NHL lockout: Is de-certification the next move for NHLPA?

Another round of negotiations resulted in little progress actually being achieved. The NHL is still locked out, and right now that's about all that matters.

OK, not entirely. What matters is getting to a deal to end this hockey soul-sucking show of idiocy. To do that, presumably, the two sides have to meet and actually negotiate. Considering there are currently no plans to do that in the near future. We're left standing in a desert, and the first puck dropping is simply a mirage.

The lack of progress is leading to the rise in talk of the NHLPA deciding to de-certify, meaning they would dissolve the union. NHLPA head Donald Fehr was in Atlantic City, N.J., on Saturday for a charity game to benefit the victims of Hurricane Sandy, and he spoke about the issue with the media (via the Washington Times).

"There are two sets of laws that govern these situations and what happens is that, from time to time, unions and sports unions have essentially said that there are circumstances in which members would be better off without a union and taking action under the antitrust laws," he said. "And that's all I can say about it. You can check what's happened in the other sports."

OK, Don, we'll do just that. You can probably guess that it's something favorable to the union's cause, and you'd be right.

In their lockouts last year, the unions in both the NFL and the NBA elected to de-certify. It was just a week later in each case that a new CBA was signed and the season began. Coincidence? Probably not.

What exactly is de-certification, and why does it seem to scare owners in pro sports more than a visit from their in-laws? Sports lawyer and Eye on Hockey contributor Eric Macramalla (@EricOnSportsLaw) explains what decertification would mean.

It's unlawful for competitors to get together and fix the marketplace. If they do so, they open themselves up to antitrust lawsuits. This applies to the NHL, because the 30 team owners are competitors and they get together and place restrictions on the NHL marketplace. Things like a salary cap, free agency restrictions and rookie pay are all on their face antitrust violations. Another thing that is an antitrust violation: the owners getting together and agreeing to lockout the players.

However, since these restrictions are inside the protective bubble that is the collective bargaining agreement (CBA), the NHL is protected and the players can't sue for these antitrust violations.

That all changes though if the players decertify. By decertifying, the NHL players blow up the NHLPA and revoke the NHLPA's authority to bargain on their behalf.

Suddenly, the CBA exception protecting the NHL against antitrust lawsuits may no longer apply and players are now free to sue the NHL for its antitrust violations. The first antitrust violation they would tackle in court is to have the illegal boycott that is the NHL lockout declared unlawful and lifted.

There was a report a week ago that the union had shot down the idea of decertification, that it wasn't ready to go that route. Since then, the union presented a comprehensive proposal to the owners with little to no traction made from it. So now they are contemplating the big and game-changing move, per Tim Panaccio:

player source from the Fehr meeting on decertification discussion: "it is a serious consideration right now."

— Tim Panaccio (@tpanotchCSN) November 25, 2012

So what has taken so long for the decertification to come up? If it has been so successful for the NFL and NBA, why didn't the hockey players start thinking of this earlier? Well, it's more of a last-resort type of move. If the move didn't scare the owners, we could be looking at a prolonged situation of lawsuits.

It's no wonder why the NHLPA is considering this option now and seriously considering it to boot. It's the power play that the players still have.

If the players decide not to go this route, then it's going to be up to Donald Fehr and Gary Bettman to negotiate the differences down. They have been working on the economic split and seeming to close the gap one week at a time. But the other big issue is contract rights, and Fehr gave an update on that in Atlantic City.

"In a circumstance in which if the cap is going to limited, the player contracting rights, which is where the individual player has an opportunity to get his share of the pie, have to be constricted too. And those become more, not less important, to players as cap space is limited," Fehr said. "When you add to that, that the rights the players believe they must maintain are what they got in the last negotiation in return for massive concessions, it becomes very difficult."

If you've been wondering why the union is making such a big deal about contract rights, that's perhaps a view at why. They need to hold onto something in these negotiations in terms of earning potential, and this is the players' option now that they have moved to a 50/50 split in terms of the economic pie (make-whole issues notwithstanding).

As has been the case for a long time, it seems. Everything is up in the air at the moment, and there's no way of telling where it's going to go.

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