The following weeks could bring a new gloom to the lockout as players will now weigh their next option after yet another unsuccessful NHLPA proposal. The cancellation of games through December 14 and a fourth missed paycheck certainly didn’t make the proposal shutdown any easier to swallow.
The players are now threatening the league with a possible decertification of the union altogether. Effectively, this would remove the union as a body and move towards outlawing the lockout through a process of petitions, votes and court sessions.
This process would have to begin with a petition of the players, a third of the player body to sign, in order to get the chance to decertify. Next, the players would have to have at least 51 percent, a majority, to vote in favour of the decertification. If this is successful, they would then proceed to the courts in order to claim a preliminary injunction. Basically, this means the players as a whole are ready to play under the current contracts. If the court rules in favour, the lockout becomes illegal.
However, TSN’s Bob McKenzie warns that this means no draft, no cap, no free agency, or any other medical benefits or pensions offered under the previous Collective Bargaining Agreement.
This would in fact end the lockout, as just about every hockey fan is screaming for at this point. However, the league believes that this process would drag out and essentially mean the end of the season.
“It’s unfortunate,” said NHL Deputy Commissioner Bill Daly. “We’re still planning on having a season this year, but decertification is a time-consuming process that likely would cost the season.”
Buffalo Sabres goaltender Ryan Miller, on the other hand, says nothing will get done until a decertification is filed in a statement he wrote to the Globe and Mail.
“After watching the other sport leagues go through labour disputes last year, it is apparent that until decertification is filed, there will not be any real movement or negotiation,” said Miller. “Many things in our negotiation are very consistent with the NFL and NBA negotiations, and both of those leagues filed papers necessary to decertify.”
Miller is correct. In fact the 2011 NFL lockout looked bleak as ever until the players filed a decertification of the union. In the initial court hearing, the players won their case before being overturned by higher courts. But the process, nevertheless, indeed prompted a deal to be reached shortly thereafter.
An interesting outlook on the idea of a players’ union was given in May by Ron Klempner, associate general counsel of the NBPA.
“Now, the purpose of the union is not so much to prevent exploitation, but it’s really to protect the owners,” said Klempner. “The purpose of decertification, if we do it the next time, will be because the collective-bargaining process has pretty much run its course in professional sports,” he added.
It’s an interesting perspective because the union gives the owners a bargaining table with which to flex its power, as seen in the current NHL lockout. Not to say that a union altogether allows for a bad process, but if there was no union we would never have a lockout because it would simply be outlawed. Illegal.
Miller goes on to explain how players are not being protected but being pressured into an unfair deal.
“They want to see if we will take a bad deal because we get desperate or if we have the strength to push back,” said Miller. “Decertification is a push back and should show we want a negotiation and a fair deal on at least some of our terms.”
A decertification would subtract the power of the owners to lockout the players. This would, oddly enough, put the players on a level playing field in terms of power. The players signed contracts with their respective owners and a decertification seems to be the only way the owners will honour those contracts. Contract rules still seem to be the primary polarizing issue in negotiations.
But before we as fans begin to voice our displeasure to the idea of the union, the purpose of it is in fact to protect the players. To give them a forum where they can express their concerns and not be manipulated by the governing heads of the league. Let’s be honest, if an athlete sits down and tries to discuss legal matters with a lawyer, it’s never going to be a fair negotiation and manipulation is easily done.
The problem with current player unions is now they’re being bullied by the league anyway, by way of a lockout. If the union doesn’t concede to owner demands, they simply shut the door on the season. It’s this ultimate power that is dissolving seasons in all professional sports.
Nevermind the Bettman hat-trick fans like to refer to in terms of a third straight lockout under his reign as NHL commissioner, but a look around at all major sports casts a grim reality on the league vs players’ union struggle.
Including the lockout which lasted a couple hours in 1996, the NBA has faced four lockouts since 1995, the NFL faced an 18 week lockout in 2011, and here the NHL sits in their third league imposed lockout since 1994.
Virtually the only players’ union to run a successful stint in recent years is that of the MLB, led by Donald Fehr himself. Just a couple years ago he agreed to become the executive director for players’ union in the NHL after success in the MLB. Carrying over that success to the NHL has been a power struggle to say the least.
So could this whole NHLPA decertification tactic just be a bluff in order to push the two sides toward a deal? It’s a possibility. The threat includes Fehr losing his job, so it could give some added incentive to press for a fair deal. And it’s certainly the last thing the owners wanted to hear.
The future of the matter is simply unknown at this point. It’s merely an inception and the pros and cons will have to be seriously weighed by the players, who want to play as badly as us fans want to watch.