NHL lockout

NHLPA’s hard-liners hint at decertification after latest offer rejected

The Globe and Mail

Hockey helmets are seen in this file photo. (Peter Power/The Globe and Mail)

The moderates on the player side have had their say. Now the more militant members of the National Hockey League Players’ Association could get their chance to weigh in.

And the word players talk about more and more is decertification.

“Blow it up,” one wrote in a text message on Wednesday.

Decertifying the union has until now been considered an extreme option by players, but it has been one that NHLPA executive director Donald Fehr has informed them about in recent days.

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Last week, when players were considering the league’s demands for a new proposal, Fehr gave them three options:

Capitulate and accept the NHL’s latest offer;

Continue negotiating;

Decertify, just as the NFL and NBA unions did during their lockouts last year.

There was no support for the first option among players on the conference call. Option two, however, had much of the backing, putting No. 3 on the back burner as the NHLPA pursued an agreement on Wednesday in a lengthy meeting with the league in New York.

On hand to help craft the proposal earlier this week were veteran players believed to be moderates like Vinny Lecavalier, Martin St. Louis, Andy McDonald and Shawn Horcoff, among others.

The players’ offer of a 50-per-cent share along with $393-million (all currency U.S.) in additional “make whole” money, however, was rebuffed by the league, as commissioner Gary Bettman and the owners declined to offer any concessions in response.

The two sides are now only $182-million apart over the life of a new five-year agreement, although several contracting issues remain outstanding and may be the largest impediments to a deal.

“I think it’s frustrating for everybody and disappointing for everybody that it’s taken this long and we’re still far apart,” Bettman said.

Bettman said the league was losing up to $20-million a day.

“I will tell you the question players ask me, which is ‘where is their reciprocity in the bargaining process on the other side?’” Fehr countered. “It’s pretty hard to find it.”

If players voted to decertify, the NHLPA would no longer serve as a bargaining unit, and the lockout would either end or have its legality challenged in an antitrust lawsuit.

In the spring of 2011, NFL players did just that when they dissolved their union and pursued an antitrust lawsuit before their lockout had even begun. That fall, after a lockout that lasted more than four months, the National Basketball Players’ Association followed suit.

Both leagues eventually came to an agreement through negotiations, with the decertification and legal action (or potential legal action) believed to have helped force the two sides into a deal.

In the case of the NBA, the players had a new deal 12 days after their decertification vote went through.

The value of professional athletes having a union has become a subject of debate in sports law circles the past few years, as owners have used labour stoppages to shrink players’ share of revenues.

Without a union to negotiate with, a league couldn’t have a collective agreement, which would mean basic elements of the league, such as the salary cap, could be challenged under antitrust laws.

“Now, the purpose of the union is not so much to prevent exploitation, but it’s really to protect the owners,” Ron Klempner, associate general counsel of the NBPA, said in May. “The purpose of decertification, if we do it the next time, will be because the collective-bargaining process has pretty much run its course in professional sports,” he added.

It’s not certain the NHLPA will choose decertification, but support is building among players after their latest offer was rejected so swiftly.

Despite that growing animosity, the two sides are expected to talk again on Friday, even as the all-star game and another two weeks of regular-season games are expected to be cancelled in the next two days. But optimism is in short supply on either side.

Asked Wednesday about the possibility of the NHLPA holding a decertification vote, a union spokesman said only that they would “decline commenting on potential next steps.”

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