Wednesday, November 28, 2012

Decertification a strong possibility for NHLPA

Players still want to negotiate CBA, ready to
disband union if faced with no other choice

CHESTERFIELD, Mo. -- After last week's National Hockey League Players Association proposal was predictably shot down by the NHL and its owners, many were left to wonder what's next in the ongoing saga of the labor lockout.

The next move, which could be initiated by the players, would be a significant one.

Some may be familiar with the term "decertification," since it has come up in labor disputes with the NFL and NBA within the last year or so. And now it is a viable option for the NHL's players as well.

Decertification, best described as dissolving of a union and making its players individually responsible for themselves, is a last-resort option for the NHLPA. But after the players were turned down in what they described as "a proposal moving in (the league's) direction," it may be the only way to go in getting the league, A) back to the bargaining table and B) taking the players' stance seriously.

"Probably a nine," Blues veteran Andy McDonald said when asked on a scale of 1-10 if decertification is a serious and viable option. "I don't know what time-frame it is, but I think it's going to be discussed internally with the union and all the players.

"We'll quickly go and file and start the process. Hopefully you can still negotiate while that's still going on and it doesn't come to that, but the guys are frustrated and they want to get back on the ice."

Added fellow veteran Barret Jackman: "If that's the avenue we have to take, we're going to do everything in our power to get back on the ice. If we take it to the courts that possibly ends the lockout, then that's what we have to do. We're hoping it doesn't have to come to that but if it does, that's a serious option for us. It's a 9.5 out of 10 we'll go down that road.

"We're getting all the information about decertification, all the pros and cons."

If the process goes according to the way it did for the NFL and NBA, it might be the only viable means to end the lockout that's in its 74th day today, a lockout that also wiped out the entire 2004-05 season and caused widespread damage to the game for years to come.

In 2011, the NFL and the National Football League Players Association were locked in a contract dispute when the union turned down a proposal by the owners. The union soon voted to decertify. When the lockout became official on March 12, 2011, players like Drew Brees, Peyton Manning and Tom Brady filed antitrust lawsuits.

A month later, a judge ruled in favor of the players, but an appeals court overturned that decision in July, making the lockout legal. However, talks resumed, gained traction and the NFL reached a new deal with the union in late July.

In November of 2011, negotiations between the NBA and the National Basketball Players Association hit a stalemate as well. The players' union continued down the road that led to decertification. After roughly five months of talks, the breaking of the union and forthcoming lawsuits, it led to heavy and serious bargaining that ultimately led to an agreement and got the NBA season rolling on Dec. 25, 2011.

With decertification, it's a way of making the NHL lockout illegal with no union. The league would be negotiating under antitrust laws rather than common labor law. Players are given the right to file individual lawsuits if they are ready and able to fulfill their contracts.

Blues players who spoke of the issue on Tuesday, reiterated that they'd rather negotiate and get a new Collective-Bargaining Agreement done in good faith, which is why decertification wasn't an option when the lockout began. But after the NHLPA proposed a five-year deal that moved towards the league's plan and was rejected after the PA asked for $393 million "make-whole" dollars in players' current contracts, there might be no other choice.

"Unfortunately, this has now gone the script of the NBA and the NFL," veteran Jamie Langenbrunner said. "They kind of (have) done all the proposals and they've kind of gone by the NBA playbook.

"It seems like we're having to follow suit. We tried to cut a deal, we tried to address their needs and didn't want to push it to this step, but sometimes your hand is forced. If we finally decide to do that, it wasn't from a lack of effort, it wasn't our first move to come out firing like that. We wanted to try and get a deal done and this is more of a last resort type of a thing. I'm sure that process will either happen or not in the very near future."

Langenbrunner was asked if decertification would force the league back to the table.

"On the outside looking in, you would think a lot of these things that we have done forced things back to the table and forced an agreement," he said. "But at every turn, we seem to address their needs that they feel they're lacking. For whatever reason, not once have they wanted to reciprocate that. That's been the most frustrating thing for the players. We're the ones that have bent over at each spot. I think you can only be pushed so far before you're going to start fighting back. Unfortunately, this may be one of those steps that it has to go."

The NHLPA was asking for $393 million over the five-year term, but the league was only willing to go to $211 million, with a difference being $182 million. Two days later, the league canceled games through Dec. 14, also wiping out the All-Star game in Columbus.

"After last Wednesday, I think it was deflating for a lot of guys there in New York," said McDonald, who was one of the NHLPA members present last week. "We had a group there that was pushing Don (Fehr, the PA's Executive Director) to put forth a proposal that was in the league's language. There was an internal debate whether we should do that ... are we still giving back too much. A lot of guys felt that the league might move on some of these other issues if we at least go off of their framework.

"They quickly reviewed our proposal (and) there was not a lot reciprocated on their end. It was real disappointing for the guys that were there because I thought we'd get negotiations going. Now it seems they definitely just want to wait. It's not to say they won't come back off that proposal down the road, but for right now, I don't see what else the players can put forth that would get a deal done. Now there seems to be a lot of guys that want to decertify because everyone wants to get back on the ice. We don't know what other options we have."

One option the two sides agreed upon is to get federal mediators involved. It's an opportunity for a third party to listen, gain perspective and offer fresh ideas to potentially help in the negotiating process. It's a move that was present in 2004-05 but did not stop a season being lost. Those meetings took place in Mid-February of 2005, trying a last-ditch effort to save the season. However, any ideas at this point to speed up the process is a welcomed tool since it is late November.

"I hope it's a third party ... someone who gives a different opinion objectively," McDonald said. "Maybe it sparks an idea, but at this point, that person really has no power.

"We need more of an arbitrator in there than a mediator. I don't think that's going to happen, but we definitely have to explore all options. If a mediator helps just a little bit, then it will all be well worth it."

Added Jackman: "If a mediator can come in there and put a second thought into one side or the other's head, it's worth a shot right now. We don't want to lose a season without exhausting every avenue."

Which is why McDonald is still among those that is sticking to his guns -- there will be hockey this season and that the $182 million gap can be compromised.

"The sides are just too close to let the season go," McDonald said. "(NHL commissioner) Gary Bettman came out and said the league's losing (up to) $20 million a day and he canceled two weeks of hockey ... the math doesn't seem to add up. Losing a year over this would be so detrimental to the game. There's already been, in my opinion, a severe backlash by the fans really being disappointed with what's happened and deservingly so. I think both sides will realize we're too close together to throw the year away. We need to find a deal that works."

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