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View from upper level seating during the Toronto Maple Leafs season opener against traditional rivals, the Montreal Canadiens at the Air Canada Centre Oct 7 2010. (Fred Lum/Fred Lum/The Globe and Mail)
View from upper level seating during the Toronto Maple Leafs season opener against traditional rivals, the Montreal Canadiens at the Air Canada Centre Oct 7 2010. (Fred Lum/Fred Lum/The Globe and Mail)

NHL lockout

Making the case for a class-action fans’ lawsuit against the NHL Add to ...

The five stages of hockey death are merely the five stages of grief arranged in slightly different order.

Grief’s five: denial, anger, bargaining, depression, acceptance.

NHL hockey’s five: bargaining, denial, depression, acceptance, anger.

The anger, following Monday’s announcement that games are cancelled through the end of 2012, is now full blown. Increasingly, fans are saying: “I hope they don’t go back this year.”

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There is something wonderfully Canadian in such a response. This is a country that prefers to throw governments out over putting governments in. There has always been a peculiar and particular joy – perhaps a colonial vestige – in putting the boots to large institutions that disappoint. We may not have capital punishment, but that doesn’t mean we don’t believe in punishing.

One of the country’s key legal minds was musing privately last weekend over the possibility of season-ticket holders launching a class-action suit against the NHL and its 30 teams.

His notion lies in the possibility that season-ticket holders were deliberately misled when they either purchased or renewed their seats.

One of his law partners – like him, a season-ticket holder in one of Canada’s seven NHL cities – was so angry with the incomprehensible absurdity that the NHL lockout has become that he wrote to his once beloved local team demanding his money back. It proved rather impossible.

Teams have a variety of systems to deal with cancelled games. Subscribers can leave their money with the team and, in some instances, even collect interest, usually in the range of 2 to 5 per cent, 5 per cent actually looking rather attractive to investors in the current economic climate.

In the case of the lawyer who demanded a full refund, he was informed he can be refunded only on a game-by-game basis, as previously scheduled games are lost to the labour dispute.

The strategy is obvious, the legal mind says. You offer season-ticket holders a small incentive to stay; you make it a bother to leave. This works to the advantage of teams as there is, daily, an increasing possibility that if a season-ticket holder leaves for the whole season, he is potentially gone for the next season as well, perhaps gone forever.

Fan loyalty is proving not quite as deep as the ocean, as proved to be the case in 2004-05. There is this time a growing sense that, given the chance, fans might turn on the league and its players if 2012-13 is lost entirely.

And since we are discussing strategy, he adds, you have to presume that the league and its teams had a strategy in place that presumed – perhaps even planned – that there would be a lockout on Sept. 15.

That, he says, raises the possibility that teams sold season tickets fully aware there would be, at best, a shortened season, and, at worst, no season at all. He would call this “false pretenses.” Even if those tickets have caveats in small print regarding the possibility of lost games, he still believes a legal argument could be made.

Season-ticket holders are a powerful force in hockey. Well more than half the available seats are dedicated to their loyalty.

The legal mind thinks there would be judges – also hockey fans – out there who would entertain such a legal question, even if it went nowhere.

Just imagine the squirming, he says, if a court were discussing a forensic examination of league and team e-mails to determine whether the lockout was a certainty even as season tickets were being sold to games that were never going to be played.

Examiners would, he predicts, find a “gold mine.”

At the least, fans should have been “forewarned.” And if they went ahead and purchased their tickets, there should have been an “Eaton’s” guarantee – “Goods satisfactory or money refunded” – that would be immediately honoured if a fan so requested.

The legal mind doesn’t actually believe there would be any court resolution to such a case. Courts, after all, move even more slowly than Donald Fehr or Gary Bettman.

The idea would be to make matters uncomfortable for the league and teams, to annoy them as much as they have annoyed their best fans, and to give fans some “leverage” when, in fact, they currently have none.

After all, he points out, the NHL and the players are fighting over the fans’ money.

Follow on Twitter: @RoyMacG

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