“Now, though, there most likely isn't enough time left to get a preliminary ruling before the league cancels the season (although it would be interesting to see what the league would do if a court enjoined the continuation of the lockout in, say, late-February).
“So I agree the benefits of dissolving the union are less significant today than they would have been in October. In some respects, the possibility that the players would file an antitrust suit has probably already been factored into each sides' strategic calculations.
“Nevertheless, there is still some incremental leverage to be gained by the players. As things stand today, the owners have clearly decided that they are willing to eat whatever losses they are currently incurring in order to get the deal they want. So unless the players truly believe the league is bluffing, the union must assume that the owners are willing to cancel the season if the players don't cave in. If they disclaim interest, however, they at least force the owners to face the possibility that they will have to pay $30-million per day in damages should a settlement not be reached.
“Admittedly, that likely won't give the players huge leverage over the owners. But it might give them a little bit. Maybe it's enough to get the owners to decide it isn't worth blowing up a season over a 5-year term limit for contracts, and that six or seven years would be acceptable. Or maybe it's enough to get the owners to agree to a slightly shorter term for the next CBA.
“The other thing to keep in mind is what's the downside for the players at this point? If the status quo continues, the season will be lost (again, unless they believe the owners are bluffing and will cave at the last second). Sure, things would become a bit more unpredictable, but these are all highly sophisticated, rational parties. It seems hard to believe that the owners would let a (long anticipated) disclaimer of interest derail the entire process, if they really are interested in saving the season.
“And other than a bit of unpredictability, what do you really lose at this point if you are the players? Especially given that the union leadership can still advise you in the role of litigation counsel, rather than PA management.
“So long story short, I completely agree that the actual benefits are relatively modest at this point. But given that the downside is modest as well, I don't see why the players wouldn't go ahead and disclaim interest. That having been said, though, I'm sure others would disagree and argue that the uncertainty it would introduce outweighs the incremental leverage to be gained.”
No. 3: There was an article on Sportsnet on Monday which stated pretty definitively the players had a losing case here. Does he have a point with regards to where the NHLPA stands?
Grow: “He’s incorrect about the NFLPA. It did pursue a disclaimer of interest, not a formal decertification as he said in the piece. The NFL appellate court decision in Brady also didn't reach the merits of whether the players' disclaimer of interest was valid in general. It merely held that they couldn't get an injunction because the case had ‘grown out of a labour dispute.’ So the players were still free to pursue their antitrust case.
“Other than that, though, what he’s arguing is a plausible outcome for the most part, but I don't think it's nearly as certain as he does. For instance, one could distinguish the NHLPA disclaimer from the NFLPA's insofar as the NFL players disbanded their union before the CBA had even expired. In contrast, the NHL players have appeared much more hesitant to do it, arguably indicating that their intention to dissolve the union is more sincere. I do agree with him that the players voting for disclaimer is an unusual scenario, and an argument in the NHL's favour.
“At the end of the day, no court has ever decided whether a disclaimer of interest is sufficient for players to file an antitrust suit. No court has definitively stated that a formal decertification is sufficient for that matter. Personally, I think there is a reasonable argument to be made that disclaimer should not be sufficient for just the reason the piece argues. But at the end of the day, no one knows for sure how a court would rule. Reasonable minds could go either way on it.”