The calendar turned to January 5 today and NHL fans have yet to see one NHL game this season. Thanks to NHL owners locking out players, gone already is half of the season, along with the NHL All-Star Game and the Winter Classic. Throughout the negotiations, carrots have been dangled in front of fans’ eyes, giving them hope that a season may begin in the near future. The NHL and NHLPA have reportedly been close to reaching a new collective bargaining agreement several times. However, each time a deal appears to be close, a new issue sprouts and the sides spread further apart. Given that NHL commissioner Gary Bettman has self-imposed a January 11 date for a deal to be finalized in order for the season to be saved, how can the NHLPA work to end the lockout?
January 11 is less than a week away. Given this, the NHLPA’s strategy at this point is apparent: disclaiming the union’s interest and beginning the process of filing an antitrust lawsuit. The NHLPA is in the midst of a 48-hour vote to disclaim the NHLPA’s interest as the players’ union. This is the second time that such a vote has been taken in this lockout. The last time the vote was taken, it passed, but the NHLPA’s executive board (namely, Donald Fehr) opted not to disclaim the union’s interest. That decision was likely the result of Fehr’s assessment that negotiations with the NHL were progressing at the time and moving towards an end of the lockout.
However, since that time, negotiations have arguably stalled and federal mediators have begun meeting with the sides individually. With less than a week left to salvage an NHL season, it’s likely now that players will not only vote to disclaim the NHLPA’s interest as their union, but that the executive board will in fact move forward with doing so.
If the NHLPA moves this way, it will become a trade association rather than a union for the time being. Thus, the union will no longer represent players in collective bargaining with the NHL for a new agreement in an attempt to end the lockout. Rather, under the disclaimer of interest process, individual players will have the right to file antitrust lawsuits against the NHL in a bid to end the lockout.
Filing an antitrust lawsuit will not quickly end the NHL lockout. Given the length of time an antitrust lawsuit can take to end a lockout, it is notable that it appears that this is a weapon the NHLPA has waited to pull out until the last minute. In that regard, the NHLPA should be commended for arguably working to fairly negotiate with the NHL as a union for as long as it could. On the flip side, though, had the NHLPA filed an antitrust earlier in the lockout, the lockout may have ended earlier.
If the NHLPA disclaims its interest as a union, the antitrust lawsuit filed by players will likely be a class action lawsuit. The class would be defined as all NHL players, but would have named players–likely your top stars and several rookies–named in the lawsuit. A judge’s decision in favor of the players or a settlement between the parties on the antitrust lawsuit would end the NHL lockout. Thereafter, the players would have to vote to re-form the NHLPA as a union. The NHLPA would then begin negotiating with the NHL the terms of a new collective bargaining agreement. However, many of the terms of the new collective bargaining agreement would likely be reached during negotiations during the settlement process of the antitrust lawsuit. As such, one would assume that this process would be relatively quick.
Arguably, at this stage of negotiations, there are more pro’s than con’s to the NHLPA disclaiming its interest as a union and players moving forward with an antitrust lawsuit. For starters, the NHLPA has likely negotiated for as long as it could with no effect towards ending the lockout. Facing the loss of an entire season, NHL players need to consider alternative options to save their time on the ice and paychecks. At this point, filing an antitrust lawsuit would likely be the most efficient way to do this.
This biggest con to moving this route, perhaps, is that antitrust lawsuits are uncertain. In going this way, the NHL could refuse to negotiate a settlement to the lawsuit. Thus, a judge would decide the merits of the antitrust lawsuit. The players would likely file their lawsuit in a forum friendly to employees. However, they run the risk that a judge would rule that the NHL has not violated any antitrust laws during the course of the lockout. If this were to happen, the players would arguably put in a corner. At that point, they would have to reclaim the union’s interest and begin negotiating again with the NHL like they have been since September. This would arguably uppercut the players in terms of the leverage they would have in negotiations.
One thing is certain: Over the coming days, NHL fans will see much NHL news. Unfortunately, none of it will take place on the ice of an NHL arena.