Russo: NHL seeking to void contracts if players file 'disclaimer of interest'
- Blog Post by: Michael Russo
- December 15, 2012 - 11:30 AM
We're at the point of the NHL lockout where we've gone from mediation to potentially the court system.
On Friday, it was first reported by TSN's Aaron Ward that the NHLPA Executive Board decided on Thursday that it's time to seek a vote from the 700-plus player membership whether or not to authorize the Board to file a disclaimer of interest if it so chooses. So, to be clear: Not to necessarily go that route; just to vote to give the Board that authorization if it wants to go that route.
A disclaimer of interest is essentially where Executive Director Don Fehr and the NHLPA effectively walk away from the players and say the Union no longer represents its membership. That gives players the right to file lawsuits against the NHL for locking them out and to go after all the things agreed upon in that collective bargaining agreement, things like the draft, free agency, etc., etc.
The Union has been discussing this possibility publicly for some time. But in a preemptive strike once that threat became public knowledge, the NHL filed a class action complaint in federal court in New York seeking a declaration that the lockout is legal AND the NHL filed an unfair labor practice charge with the National Labor Relations Board (NLRB), alleging that by threatening to "disclaim interest," the NHLPA has engaged in an unlawful subversion of the collective bargaining process and conduct that constitutes bad faith bargaining under the National Labor Relations Act.
The NHLPA says this is "completely without merit."
The 43-page complaint to federal court can be read here, courtesy of Sportsnet in Canada. Named as defendants are the NHLPA, the 31 players on the negotiating committee, including Minnesotans David Backes, Jamie Langenbrunner and Alex Goligoski and also five others that have different types of contract statuses (restricted free agent, unrestricted, unsigned draft pick, etc., and an NHLer playing overseas -- Minnesotan Ryan McDonagh).
In the complaint are several players quoted either in articles or on Twitter where they talked publicly decertification (where the players disavow themselves from the union rather than vice versa) or disclaimer of interest. In addition, the NHL has taken quotes of players also demonstrating complete faith in the Fehr Bros., so the league is trying to demonstrate that this would just be a negotiating ploy and not the fact that the union cannot adequately represent the players.
(This is clearly one reason why Commissioner Gary Bettman doesn't allow owners to speak publicly. May this be a learning lesson to us all; words can be used against you at a later date).
So while the NHLPA's main objective might be to try to make the NHL budge and negotiate a CBA (owners don't want to 1) pay excessive damages to the players potentially in lawsuits and 2) operate a league where there's no rules), the NHL is now trying to dissuade the players from going this route.
Regardless, according to RDS in Canada, starting Sunday, the NHLPA will have a five-day vote to see if the board is authorized to go the disclaimer of interest route if it so chooses by Jan. 2. Two-thirds of the players would have to vote yes for the NHLPA to then decide whether it should go this way.
As part of the NHL complaint, the most interesting section is No. 14: "In the event that the court does not grant the declarations described in paragraphs 9 through 13, the NHL requests a declaration that, if the NHLPA's decertification or disclaimer were not deemed invalid by the NLRB, and the collective bargaining relationship between the parties were not otherwise to continue, all existing contracts between NHL players and NHL teams (known as Standard Player's Contracts or "SPCs") would be void and unenforceable."
Basically, what the league is saying is that if the collective bargaining agreement ceases to exist, contracts negotiating under it should not exist either.
Via email, I was in touch today with TSN legal analyst and Partner at Gowlings in Ottawa Eric Macramalla (must follow on Twitter at @EricOnSportsLaw) to ask essentially what this means. His reply:
"The NBA argued the same thing – that player contracts would be void because the CBA no longer applies once the Union decertifies or disclaims interest. The league is arguing that the player contract is governed by, and is in, the CBA. By extension if the collective bargaining relationship between the players and the owners is over by way of the disclaimer or decertification, then player contracts should also cease thereby becoming void.
"That is an ambitious argument. It would meet with resistance from the players. It may also be a tough argument to make successfully in court. A judge may not want to strike down the contracts unless the player contracts actually says the contract is void under these circumstances. So may be a tough one for the NHL to prevail on but there is nothing wrong with advancing the argument. We do that kind of stuff all the time at law."
A few people have asked me if the NHL somehow won this argument if the NHLPA disclaims interest, does that mean "we lose Parise and Suter."
I kinda chuckled. It means ALL contracts in the NHL would be void.
I have trouble buying that we'll ever get to that juncture.
Basically right now, there's a whole lot of uncertainty about where this goes from here.
The hope is like the NBA, all these type of threats suddenly cause both sides to compromise and strike a deal and say, "is this all worth it?"
That happened in the NBA when 12 days after the players filed a disclaimer of interest last year, the lockout was over.
So, some feel this could actually spur a deal relatively soon.
I just don't know. First, I have covered the NHL since 1995. I have learned that sanity rarely prevails in this league.
The anger between these two sides right now is venomous.
The owners have dug in, clearly incensed by Don Fehr. The players are downright offended by the way they've been treated. And as we all know by now, you pick a fight with a bunch of hockey players, and they'll rally together and fight back.
My fear is go the disclaimer of interest route, I don't know if we have 30 teams on the back end of that thorny process. That may sound like a good thing for those who want the NHL to lose all the unhealthy markets to begin with, BUT, I hope the players understand that lost teams mean scores of lost jobs as well. So, be careful what you're voting for if you're a fringe player.
On the other hand, maybe this is the type of thing that causes the owners to cave. What would a disclaimer of interest do to franchise values? Who the heck is buying an NHL team if there's no collective bargaining agreement to essentially restrict player rights and keep this from being the Wild, Wild West?
(By the way, imagine what the heck new St. Louis owner Tom Stillman is thinking right now. "I just bought into this!" I'm shocked Greg Jamison is still going through with his purchase of Phoenix during this whole mess).
Anyway, I'm rambling.
To me, this is all scary and as I've said throughout this lockout, as somebody who loves the game and has spent his entire adulthood covering this great game at the NHL level, it bothers me what these sides are doing to the future of this league. The damage right now is vast.
I'd also like to get back to covering hockey games and not pretending I'm some economic expert crunching numbers in CBA proposals and now some legal expert trying to figure out the nuances of decertification, disclaimers of interest and class action complaints!
I'll be on KFAN today in studio at 1:35 p.m. CT, probably with my blood pressure rising throughout. I should also have an article with an update to this chaos in Tuesday's paper.
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