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NHLPA Looking At Disclaimer Of Interest

from Eric Macramalla, TSN Legal Analyst,

While decertification is the players walking away from the Union, a disclaimer of interest is the Union walking away from the players. So a disclaimer of interest occurs when the Union terminates its right to represent the players. It's also a less formal process than decertification. It can be as quick as Donald Fehr sending a letter to the Commissioner's office declaring the NHLPA no longer represents the players as a bargaining agent. There's no vote, no petition and no decertification election.

more on the difference between decertification and disclaimer of interert...

added 1:30pm,

 

Filed in: NHL Talk, NHLPA, | KK Hockey | Permalink
 

Comments

Paul From Cali's avatar

No way the NHLPA follows through on this “authorization”  To do so would be admitting that hiring Don Fehr was a mistake & that he’s incapable of negotiating a deal on behalf of the players.

Posted by Paul From Cali on 12/14/12 at 03:31 PM ET

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Probably a bluff. Time to disclaim, if there was one, was months ago. Don’t see why months and years of lengthy court battles is better for 750 guys than one less year tacked onto contracts for the 5 guys who could leverage an 8 year deal, don’t currently have one and would want one. Then again, I didn’t see why another round of cancellations was preferable to one extra contract year that nobody will ever see, so who knows.

Posted by larry on 12/14/12 at 03:57 PM ET

J.J. from Kansas's avatar

Don’t see why months and years of lengthy court battles is better for 750 guys than one less year tacked onto contracts for the 5 guys who could leverage an 8 year deal, don’t currently have one and would want one.

Huuuuuuuuuuuge gamble, but the possibility (no matter how tiny I believe it to be) of the 3x antitrust penalty still looms.

Posted by J.J. from Kansas on 12/14/12 at 04:19 PM ET

Paul's avatar

Pierre LeBrun of ESPN,

The NHL Players’ Association sent a strong message to the NHL when news broke Friday that the players’ executive board voted unanimously in favor Thursday night of asking the entire membership of 700-plus players to vote on whether to give the executive board the power to execute a disclaimer of interest.

The key here is that executive board isn’t saying it’s going to definitely go down this route. But it just wants the hammer IF it decides to go down this route.

It’s actually a clever play by the players. On the one hand, you get across your message loud and clear to the NHL, your prototypical pressure tactic to try to get the league to move off its latest offer, and yet you haven’t actually filed the disclaimer of interest. You’re just hinting at it.

Now, it’s not as if the NHL didn’t see this coming. The league, in fact, prepped the board of governors for such an occurrence last week when it met in New York. And in conversations with league sources throughout this lockout, it’s clear they’ve been ready for this.

more

Posted by Paul from Motown Area on 12/14/12 at 04:28 PM ET

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Huuuuuuuuuuuge gamble, but the possibility (no matter how tiny I believe it to be) of the 3x antitrust penalty still looms.

Posted by J.J. from Kansas on 12/14/12 at 03:19 PM ET

Oh, I understand, conceptually, why a sports union would decertify or disclaim. In a situation like the 04 lockout, where the two parties were billions of dollars apart and talking in terms of unrelated frameworks, when they were talking at all, which was almost never, this course of action would have made sense. I think it DID make sense both times the NFLPA tried it.

But now…with these differences…I just don’t see how it’s worth engaging in a game of Russian Roulette, particularly if you have no way of knowing if there’s even a bullet in the gun (and let’s face it; if a court thought the NFLPA’s disclaimer was a negotiating ploy, it’s hard to see how one wouldn’t think the same of the NHLPA’s), let alone who all gets shot and who wins what money in what bet.

Posted by larry on 12/14/12 at 04:45 PM ET

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Posted by Paul from Motown Area on 12/14/12 at 03:28 PM ET

Lebrun

It’s clear from my conversations with a few players Friday that if the NHL ever moved its player contract term limit to six years instead of five, and compromised a little more on the transition rules (compliance buyouts), that would be greatly appealing to many players. At least enough to bring a vote, anyway.

Then we get to the part where I don’t quite understand what Bettman’s doing. At the end of this scheduled season, no matter what’s agreed upon, about a dozen teams, without having acted irresponsibly, find themselves in the same player dump Hell that Chicago did after winning the cup.

Whether one-time compliance buyouts are “outside the system” is totally ******* irrelevant. To remain level on a rug Bettman pulled out from under them requires an adjustment from individual orgs. He needs to give them the breathing room to adjust.

I could go on about this a lot, but if the GMs want this, the players want this, and each individual owner has the freedom to decide for himself whether or not he wants this on his club—on a one-time basis—I don’t see what Bettman’s malfunction on this issue is.

Posted by larry on 12/14/12 at 04:58 PM ET

J.J. from Kansas's avatar

and let’s face it; if a court thought the NFLPA’s disclaimer was a negotiating ploy, it’s hard to see how one wouldn’t think the same of the NHLPA’s

In fairness, the NFLPA’s was absolutely a negotiating ploy that was attempted before the players were even locked out. The only real precedent we have to go on with this one where the lawsuits start flying after the paychecks start getting missed is the NBA’s.

Which leads me to question why so many hockey writers keep saying that the NHLPA disclaiming interest would kill the season.  I still don’t know how the NHL is that much more willing to chance lengthy and expensive court battles than the NBA was. We’re not still facing such a huge gap between the two sides that it seems to make much sense for the NHL’s reaction to a disclaimer of interest to be “ok, let’s blow it all up and go at it in court”.

Then again, the NHL absolutely needs the NHLPA to believe that’s the case, so it’s very likely just a case that these hockey writers’ sources are just giving them the line that the season’s done as a warning for them not to disclaim interest.

Posted by J.J. from Kansas on 12/14/12 at 05:05 PM ET

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At the end of this scheduled season, no matter what’s agreed upon, about a dozen teams, without having acted irresponsibly, find themselves in the same player dump Hell that Chicago did after winning the cup.

I don’t think the number will be a dozen.  Honestly, I don’t think it’ll be 5.

I could go on about this a lot, but if the GMs want this, the players want this, and each individual owner has the freedom to decide for himself whether or not he wants this on his club—on a one-time basis—I don’t see what Bettman’s malfunction on this issue is.

If we’re talking about a one-time buyout window like what we had in 2004, sure.  I think the issue being discussed is the long term buyout process, though.

Posted by HockeyinHD on 12/14/12 at 05:16 PM ET

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If we’re talking about a one-time buyout window like what we had in 2004, sure.  I think the issue being discussed is the long term buyout process, though.

Posted by HockeyinHD on 12/14/12 at 04:16 PM ET

No, he commented on this in his hissy-fit press conference last week. The union wanted one-time “compliance” buyouts as a “transition rule” and he refused, in no uncertain terms, because that was “money outside the system.”

To my knowledge, nobody has broached the topic of changing anything about long-term buyouts. For the PA to do so opens itself up for an attack on guaranteed contracts. For the league to do so could be construed by the PA as an attack on guaranteed contracts. Nobody’s got the stomach for that fight (thankfully, or the sport would be locked out for years).

Which leads me to question why so many hockey writers keep saying that the NHLPA disclaiming interest would kill the season.  I still don’t know how the NHL is that much more willing to chance lengthy and expensive court battles than the NBA was.

It’s not out of the question that they would. All the NHL’s practices are legal now. The day after a disclaimer, they’re, potentially, not, and any thing the league does could make it subject to that big fine. To guard against this, they “suspend business operations.” A business that’s not operating can’t be violating antitrust rules, I expect.

Of course, this is all mostly uncharted territory, so who knows.

Posted by larry on 12/14/12 at 05:33 PM ET

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We have entered into the final act for this season. If the players actually disclaim I believe the season will be lost. If the NHL loses any subsequent litigation I believe the league would fold and be reincorporated as a new entity. If this season is lost I believe it will take years of litigation to resolve and many of the current players will not see a future in hockey. Of the four major sports hockey is the most likely to go to litigation over decertification/disclaimer. It has the most strong willed owners of any of the sports, it also has the most revenue losing franchises in sports.

Posted by timbits on 12/14/12 at 05:45 PM ET

J.J. from Kansas's avatar

A business that’s not operating can’t be violating antitrust rules, I expect.

Timbits alludes to it, but they can’t simply suspend business operations while they still have about 700 guys with contracts to get paid.  You can lock out a union or you can fold as a business, but unless you’re doing one or the other of those things, you can’t refuse to pay your contracts.

It is entirely possible that the NHL blows itself up and tries to recreate itself as a single-entity league like MLS, but I don’t think that happens after losing litigation, considering the litigation that they’d be going through would specifically be addressing whether those owners are allowed to act as a single entity in the first place.

Although, in fairness, the amount of financial damage that losing several years worth of painful litigation would do might actually be able to create an argument that the sport is too weak to act as a competitor to other major leagues and needs the special protection of being given single entity status.

Posted by J.J. from Kansas on 12/14/12 at 06:01 PM ET

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The union wanted one-time “compliance” buyouts as a “transition rule” and he refused, in no uncertain terms, because that was “money outside the system.”

Well, that’s stupid of him then.  The only teams that would do that are the ones who are actually making money anyway.

I still don’t know how the NHL is that much more willing to chance lengthy and expensive court battles than the NBA was.

A lot more, because NBA teams have the same general business model as NHL teams, with the added bonus of having a sport that makes them a bunch of money (generally speaking) besides.

The NBA didn’t want to pass up a year of their TV revenue.  The NHL, who has this year guaranteed, doesn’t have to.  They get all the money they were supposed to get for having a season, and they don’t have to pay but a small portion of hockey-related costs.

That’s a great financial position from which to lean on the players.

All the NHL’s practices are legal now.

If the NHL was half as good at running a league as they are at lawyering a league, we’d be cheering for the best run sport in North America.

That… depresses the hell out of me, actually.

Posted by HockeyinHD on 12/14/12 at 06:09 PM ET

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Timbits alludes to it, but they can’t simply suspend business operations while they still have about 700 guys with contracts to get paid.  You can lock out a union or you can fold as a business, but unless you’re doing one or the other of those things, you can’t refuse to pay your contracts.

You can’t do that and say “I’m never gonna pay these guys.” But I’m pretty sure you can suspend business operations with a simple declaration that your business model’s unsustainable and a few filings. Now, eventually you’ll have to sell that to some court somewhere, who will, regardless of whether they accept it, want to know how exactly you intend to pay your debts, but that’s neither immediate or soon. Either way, you’re no longer in antitrust territory.

Seems irrelevant. Bettman’s chosen door #3: get the tactic declared illegal and, I guess, sue the union for damages by their threatening of this illegal tactic, if I’m understanding these lawsuits correctly.

Posted by larry on 12/14/12 at 07:24 PM ET

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Paul Kukla founded Kukla’s Korner in 2005 and the site has since become the must-read site on the ‘net for all the latest happenings around the NHL.

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