So the NHL lockout is headed to court.
And the way things are playing out, the NHLPA will likely soon match the league with their own competing lawsuit in another state.
While this all seems extreme, these types of proceedings aren’t exactly new in pro sports – in fact, two other major North American leagues in the NFL and NBA went through similar court battles last year during their own lockouts – but the case law here is pretty fresh and the outcomes remain relatively uncertain.
The past few weeks, to help determine what exactly this pending litigation may mean, I’ve been throwing questions at U.S. sports law expert Nathaniel Grow and he’s been gracious enough to answer.
Grow has been quoted in this space a few times before, but as a refresher, he is an assistant professor at the University of Georgia who specializes in antitrust and sports law. He has written in-depth on the subject in his recent academic article, Decertifying Players’ Unions: Lessons From the NFL and NBA Lockouts of 2011.
If you’re looking for the basics, three weeks ago when talk of decertification of the union first surfaced, Grow offered some interesting thoughts on what was behind the manoeuvre.
With us now at the stage where things are progressing to court, I wanted to run by him three of the key questions that remain out there.
Basically, they all amount to: Where is this going and who will win?
No. 1: Does the NHL’s argument that the NHLPA dissolving the union (through a disclaimer of interest) is a sham have merit? After all, it does appear it’s being done simply for negotiating leverage.
If pro sports unions start doing this over and over, do the courts at some point say “okay enough is enough?”
Grow: “Whether that defence will work or not is a little unsettled. The NFL made the same argument in the Brady case, and the NBA was poised to do the same, but neither case progressed far enough for a court to decide the issue. Meanwhile, the U.S. Supreme Court has never definitively decided precisely what a union must do to assert an antitrust case against management. There are strong arguments on the issue either way.
“Some of it may even hinge on exactly how the NHLPA dissolved itself. Technically, there are two different means to dissolve a union, the more formal decertification and the less formal disclaimer of interest [which is the route the players are voting on this week].
“If the NHLPA did a formal decertification, then they could not reform a union for at least 12 months under US law. That would provide the union with a strong argument against the NHL's sham defence, but would also make it difficult to resolve the dispute in the short-term, thus likely sacrificing the season. On the other hand, if the union disclaimed interest (as both the NFL and NBA unions did), then the union could reform at any time by a majority vote of the players, enabling them to quickly resolve the dispute and save the season, but leaving them more susceptible to the charge that the dissolution is a sham. I suspect the union will disclaim interest rather than decertify if it gets that far.
“One thing in the NHLPA's favour on this issue is that they've never dissolved the union before, even during the cancelled season, so there isn't a pattern of dissolving merely to obtain bargaining leverage. The fact that the NFL and NBA unions recently did it shouldn't fairly count against the NHL players since they are wholly separate unions with different memberships and management.
“However, if the NHLPA does this several times in future years, then the NHL's sham argument will be stronger. Ultimately, if this becomes a pattern over a series of negotiations then yes, I could see courts eventually decide enough is enough.”
No. 2: Why would dissolving the union give the NHLPA any negotiating leverage if it’s widely held that the litigation they’re about to embark down is unlikely to ever reach its conclusion? Isn't this just another stalemate on top of an existing one?
Grow: “It's a really interesting question (and merits a longer answer than I originally anticipated). Disclaiming interest almost certainly would have given the players significantly more leverage had it been done back in October. If they had dissolved the union at that time, there would still have been plenty of time for a court to issue a preliminary ruling on the legality of the lockout before the entire season was endangered. And had the court actually gone so far as to enjoin the lockout, it obviously would have been a huge win for the players.