Monday, September 1st, 2014

The Decertification Dance

15

As someone who has reached the conclusion that the NHL has to change fundamentally, I am pleased that the NHLPA is taking a step towards dissolving the Union even though we all suspect the real intent behind the move. I still think the most likely outcome when the dust settles is a new CBA I am certain to dislike, a truncated joke of a season, all of the league’s problems exacerbated by a disastrous lockout, and the same bunch of clowns running the show.

I don’t think the pre-emptive lawsuit launched by the NHL will produce anything that matters. I agree with Jonathan Willis that the NHLPA has a better case than the NBAPA. There are also interesting jurisdictional issues at play here, so I don’t think the case is quite the slamdunk the league pretends.

Still, I think the league is likely to prevail because I think that the majority of players will be voting to decertify because they believe it is the next logical step in the negotiating process. The NHL may have difficulty demonstrating it, but in my view truth is on their side. The players don’t see this vote as stepping off the cliff. We don’t hear players claiming they will be better off without the Union or extolling the benefits of a free market. To most of them this is the same next step that was taken by the NFLPA and the NBAPA.

The NHL may have a winning hand in court at this point, but it will almost certainly be a meaningless win. The tale will be told in the next couple of weeks. If the decertification is a ploy, a deal will be struck and Gary Bettman will declare that hockey has been saved for once and for all. If the decertification is real, events will prove it so, and the league will face antitrust suits they won’t be able to dismiss as ploys.

In the meantime it is amusing to watch the upside down world of labour relations in sports entertainment. In the real world, if a labour union decertified in the middle of a lockout, the employers would cheer, declare victory, throw open their doors and invite everyone back into the fold. The NHL filed a lawsuit and threatened to fire every employee if they dare decide collective bargaining is hurting instead of helping them. Crazy. I also really enjoyed the NHL effort to paint the NHL-NHLPA historical relationship as something other than toxic.

I’d write the whole dance off as an amusing waste of time except… Donald Fehr. What on earth is he doing? He can see where the court case is going and even if he thinks he can win it, any victory is several weeks away and by then the season is gone. Why is he blindly following the NBAPA into nowhere? And doing it so late? This is the brilliant Donald Fehr?

And what’s with the vote on the disclaimer of interest? It isn’t necessary and to me it appears to hurt the court case. The vote drags out the process and it makes the decertification move look more like a negotiating ploy.

What does Donald Fehr have up his sleeve as the decertification dance winds down? I don’t know, but I do know that the players may be voting as a negotiating tactic, but the vote isn’t counted as a tactic. It is counted as a vote to dissolve the Union as a bargaining entity. It cuts the players out of any informal talks and it gives Donald Fehr a mandate to blow up the league if he thinks real decertification is in the best interest of the players.

Gary Bettman might like his chances in court, but I wonder if his eye is on the right ball. I’d be worried about the power the players are about to give to Don Fehr. How will Gary feel about (the impossible to deal with and entirely unpredictable) Donald Fehr having the power to kill the season and turn Gary’s league on its head?

Heh, heh.

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Comments

15 Responses to “The Decertification Dance”
  1. beingbobbyorr says:

    It is counted as a vote to dissolve the Union as a bargaining entity

    I’m still hoping that someday somebody will explain in a Law-for-Dummies kind of way the difference between decertification vs. other kinds of “vote to ______” actions the players can take that effectively shutter the NHLPA offices, disconect the phones, etc., the later of which I admit I’ve been naively assuming was what decertification amounted to . . . . and thus perplexed at the notion of a court ‘rejecting’ decertification and penalizing an organization (or NHLPA chief = Fehr) that didn’t exist (or had been laid-off and was no longer collecting a checque).

  2. Drewball says:

    Since negotiations broke off I have been wondering the same thing, what does Don have up his sleeve? Reading the NHL lawsuit and all of the legal analysis I keep coming back to one thing. It is well known that Don Fehr doesn’t like salary caps and likes as few restrictions on player’s salaries and mobility as possible. He knew that the NHL was using the same law firm as the NBA. He knew that the lawsuits would be nearly identical. Could it be that the proposition by the league to void all contracts is what he wants? The NHLPA needs leverage, and Fehr wants as free a market as possible. Who does a court order breaking all NHL SPC’s and eliminating all claims on player rights by NHL teams give more leverage to? W

    • Drewball says:

      With total free agency, Toronto could buy the Stanley cup they want. The small market teams down south would die like everyone but the league knows needs to happen. The league as it is currently structured would/could no longer exist. It would hurt some players, but I don’t think it would hurt them as bad as some owners and the league as a whole. Maybe Don Fehr totally blows it up, only to rebuild it with a new union and CBA built on the ashes of the old NHL and Gary Bettman’s proverbial grave. To me the league asking to void all contracts just seems like a mistake. A dangerous opening for a very ballsy single minded person looking to prove a point could take advantage of.

  3. Rajeev says:

    I still think the most likely outcome when the dust settles is a new CBA I am certain to dislike, a truncated joke of a season, all of the league’s problems exacerbated by a disastrous lockout, and the same bunch of clowns running the show.

    Yup.

    It is counted as a vote to dissolve the Union as a bargaining entity. It cuts the players out of any informal talks and it gives Donald Fehr a mandate to blow up the league if he thinks real decertification is in the best interest of the players.

    Interesting. That’s an tempting hook to hang one’s hope on, but I’m skeptical. Fehr’s past history seems to be one of acting on the wishes of his employers and not necessarily dictating their actions. I still think decertifying – not disclaiming – one year ago was the players’ best move. If Fehr’s doing what you suggest he’s doing, I’m not sure why he would have gone to 50/50 so quickly. That said, I hope you’re right.

    And what’s with the vote on the disclaimer of interest?

    I’m not a labor lawyer – I actually declined an opportunity to work at Proskauer back in the day – but I think this may have been a mistake too. The league sort of awkwardly tried to argue that this is a justiciable case or controversy, and the NHLPA’s disclaimer vote seems to support the league’s argument. (Although courts say they look at the status of the parties at the time of the filing of the complaint to determine justiciability, I would have to believe a court would almost certainly look at a post-filing disclaimer vote as giving credence to the league’s allegations, and it seems to me there is a justiciable controversy here.).

    • Tom says:

      That’s an tempting hook to hang one’s hope on, but I’m skeptical.

      Me, too. But I keep coming back to Fehr and his decision to take this job. Surely it was not merely to play this part in a disastrous lockout that will produce a terrible CBA for the players and the fans.

      Fehr’s past history seems to be one of acting on the wishes of his employers and not necessarily dictating their actions.

      Yes, but he has managed to produce a situation where players are telling him they want to dissolve the Union. We might all believe they really do not mean it, but a vote is a vote. Nobody will know how many players really mean it and how many do not.

      It may yet be a negotiating ploy, but it is not a bad one. If I was Gary Bettman I would be very worried about Donald Fehr. It is one thing to say the players would never blow it up. It is another to say Donald Fehr will not do it. Does he care about the NHL? Does he care whether the season goes down? He’s already announced he’s not keeping this job. What’s his skin in this game? He doesn’t have any. If he does have a stake, it is his own personal legacy.

      And I can imagine him thinking that his legacy is to lead the sports entertainment industry into a very different era. Marvin Miller and Donald Fehr as bookends to the Union movement.

      I still think decertifying – not disclaiming – one year ago was the players’ best move. If Fehr’s doing what you suggest he’s doing, I’m not sure why he would have gone to 50/50 so quickly. That said, I hope you’re right.

      Perhaps so, but as I said before, I don’t think a year ago a majority of players would have voted to decertify.

      • Rajeev says:

        But I keep coming back to Fehr and his decision to take this job…. What’s his skin in this game? He doesn’t have any. If he does have a stake, it is his own personal legacy.

        I don’t know Fehr beyond what he’s done and said during this negotiation, and I could be wrong about this, but I sort of doubt his perception of his legacy is playing much of a role. I think a simpler explanation is that he simply loves representing union members and loves collective bargaining – it’s what he’s always done, it’s what he knows how to do, and it’s what he does best – and it beats sitting around the house all day reading cnn.com and playing sudoko on his iphone while he waits for his kids to ask him to come over and babysit (Hi, Dad!). If he was concerned about his legacy, offering the owners a 50/50 split in October was a pretty silly way to go about it. Plus, he’s got a fiduciary duty to put the players’ interests ahead of his own, and I tend to think he’s the type of lawyer that takes something like that pretty seriously.

        What an enormous, impressive legacy it would be though if he could remove the cap from the NHL though. And get rid of some teams in the process.

        • Tom says:

          I don’t know Fehr beyond what he’s done and said during this negotiation, and I could be wrong about this, but I sort of doubt his perception of his legacy is playing much of a role. I think a simpler explanation is that he simply loves representing union members and loves collective bargaining – it’s what he’s always done, it’s what he knows how to do, and it’s what he does best – and it beats sitting around the house all day reading cnn.com and playing sudoko on his iphone while he waits for his kids to ask him to come over and babysit

          Could be. But if this was the case, why retire from his job in baseball? If he regretted that retirement, I can see him coming back, but why make it clear the return to work was temporary? Why not just take the NHLPA job?

          I tend to favour the simplest explanation, too, but it doesn’t add up very well.

  4. snafu says:

    Just a couple of thoughts.

    1. Is it possible that Fehr is trying to educate his constituency on what exactly their choices are– union vs free market? I know he has expressed his ideology recently, to paraphrase, ‘players should have the right to choose where they will play and how much they will accept in pay.’

    It’s interesting that unions arose from an alleged free market system because employers (pro sports leagues) had imposed all sorts of labor atrocities on players historically. Where were the antitrust laws in those days? Fast forward to today, and Fehr has led the players through all the steps. At the crux of the issue [and I will point out once again that the league put a heck of a lot more stake in the player movement issues, a.k.a, contracting rights than anyone wanted to believe they would], is what they will paid (or not paid vs market demand) and their ability to choose where they will play.

    They have looked at linkage, agreed that their share would come down, but feel cheated that the 57% they ‘earned’ as promised during the 54-57% phase would be wiped out. The league wants to get to 50% right away. There is only one way for that happen and that’s for players to take not only a reduction in pay, but an immediate clawback. The “Make Whole” malarkey attempted to address a bit of that, but then we got to the transition— teams have to get to new cap levels within a couple of years and they’re just not going to be able to do it without buying some players out. Of course, the league wants that to come out of escrow, and obviously the players feel that they’re again giving to their favorite charity, a.k.a., local billionaire.

    You all know that, but has Fehr been demonstrating to players that every single time they step up to the plate when the NHL is pitching, and forever hereafter, that they will give back more and more in terms of money and contracting rights? I think they believed they were facing reasonable men who would/could compromise to get what they NEED vs what they WANT.

    It really is up to them to consider in which world they want to live. The lockout is a beautiful tool for owners. Every single time they use it, they will stand to get more money ultimately, and the players choice is always 0% or X%, where X is always higher than 0. Has Fehr managed to demonstrate to them that there isn’t that much a union can bring them that they cannot negotiate in individual contracts in the modern age where antitrust laws are alive and well?

    What does a union offer players today?

    I’ll do #2 as a separate post.

  5. snafu says:

    2. Contracts

    There are two ways to look at the contracts issue, but one requires that the players actually want to get rid of unionship once and for all.

    The first is the one that receives all the attention- filing antitrust claims, which if upheld and eventually having the player prevail, he’d receive treble damages for the portion that was withheld. I think everyone looks at the total figure and thinks, oh, Crosby will get $300 MM since he didn’t get $100 MM. If the league were to disband, there’s no way Crosby gets most of that money, and if the league indeed gets back to business at some point (sooner than later), Crosby will get paid per the existing contractual terms and presumably would drop any antitrust claims. He not ahead, and in fact, depending on how much time is missed, will be behind. Even if the antitrust portion somehow continued while the league went back to business, inclusive of Crosby, wouldn’t his treble-damages be for the missed portion alone?

    The second way to look at it would be for the players’ representatives (no union, so individual lawyers) who would agree with the NHL that all contracts should be voided. This would mean that the players had no interest in unionizing again, had given up hope on the proposed CBA or any future CBA, and all became free agents on that day. At that instant, the NHL could no longer lock anyone out, nor could they discuss with each other what they would do about players’ salaries and conditions. There would be no more collective process, and thus no labor laws to cite.

    Using Crosby as our example, would he make more money under this scenario than any long legal antitrust process? Would he make more money as an utter free agent in a non-union NHL than what any CBA settlement at this point could offer?

    Fehr may already know the answers, but he needs players to BELIEVE that’s what will happen, and to understand where they would fit into things (they’re not all Crosbies). Do they trade the security for the freedom? My own impression is if you’re 1 of the 700-800 people in the world with a very unique skill, you should choose freedom. Rank and file assembly or factory workers that can be replaced daily do not have that luxury, and will always choose security.

    This fan would love to have it all blow up. I’m tired of CBAs and lockouts and the asshats that run the NHL. I’m tired of money being thrown away, at the players’ expense, to prop up teams whose market has little interest in the sport.

    I close once again by asking what it is exactly that unions offer to elite, unique athletes, and if that’s worth the price. The fact that the leagues would fight so very hard to maintain unions tells us everything.

    • Tom says:

      Fehr may already know the answers, but he needs players to BELIEVE that’s what will happen, and to understand where they would fit into things (they’re not all Crosbies). Do they trade the security for the freedom?

      I don’t think anyone really knows how things would work out for sure. I agree with almost everything you wrote except this. Fehr does not need the players to believe anything once they vote to decertify. He would need players to believe in the free market if they were really choosing to step off the cliff. Right now all he needs for them to believe is that their choice is to cave or decertify, and that decertification will give Fehr leverage to get a better deal.

      They may be doing it for all the wrong reasons but they are letting Fehr make the choice for them.

  6. snafu says:

    Let me throw this out here while we wait for the PA vote.

    The NBPA head was quoted recently as saying, similarly to what Tom has voiced here, that unions may offer a greater utility to owners than players.

    The question then is — what exactly does the union provide to players, worthy of them taking massive reductions from free market pay/conditions, that they couldn’t negotiate into a contract (with the help of a very good agent)? All the grievances that come up are over conditions that a CBA actually imposes, and much of these are along the lines of free agency restrictions and other stipulations that are collectively imposed but which may not really apply to everyone (hence the gray areas).

    You can negotiate benefits into an individual contract.

    You can negotiate severance into an individual contract.

    You can negotiate travel and other requirements (relocation, vacation, stock options).

    You can negotiate bonuses w/o limits; NMC and NTC clauses; equipment; guaranteed contracts.

    In the end, teams have to have 22-25 signed players, and if they wish to be competitive, they’ll try to sign the best players they can find. A CBA seems to help the guys on the fringes more than it does the mainstream and certainly elite players.

    • Tom says:

      What all sports unions did was eliminate the reserve clause and create free agency. That’s Marvin Miller’s real legacy. After that, they have done little besides negotiate restrictions to that free agency and directly or indirectly reduce the player’s share of the pie.

      Whether those restrictionsw are worth the supposed tradeoff – competitve balance and more jobs and job security – is very much an open question.

  7. Roberto says:

    Done deal.

    http://www.tsn.ca/nhl/story/?id=412844

    Tom, you’ve implied that if the players were going to cave, then they should have caved early; I think Fehr has inflicted enough pain on the owners to deter similar bullying tactics when the next deal needs to be agreed upon.

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  1. [...] CANUCKS CORNER: Tom Benjamin weighs in on the NHLPA decertification dance, suggesting the NHLPA may have a good case, but ultimately expecting the NHL to achieve a meaningless win in court. He also wonders what NHLPA director Donald Fehr has up his sleeve. [...]



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