson

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Player of the Night: Patrice Bergeron, Boston Bruins

Nico Hischier collected two goals and an assist in a blistering effort as the Devils beat the Senators in overtime. Erik Karlsson almost ruined things for New Jersey with three assists. Andrei Vasilevskiy pitched an impressive 43-save shutout as the Lightning edged the Blue Jackets. Ben Bishop narrowly kept Clayton Keller and Derek Stepan from even bigger nights, yet each player scored two goals and one assist apiece in a slim Stars win vs. the Coyotes.

Even Bergeron’s teammates made some waves.

There were great choices for player of the night, but ultimately, Bergeron’s return to the Bruins lineup stands tallest. He scored a goal and three assists, soothing injury-bummed Bruins fans as part of Boston’s victory against Vancouver.

Bergeron didn’t ease right in. He won half of his draws, fired six shots on goal, and almost logged 21 minutes of ice time. Maybe he can hold things together for Boston?

Highlight of the Night: Connor McDavid‘s ridiculous assist

This post goes into greater detail on that and Edmonton’s win, so we’ll just stick this GIF in here because you need to see it either way:

OK, but to avoid an overly redundant buzzer, check Hischier here, David Pastrnak‘s great goal, and Mikhail Sergachev‘s big night. And, as a bonus, Will Butcher must have nodded to Karlsson after sending this ridiculous outlet pass:

Outstanding.

You know what? Enjoy Bishop robbing Derek Stepan as a bonus bonus.

Misc.

Click here for Erik Gudbranson‘s hit and fight. Zack Kassian‘s hit on Ryan Hartman is mentioned there, but just in case you missed it, here it is one more time:

Factoids of the night

Pekka Rinne and the Nashville Predators continued their hot streak by blanking the Flyers. Rinne enjoys a milestone moment:

Two impressive bits regarding how dominant McDavid and Karlsson have been:

Scores and more

Bruins 6, Canucks 3 (more)

Devils 5, Senators 4 [OT] (more)

Islanders 4, Rangers 3 [SO]

Predators 1, Flyers 0

Lightning 2, Blue Jackets 0 (more)

Oilers 2, Blackhawks 1 [OT] (more)

Blues 4, Avalanche 3

Hurricanes 2, Flames 1

Stars 5, Coyotes 4

James O’Brien is a writer for Pro Hockey Talk on NBC Sports. Drop him a line at phtblog@nbcsports.com or follow him on Twitter @cyclelikesedins.

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Should Erik Gudbranson get suspended for boarding Frank Vatrano?

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The Boston Bruins power play made Erik Gudbranson and the Vancouver Canucks pay with three goals during the major for his hit on Frank Vatrano, but the NHL might decide to go further.

The NHL’s Department of Player Safety confirmed that Gudbranson, 25, will receive a Friday hearing for the boarding check. The league tends to be vague about this, but Sportsnet’s Elliotte Friedman reports that it’s expected to being an interview over the phone, rather than the in-person variety that can bring about harsher punishments.

Vatrano returned to the Bruins’ eventual 6-3 win against the Canucks, yet there’s a chance that he might have a setback. (Knowing Boston’s recent luck, don’t count on good news until you see it.)

Watch the video and Gudbranson’s fight with Tim Schaller in the video above, via Hockey Fights.

Fans responded to that announcement by pointing out one of Thursday’s other questionable hits: Zack Kassian on Ryan Hartman, which only drew a minor penalty:

James O’Brien is a writer for Pro Hockey Talk on NBC Sports. Drop him a line at phtblog@nbcsports.com or follow him on Twitter @cyclelikesedins.

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McDavid dazzles again, Oilers break slump with OT win vs. Blackhawks

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Update: The Edmonton Oilers ended up needing every bit of Connor McDavid‘s brilliance, as goals weren’t coming easily against the Chicago Blackhawks on Thursday night.

(Even though, as you can see with that highlight-reel assist, McDavid often makes it look easy.)

McDavid also managed a secondary assist on Mark Letestu‘s overtime-winner, ending the Edmonton Oilers’ losing streak at four games. The Blackhawks continue to be resourceful in getting standings points, in this case falling 2-1 in OT.

Anton Forsberg made 40 of 42 saves, but it wasn’t enough against a driven group led by number 97.

Here’s the OT goal.

If you haven’t seen the more amazing of McDavid’s two helpers, do yourself a favor and check it out. You won’t regret it.

***

Connor McDavid’s speed and skill are glorious, but the thing that makes him extra-sensational is just how unstoppable he seems. Even against some of the NHL’s best.

To start the season, McDavid made very-solid Calgary Flames defenseman T.J. Brodie look downright permeable during the most impressive goal in his opening-night hat trick.

If that wasn’t impressive enough, the superstar tore through the Chicago Blackhawks – including certain future Hall of Famer Duncan Keith – and then sent absolutely obscene pass to Patrick Maroon for an easy goal.

You know how people used to say that a fire hydrant could score 50 goals with Mario Lemieux? We might need to bump that down to 30 for modern hockey, but either way, Maroon might laugh uncomfortably at such jokes.

If you prefer your jaw-droppers in GIF form, drop away:

James O’Brien is a writer for Pro Hockey Talk on NBC Sports. Drop him a line at phtblog@nbcsports.com or follow him on Twitter @cyclelikesedins.

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