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Brooks - Union: We won't decertify [yet]

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Old
11-18-2012, 03:16 PM
  #1
Fugu
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Brooks - Union: We won't decertify [yet]

http://www.nypost.com/p/sports/more_...E93owdlNyiostL

Quote:
We’re told Don and Steve Fehr outlined three options for the players in the face of the NHL’s ongoing militancy as follows, and in no particular order: 1) Decertification; 2) Capitulation; 3) Continued negotiations in an attempt to end the owners’ lockout.

Sources report that few players expressed interest in opening Doors 1 or 2. Rather, an overwhelming number of players on the call directed union leadership to continue on the path through Door No. 3.
The article title seemed to suggest that #3 wouldn't be the preferred option?


Quote:
There was little appetite to adopt that route, though talk of decertification — which presumably would be followed by filing of antitrust action in the U.S and filings in Canada, where labor laws differ throughout the provinces — will inevitably become louder and a more acceptable option for the players if the league continues to stonewall through next month.
Interesting choice of a word, stonewalling by the league. Is that necessary to build a case towards an impasse claim?

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11-18-2012, 03:25 PM
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I know at one of my hotels, the union decertified and the owners ended up bending the workers over the canteen counter. How would decertification help the players?

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11-18-2012, 03:40 PM
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What would be the repercussions of the Union decertifying? The NBAPA did it last year didn't they?

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11-18-2012, 03:42 PM
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What the hell are they waiting for? Do it and get it over with and see if it helps your cause. Right now both sides are only contributing to damaging the already fragile reputation of this sport.

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11-18-2012, 03:50 PM
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Quote:
Originally Posted by jumptheshark View Post
How would decertification help the players?
They can file anti-trust claims against the league if the lockout is continued after a decertification has taken place, trebling the amount owed as damages.

--> Anti-trust litigation takes a very long time however.


Quote:
Originally Posted by The Note View Post
What would be the repercussions of the Union decertifying? The NBAPA did it last year didn't they?
I found these links on the NFLPA and NBAPA:

Quote:
“We express no view on whether the League’s nonstatutory labor exemption from the antitrust laws continues after the union’s disclaimer. The parties agree that the (Norris-LaGuardia) Act’s restrictions on equitable relief are not necessarily coextensive with the substantive rules of antitrust law, and we reach our decision on that understanding,” Judge Steven M. Colloton wrote in the ruling.
http://usatoday30.usatoday.com/sport...kout-nfl_n.htm


The lone dissenting opinion however states the following:
Quote:
In sum, because I believe the Norris-LaGuardia Act does not apply in a situation where the Players are no longer represented by the union, I would conclude the NFL did not make the necessary strong showing of likelihood of success on the merits. Moreover, as it relates to the fourth factor, the NFL’s failure to make the necessary showing on the merits detracts from the NFL’s argument that the public interest favors the application of labor laws in the current context. At best, when considering the public interest in having a 2011 NFL season and, by extension, continuing with normal operations necessary for that objective, the public interest factor is a wash. Taken in conjunction with the balance of harms, which clearly favors the Players during the pendency of the expedited appeal, I would deny the NFL’s motion for a stay.
http://eye-on-football.blogs.cbsspor...75988/29346764


Some legal types would need to chime in here, but I don't know how you can force employees to unionize if they choose to disband. If everything indeed is shut down, what entity is pursued legally if the entity no longer exists?

I think if the Fehrs present this as an option, they must be aware of the mechanics.

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11-18-2012, 03:59 PM
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If No. 3 is the path they want to take, I hope they bring something a bit different to the table at least. I question anyone who would suggest that the players should capitulate to the owner's proposals as is but unless they bring something to the table, it will be the same song and dance. While they could go round and round in circles hoping that the owners will cave (and using the recent Snider article as motivation), that is a bit too risky. If there are contractual changes they are willing to eventually agree to, why not barter their consideration of some of those changes in exchange for the absolute refusal of others?

Though my theory is still that the league is holding on to ALL of the contractual issues because the players are still holding on to delinkage but again, that's nothing more than my own theory.

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11-18-2012, 03:59 PM
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Decertification sounds like a good way to end the season, but the NBA did and they were back playing within weeks. I doubt Fehr would encourage that enough for players to do it.

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11-18-2012, 04:03 PM
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Quote:
Originally Posted by Fugu View Post
They can file anti-trust claims against the league if the lockout is continued after a decertification has taken place, trebling the amount owed as damages.

--> Anti-trust litigation takes a very long time however.




I found these links on the NFLPA and NBAPA:

http://usatoday30.usatoday.com/sport...kout-nfl_n.htm


The lone dissenting opinion however states the following:


http://eye-on-football.blogs.cbsspor...75988/29346764


Some legal types would need to chime in here, but I don't know how you can force employees to unionize if they choose to disband. If everything indeed is shut down, what entity is pursued legally if the entity no longer exists?

I think if the Fehrs present this as an option, they must be aware of the mechanics.
I was one of the senior managers in the hotel, so it did not affect me, but when the hotel union decertified (Obviously this is different with the NHL)--they lost bargining power during contract talks

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11-18-2012, 04:05 PM
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Quote:
Originally Posted by CerebralGenesis View Post
Decertification sounds like a good way to end the season, but the NBA did and they were back playing within weeks. I doubt Fehr would encourage that enough for players to do it.

Again, not a lawyer, but my initial impression was that it wasn't so much that the courts were blocking decertification per se, but the timing of it, which was viewed strictly as a negotiating ploy before an impasse had been reached. If an union can declare there is an impasse or lack of negotiation in good faith and furthermore can document such, they might have a legal basis for avoiding the 'negotiating ploy' label.

I'll check a couple other legal sites to see what I can drum up, unless some of the lurking lawyers here steps up.

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11-18-2012, 04:05 PM
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"if the league continues to stonewall through next month."



Wow, talk about the pot calling the kettle black!!!

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11-18-2012, 04:10 PM
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Quote:
Originally Posted by jumptheshark View Post
I was one of the senior managers in the hotel, so it did not affect me, but when the hotel union decertified (Obviously this is different with the NHL)--they lost bargining power during contract talks

If I recall, you're not in Canada or the US either, so not sure that the same laws would apply.


Of course, the entire point to unionizing in the first place is to gain bargaining power. The Strike as a work stoppage measure favored employees, up to a point. The pendulum has swung in the other direction now, with employers using the reverse-Strike... aka, Lockout to coerce the union into accepting their terms.

What I believe we're seeing in pro sports anyway is this: is the presence of the union more helpful to the members or the employers? If the union loses more by being forced to collectively accept terms that favor the owners more than these favor them, the answer may be decertification. At least in sports, it wouldn't really be good at all to have no union as the entire system of drafting, free agency and 'contracting' practices would essentially disappear.

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11-18-2012, 04:35 PM
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http://prohockeytalk.nbcsports.com/2...d-the-lockout/

Quote:
Thatís where decertification (or disclaiming interest) comes in. Decertification is the pin that bursts the CBA protective bubble. By dissolving a Union, the CBA is no longer able to protect a league against antitrust lawsuits.
Things, though, changed in 2011 when the NFL Union was dissolved and the players filed an antitrust lawsuit against the league to block the lockout. The Court of Appeal ruled that despite the Union dissolving itself, the CBA still protected the NFL from the antitrust lawsuit. That was a game changer for leagues.
As a result, antitrust litigation and decertification has become a far less effective tool for players in CBA negotiations. That means itís highly unlikely that NHL players will decertify the Union. So donít expect to see it.
Indeed, the message that has been sent by the Court of Appeal is that deals are hammered out at the bargaining table and not in the courtroom.
Seems to all hinge on the Norris-LaGuardia act, and if a different court would rule in the same manner, given the dissenting opinion's points. Furthermore, who do you call if an union indeed disbands completely?

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11-18-2012, 04:47 PM
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Ya i'm gonna wait for someone to clean this up before I pass judgment. But It's interesting that this would come out and reveal that they aren't "totally unified".

Also doubt that they decertify. We'll see how tomorrow's talks go but I don't know if that would necessarily expedite this process especially with multiple deadlines looming and the biggest line in the sand not too far off.

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11-18-2012, 04:58 PM
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If the union decertifies, what happens to all of their contracts? Their contracts were signed under a CBA and were subject to that CBA. If they decertify, doesn't that void their contracts should the league lift the lockout while they are disbanded?

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11-18-2012, 05:19 PM
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When was the last time the NHL lost a court challenge of any kind?

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11-18-2012, 05:56 PM
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Quote:
Originally Posted by Fugu View Post
They can file anti-trust claims against the league if the lockout is continued after a decertification has taken place, trebling the amount owed as damages.

--> Anti-trust litigation takes a very long time however.
The length of time it takes for the courts to settle the antitrust dispute is key here. Lawyers for both the NHL and NHLPA realize that antitrust litigation can take years. So I don't believe the prospect of paying treble damages would put any significant pressure on the NHL to lift the lockout in the short-run.

With regards to using decertification as a way to get a Federal injunction to stop the lockout, the U.S. Court of Appeals for the Eighth Circuit took the wind out of that idea when they ruled that the Norris-LaGuardia Act still applies even in the absence of a union.

Whats worth noting is that if the players do decertify, the players may file individual suits in the states or provinces that they play in. California and Arizona are governed by the U.S. Court of Appeals for the Ninth Circuit, which is decidedly more pro-labor than other federal courts and may take a more player-friendly view of the Norris-LaGuardia Act. The NHL would likely try to move all litigation to New York (U.S. Court of Appeals for the Second Circuit) or Minnesota/Illinois (U.S. Court of Appeals for the Eighth Circuit) where the courts have been more favorable to the League's interests.

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11-18-2012, 06:28 PM
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Quote:
Originally Posted by The Note View Post
What would be the repercussions of the Union decertifying? The NBAPA did it last year didn't they?

Decertification would mean that a pretty big group of current NHLers will never see another NHL paycheque.

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11-18-2012, 06:51 PM
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Quote:
Originally Posted by jumptheshark View Post
I know at one of my hotels, the union decertified and the owners ended up bending the workers over the canteen counter. How would decertification help the players?
I'd think there's a big difference between a professional sports league union and a hotel employee union.

It's really hard to say what would happen, but I think the key point here is that since every player would effectively be their own UFA the competitive nature upon which teams pursue UFA's could lead to the players coming out ahead. Of course it could also lead to a loss of jobs since a number of teams may not survive if you take out the competitive nature of the game, and let New York and Toronto spend over $100M on player salaries while Phoenix and Columbus are paying $20M.

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11-18-2012, 06:59 PM
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Quote:
Originally Posted by Fugu View Post
http://prohockeytalk.nbcsports.com/2...d-the-lockout/



Seems to all hinge on the Norris-LaGuardia act, and if a different court would rule in the same manner, given the dissenting opinion's points. Furthermore, who do you call if an union indeed disbands completely?
Judges don't generally like to try to overrule a court whose opinion supersedes them. Doing so can greatly damage your career and is usually fruitless anyway, since your new decision just goes right back to the same appellate court, which overturns it.

The only reason to even think about decertifying, from the union's perspective, is because Canada's court system is not subject to US anti-trust rulings.

Then, the antitrust litigation will take years and years to sort out. In the interim, the NHLPA's members make no money whatsoever, apart from what they can get in Germany or Russia.

It would be like killing the other guy by cutting your own leg off and battering him into unconsciousness with it before you bleed out.

And even then, there's no guarantee Congress wouldn't change the laws in the interim to grant sports leagues antitrust exceptions, which they probably would.

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11-18-2012, 07:01 PM
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Decertification is the nuclear option. Expect it to be followed quickly with a major anti-trust lawsuit (on the merits) and taking the cap off the table.

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11-18-2012, 07:01 PM
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Quote:
Originally Posted by billybudd View Post
It would be like killing the other guy by cutting your own leg off and battering him into unconsciousness with it before you bleed out.
Thats a...uh...colorful analogy there billybudd.

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11-18-2012, 07:02 PM
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Quote:
Originally Posted by RandV View Post
I'd think there's a big difference between a professional sports league union and a hotel employee union.

It's really hard to say what would happen, but I think the key point here is that since every player would effectively be their own UFA the competitive nature upon which teams pursue UFA's could lead to the players coming out ahead. Of course it could also lead to a loss of jobs since a number of teams may not survive if you take out the competitive nature of the game, and let New York and Toronto spend over $100M on player salaries while Phoenix and Columbus are paying $20M.
Doubtful. the way it would probably work in practice is the union would decertify, the league would attempt to impose whatever work rules it wanted on the players absent a union interfering. Someone for the "swear it's not the NHLPA" then files an antitrust complaint and nothing happens for years.

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11-18-2012, 07:08 PM
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Quote:
Originally Posted by Fugu View Post
http://prohockeytalk.nbcsports.com/2...d-the-lockout/



Seems to all hinge on the Norris-LaGuardia act, and if a different court would rule in the same manner, given the dissenting opinion's points. Furthermore, who do you call if an union indeed disbands completely?
I've read other articles on this matter. This NBC article refers to blocking the lockout on anti-trust grounds after decertification (a procedural matter). The same decision said the anti-trust lawsuit could still be pursued on the merits. This particular article does not talk about that. There's lots of material on that point elsewhere on the net.

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11-18-2012, 07:12 PM
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Quote:
Originally Posted by Erik Estrada View Post
Decertification is the nuclear option. Expect it to be followed quickly with a major anti-trust lawsuit (on the merits) and taking the cap off the table.
Which would lead to NHL pushing for non-guaranteed contracts

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11-18-2012, 07:19 PM
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Quote:
Originally Posted by Erik Estrada View Post
Decertification is the nuclear option. Expect it to be followed quickly with a major anti-trust lawsuit (on the merits) and taking the cap off the table.
The cap is only applicable under a enforced CBA. Technically, the cap is being treated as status quo but there's nothing to prevent the union from fighting the cap in whatever CBA they sign next.

From what I can gather, anti-trust suits would only be filed if the union disbanded and the league still locked them out. If the league lifted the lockout after the union disbanded, I believe that would make all players UFAs and new contracts would have to be negotiated. If the owners take the chance of lifting the lockout to prevent anti-trust suits, I would think that the large portion of the union will be at a severe disadvantage. There would be no cap ceiling or cap floor, guaranteed contracts would have to be negotiated individually and there would also mean that with so many players up for grabs, I would think more than two handful of players will never play NHL hockey again, coupled with a good chunk of players who will likely look at a decrease in their current pay, while star players will undoubtedly get more on the market. Keep in mind, there won't be any minimum salary...all the rules would be thrown out and it would literally be a free market and I don't believe revenue sharing would be forced upon any of the big league teams either. If the league called their bluff (which I don't think they would) the union might be in trouble. But this is just based on things I've come across, I don't know how accurate my understanding of the situation is. Anyone with a background in law is free to correct me.

If my understand is correct and players were indeed left to fend for themselves, I'd imagine Scott Gomez may be very screwed.

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