Decertification and the CBA process

After the NHL owners rejected the latest offer from the players on Wednesday, the rumblings had started that union leader Donald Fehr may decide to talk to the players about decertifying the union and taking the negotiations to court. If this happens, fans may be in for the long haul as the situation makes it way through the courts. While I’m sure many people aren’t sure as to what this entails, I decided to answer some questions to shine some light as to the process that may lie ahead for both sides. 


1. What is decertification?                                                                                                                                   


In simple terms, this is when a union ceases to exist. There are many layers to this and it’s a very complicated process. First, the players would have to petition within their own union to decertify. There must be 33% of players who petition to decertify. Once there are enough players who petition to decertify, it goes up to a vote within the union. If a majority votes in favor of decertification, then paperwork is filed with the National Labor Relations Board.  After the NLRB approves the paperwork, the NHLPA ceases to exist. 


2. Why would the players decide to do this?


Good question. As of right now, since there is a player’s union, the collective bargaining agreement dictates how negotiating a new agreement is to take place. If there is no union, the courts could then be forced to rewrite a new CBA. Also, since the NHLPA no longer exists, it opens the league up to antitrust lawsuits. If it got this far through the courts, the NHL would have a tough time disputing the fact that they are a monopoly. The players also hope by doing this that the owners will cave and rush to get a new CBA in place before the case was brought before a judge. This is what happened last year in the NFL. The downfall to this would be that the NHLPA completely loses the PR battle and the owners see this as a slap in the face. They could take away all of the concessions they've made thus far in negotiations. 


3. Could the NHL be sued right now under antitrust laws?


No. The collective bargaining agreement protects the league from these kinds of lawsuits from occurring. If the union decertifies, then all bets are off.


4. What can the owners do if the players decertify?


The first thing the owners would do is challenge the decertification. They would say that a collective bargaining agreement still continues with the players and the league and that the act of decertification is just posturing on the side of the NHLPA in order to get an unfair deal that favors them. When the NFL tried this last year, the courts ruled against the league, hence why a new CBA was drafted rather quickly. Since a precedent now exists, the courts would more than likely rule in favor of the union. This would essentially rule the lockout as illegal.


5. Wasn't the lockout ruled legal before?


Yes, it was ruled legal before labor boards in Alberta and Quebec. If the union decided to go this route, the paperwork would be filed in the United States where the outcome would highly favor the NHLPA.


6. What would happen if the courts ruled in the players favor?


The short answer: Anarchy. Since there is no union, no CBA, and the courts have ruled the NHL in violation of antitrust laws, things that hockey fans have grown accustomed to, such as the NHL Draft, the salary cap, mandatory minimum and maximum dollar amounts on contracts, and roster limits would cease to exist. You could potentially see a kid who was slotted to be drafted in the second round sign with any team for an amount of money that would make one cringe. Teams could sign as many players as they wanted. In other words- the league would turn into the Wild, Wild West and there’s no sheriff to keep the law. The NHL would agree to a new CBA before it even got this far, but the sheer thought that this could happen send chills down my body.


I hope I’ve been able to explain things a bit better for you. If you have a question that I didn’t answer here, don’t hesitate to tweet or email me and I will get back to you as quickly as I can with an answer. 


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About Jeffrey Kleiman

Long-suffering Caps fan and fanboy hack blogger