A Look at the Logic and the Not so Logical Legal Maneuvers Between the NHL and the NHL PA

It was the Bettman of Times, It was the Worst of Times

Doug Abrams

December 18, 2012

It's a tale of negotiations gone wrong. Imagine two blood enemies embroiled in a negotiation over how a $3.3 billion industry would split funds between owners and players. Fehr and Bettman detest each other. Fehr is a true believer in union causes. He believes all owners are exploiting their players and that the players are the product that drives the owners' success. Bettman has no love of owners and no hatred of unions. He is purely and simply a detached, non-ideological negotiator doing the bidding of his employers. Bettman also has the propensity to project condescension in his body language and his cadence.

I am convinced Bettman regards Fehr as an amateur. I suspect Fehr today is not the brilliant tactician he was earlier in his career or it may simply be that Fehr has very limited options. There may be a lack of consensus by the players as to how aggressively to pursue their legal remedies. The Union should have filed a "disclaimer of interest" months ago. The negotiations were going nowhere. The NHLPA and Fehr lacked the leverage to make any deal other than a variation of the deal being offered by the NHL owners.

By disclaiming interest the NHLPA dissolves and owners are left to negotiate player by player. If the disclaimer of interest is valid, it would follow that the Salary Cap ends. The Salary floor ends. In all likelihood the draft ends. It's a pure caveat emptor, free market system which I am convinced ultimately would destroy the NHL. All sports leagues depend on a players' union to enter into a CBA in order to manage costs and to control the expenses of maintaining teams. The NHLPA, however, would cease to exist. The players would also lose their guaranteed contracts, or at least only the superstars would have the negotiating power to have guaranteede contracts. If one loves chaos, you will absolutely fall in love with a free for all, non-CBA NHL. Enjoy it will you can because odds are the NHL will cease to exist in a three to five year non-CBA world.

The NHL's attorneys were well aware of the disclaimer of interest/decertification strategy and made a pre-emptive filing in a favorable court. They sought a declaratory judgment. The declaratory judgment seeks to have the lockout declared legal; and if the Court were to rule that the disclaimer of interest is valid, that all contracts would be null and void.

Fehr has allowed himself to be boxed into a corner. Federal judges, as anybody who has practiced law in the Federal Courts knows, are serious people. They are not people who tend to be bemused at their Courts becoming a circus. I imagine that the Federal judge will first require Don Fehr to resign and to cease assisting his former clients. Fehr may well have a conflict of interest once a disclaimer of interest is filed. I would think there is a serious chance the Federal judge will rule that if indeed the NHLPA intends to disclaim interest the players cannot reform a union for a period of two years, which would be devastating. I doubt any of the players have ever sat in a Federal Court observing litigation.

The ultimate hope of the litigation according to commentators is that a settlement can be reached. The history of the NFL and the NBA was that after decertification (which is where the players vote to cease being represented by the union), there was a resolution. My take is that Bettman has no sense of mercy and has no commitment to NHL hockey as an institution. He much prefers to vanquish opponents and leave them withering in the dust. As such, Bettman is likely to be pushing the owners toward a very, very aggressive stance.

The players, foolishly, were extolling how unified they were and are and how incredibly wonder Fehr was. As one can see from the NHL's complaint, the attorneys for the NHL used those innumerable claims of unity to show that the so-called disclaimer of interest was merely an effort to add to their own negotiating leverage. If the Judge determines the disclaimer of interest is a façade, then the Court could easily rule that the NHL has acted in good faith and is not subject to Anti-Trust damages.

By waiting so long to file a disclaimer of interest, it is much less likely the Court will rule for the players. On the other hand, I could also see the Court saying all presently existing contracts are valid and enforceable, but that future contracts are free market, caveat emptor. The owners and players are setting themselves up for a doomsday scenario.

One reason the Court may well rule that the disclaimer of interest is not valid is that Fehr himself recently held a press conference saying how close the NHL and the NHLPA were to reaching an agreement. What needs to happen now is that the NHLPA needs to tender an offer so near the last NHL offer that the NHL owners feel compelled to either say yes or meet them halfway. The damage to the NHL is at risk of undermining the NHL as a league and as a cultural institution. Once entertainment industries hit the point of no-return, their relevance fades. See as an example the Drive in Movie industry.

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