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The Decertification Word Is Being Tossed Around

from James Mirtle of the Globe and Mail,

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.

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Comments

starsfan26's avatar

Go enjoy Thanksgiving Paul, these idiots (the NHL and NHLPA) will still be at it when you get back! grin

Posted by starsfan26 on 11/21/12 at 11:55 PM ET

NIVO's avatar

Go Lions, we are gonna need all the help we can get. Atleast we have football for the holiday.

Posted by NIVO from underpants gnome village on 11/22/12 at 01:01 AM ET

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“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 NBAPA, 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.

This quote from Mirtle’s article pretty much crystallizes what I have been thinking for awhile now. Much of what these sports unions do now is protect the league’s antitrust exemption and restrict the rights of incoming players.

Posted by YouppiKiYay on 11/22/12 at 02:09 AM ET

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This quote from Mirtle’s article pretty much crystallizes what I have been thinking for awhile now. Much of what these sports unions do now is protect the league’s antitrust exemption and restrict the rights of incoming players.

You could expand that to include unions in general, really.  That’s why public-sector unionized workers outnumber private sector ones, why the unionized rate is 5 or 6 times greater in the public sector than the private sector, and why private-sector union participation has declined to consistently.

That aside, I think de-certification is risky business in this situation.  IMO all de-certifying does is open the door (wider, anyway) for the NHL to simply implement it’s ‘best and final’ offer as the rules of the league.  The thing Mirtle misses (and most writers, sadly) is that the NHL isn’t the NBA or NFL.  Those leagues had significant financial reasons to continue to play.  The NHL has much less of a financial reason to play.

I think the NHLPA’s best course was to just take 50-50 two months ago.  If they aren’t going to do that and they appear willing to lose 1.6 to 1.8 B in order to try and get 200 mil, it’s really hard to guess what other spectacularly stupid things they might do moving forward.

Posted by HockeyinHD on 11/22/12 at 05:51 AM ET

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You could expand that to include unions in general, really.

I’m less sure about that. I really don’t know how much you can extrapolate from pro sports unions to broader workers unions. At least some, if not most, of the deunionization in the private sector is driven by the downward pressure on wages brought about by outsourcing. Pro sports jobs can’t be outsourced.

IMO all de-certifying does is open the door (wider, anyway) for the NHL to simply implement it’s ‘best and final’ offer as the rules of the league.

But the union would not simply decertify. They would also sue to end the NHL’s antitrust exemption. If successful, the 30 teams would not be able to implement anything as a cartel. They would go from 30 franchises of a single league to 30 competing clubs.

Not that it would likely come to that, but the threat of taking the outcome out of their hands would terrify the league.

Posted by YouppiKiYay on 11/22/12 at 04:24 PM ET

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At least some, if not most, of the deunionization in the private sector is driven by the downward pressure on wages brought about by outsourcing.

It’s brought on by the frequency with which unionized shops go out of business because they lose their ability to be price competitive.

The basic union principle, and it applies to both sport and non-sport unions, is to never give away anything, under any circumstances.  That works in the public sector because public sector ‘businesses’ don’t ever have to worry about profit and loss.  They just raise taxes.  In the private sector when labor costs inflate at rates far surpassing those of anyone elses… boom goes the dynamite.

But the union would not simply decertify. They would also sue to end the NHL’s antitrust exemption. If successful, the 30 teams would not be able to implement anything as a cartel.

Sure they would.  They’d simply re-organize the sport as a franchisee operation a la McDonalds, be perfectly able to set standard policies and practices under the banner of the franchise franchiser relationship, and then the NHLPA would be effectively obliterated as a unit.

Heck the NHL (and any pro sport really) is already 70% of the way there given how much patented branding they have at every step of the way.

Posted by HockeyinHD on 11/23/12 at 08:39 AM ET

J.J. from Kansas's avatar

A franchise-franchisee relationship doesn’t protect against antitrust legislation. McDonalds gets away with setting standard policies and practices for their outfits because McDonalds is not a monopoly.  Even then, there is significant room for differentiation in employer-employee relationships between corporate-owned and franchise-owned McDonalds stores.

What’s even better is that McDonalds (as well as almost every other franchise chain) has a distinct policy of non-competition BECAUSE they’re not a monopoly. McDonalds awards territories to franchisees and keeps them out of each other’s turfs. They don’t compete for customers and they don’t compete for employees.

What I think you think you’re talking about is the NHL re-organizing as a single entity organization where they argue that they are a collective of 30 teams competing in North America for entertainment spending against primarily other sports leagues and other types of live entertainment.

It’s a possibility that they try that. MLS has been organized like this from the beginning (and they get away with it because of the unique nature of soccer in America and because they’ve never been challenged in court).  The NFL tried using that argument in the American Needle case and were told by the Supreme Court that the implications of treating them as a single entity were far too dire to allow the NFL to be in control of such a powerful monopoly.

So then the question becomes whether the NHL is more like the NFL or MLS when considering whether they’d get away with this.  There are certainly snarky things to be said about hockey’s apparently waning popularity and soccer’s waxing and about how it may not be long before they switch, but the reality is that while the NFL’s revenues make the NHL’s look tiny by comparison, MLS’ finances are barely a spot on the NHL’s radar even.

While decertification may not work thanks to the NFLPA’s attempt at doing that (and being rejected by the 8th circuit court), there are also significant differences between what the NFLPA did (attempted decertification BEFORE a lockout to attempt to prevent it and being told that what they did was a negotiating tactic) and what the NHLPA would be doing by decertifying.

It would be an interesting (and *#$%@& annoying) legal process, but I severely doubt that the end result would be the NHL being allowed to operate as a single entity where they have unilateral power to impose their will so freely on the hockey labor market.  They might get more power than they have now.  There’s also the very real possibility that the court proceedings end up laying bare all of the financial information the NHL has refused to release.

Posted by J.J. from Kansas on 11/23/12 at 10:55 AM 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.

From breaking news to in-depth stories around the league, KK Hockey is updated with fresh stories all day long and will bring you the latest news as quickly as possible.

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