'See you in court' is only language NHL, union are speaking

  • Article by: MICHAEL RUSSO , Star Tribune
  • Updated: December 18, 2012 - 12:01 AM

As time ticks down for salvaging even an abbreviated season, talks have been replaced by maneuvering that could involve a courtroom.

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Since the summertime, the NHL and NHL Players' Association have corresponded approximately 60 times.

That includes small- and large-group, face-to-face bargaining sessions, conference calls and two failed mediation attempts. That doesn't include the many lunches and dinners shared by the No. 2 men -- Bill Daly and Steve Fehr -- for each side.

Yet here we are, 94 days into the NHL lockout, games have been canceled through at least Dec. 30 and the 2012-13 season remains in peril.

The players are in the middle of a vote that would authorize the union to file a disclaimer of interest if it so chooses, which would effectively dissolve the union and pave the way to players filing antitrust lawsuits against the league.

In a preemptive action Friday, the NHL filed a class action complaint in federal court in New York seeking a declaration that the lockout is legal, and simultaneously filed an unfair labor practice charge against the NHLPA with the National Labor Relations Board.

Yeah, things are ugly.

"Things remain status quo with the union," Daly, the NHL's deputy commissioner, said in an e-mail to the Star Tribune. "There was no contact over the weekend, and there are no new meetings planned. We obviously would prefer that the players return to the bargaining table at the earliest possible date to see if there is a deal to be done.

"Ultimately, a deal will have to be agreed to, regardless of the forum. I suppose it is ultimately up to them to choose what forum that will be, but the union pretending it's not a union anymore certainly isn't going to expedite things."

In response, Fehr, the NHLPA's Special Counsel, e-mailed the Star Tribune: "There is no need for the players to 'return' to the table because the players have never left. It was the owners who indicated last Thursday that they had nothing more to say right now. We are ready to bargain whenever they are."

In the NHL's 43-page complaint that lists the NHLPA and 36 players -- including Minnesotans David Backes, Alex Goligoski, Ryan McDonagh and Jamie Langen- brunner-- as defendants, the league asks for all NHL contracts to be voided if the union files a disclaimer of interest.

Court battle looms?

"The NHL has made its move, a very bold move in court, but now it's the PA's move," said TSN legal analyst Eric Macramalla, a partner with the Ottawa law firm Gowlings. "I suspect they're going to file a disclaimer of interest and the very next day file a lawsuit, probably in the state of California, where it's more player friendly ... and ask a judge to say the lockout is in fact illegal and have it lifted.

"At that point you have to expect a battle over which court the case should be heard in. So this could get messy in a hurry."

Minnesota also is considered labor-friendly, Macramalla said. Last year, the NFL Players' Association filed a disclaimer of interest and eventual lawsuit in Minnesota. U.S. District Court Judge Susan Richard Nelson ruled in favor of the players and ended the NFL lockout, but her decision eventually was overturned by the 8th U.S. Circuit Court of Appeals in St. Louis.

So Macramalla believes NHL players would stay out of Minnesota because Nelson's order was thrown out.

Talks between the NHL and NHLPA broke off Dec. 6. After three days of meetings between a recast group of owners and players, NHLPA Executive Director Don Fehr portrayed to the public that the lockout was close to ending because of a "complete agreement in dollars."

Fehr did this despite a contentious end to talks Dec. 5 and a negative response from the league mere minutes before. This infuriated NHL Commissioner Gary Bettman, who rejected the union's proposal, pulled the NHL's last proposal and railed against the union throughout a 40-minute news conference.

Lawsuit movement

The NHL remains steadfast that it needs a 10-year collective bargaining agreement (with an opt-out after eight years), 50/50 split of revenues and five-year maximum contracts (seven if a team is re-signing its own players). The league also won't accept the union's desire for caps on escrow and compliance buyouts, and insistence on a $67.25 million salary cap that never decreases.

"The players feel like they're up against a cement wall, like there's no more room for compromise, and when that's your view, then you have to say, 'What tools do I have left available to me to extract leverage?' " Macramalla said.

That "leverage" could be dissolving the union and trying to have the lockout declared illegal. If that were to happen, owners could face hundreds of millions of dollars in damages.

Players hope that threat causes the owners to budge. On Nov. 14, 2011, the National Basketball Players' Association filed a disclaimer of interest. The NBA lockout ended 12 days later, the conventional wisdom being that the players got the owners' attention and accelerated a settlement.

The risk, though, is that if neither the NHL nor the players flinch and this hits the court system, the season coul be lost.

"Look at the NFL last year," Macramalla said. "The union disclaimed interest, the lockout was deemed illegal, then the NFL appealed, and they won. That took like four months."

Time already is getting tight. Bettman wants nothing less than a 48-game season, meaning games likely would have to start by mid-January. That means a CBA would have to be reached by early January.

"That's why no one really knows how this is all going to shake out," Macramalla said. "There's a lot of uncertainty out there."

AT A GLANCE

Last negotiations: In-person talks Dec. 13 in New Jersey. Bargaining conference call Dec. 14.

Next negotiations: None scheduled. There wasn't any contact between the NHL and the players' association Monday.

Games lost: 527 (all games through Dec. 30, plus New Year's Day Winter Classic and All-Star weekend).

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