"Decertification" become a buzzword for the NHLNHLPA labor battle, and theres little wonder why: A move to bust up the players union in the NBA directly preceded an agreement during its lockout last year.
But decertification could have uncertain consequences.
The NBA Players Association decertified quickly, filed two lawsuits, and the league settled within a couple of weeks. The NFL players had to wait four months for a settlement after decertifying, but they opted for it at the beginning of negotiations rather than toward the tail end.
A move by the NHLPA to decertify could drop the league into turmoil. Stripping the NHL of its anti-trust immunity would wipe out the entry draft, blow up all the rules governing free agency, arbitration and the salary cap and create a Wild West atmosphere where players could go to the highest bidder. Understandably its an option the NHL claims would wipe out the rest of this season while throwing the league into chaos, but its also the kind of leverage point the NHLPA hasnt enjoyed during these one-sided negotiations.
The mere threat of NHL control being wrested from the 30 owners and put into the court rooms is a viable weapon in negotiations. There is much more bite to a potential union decertification than to what's gone on this week between federal mediators and the two sides.
Bruins players polled after their Monday morning voluntary skate indicated that union decertification has definitely been mentioned in discussion, but all of them were waiting to hear it explained to them more fully. Sounds like grounds for an NHLPA conference call.
Im not really educated enough on decertification to make a comment either way, said Shawn Thornton. Its an option we are aware of, but nobody has really been educated on it.
But if the specter of decertification leads the NHL to back off some of their player contract right demands or pushes them to raise the make-whole number, then its something the players will view as a positive.
"We want to play," Thornton said. "But there hasnt been one bone thrown our way by the owners to where guys would say if it went to a vote right now we could live with it. There are things that have to be addressed. If there were a couple of bones thrown in there then thered be enough moderates to voice their opinions to Don Fehr. But it hasnt been that way at all. We keep giving and they keep saying Thanks . . . what else have you guys got? Until that changes, nothing is going to change."
In essence the players are looking at potential decertification as one of the only possible ways to bring the lockout conflict to an end. That end game is what intrigues out-of-work players, or those in Europe.
"Ive tried to read a couple of articles on it and talked with my sister, who is a lawyer, about it," Gregory Campbell said. "It seems like something like its an awfully serious decision. I dont know what the ramifications would be if we went down that road. I dont know if a lot people understand what would happen if we decertified. I think everybody just wants a solution to this.
"In searching the other lockouts it looks like it might be an option. It may come to that. But I dont understand enough about it to make a statement of whether we should do it or not."
Here are the basics of decertification:
First the NHLPA would sign a petition to decertify. If at least 30 percent of the members sign, the process begins.
The petition goes to the National Labor Relations Board (NLRB).
If 30 to 49 percent of the membership signed the petition, the board sets a decertification election date, usually about 60 days after approving the player membership petition.
If 50 percent or more signed, the employer may immediately withdraw recognition of the union. But the NHL would be unlikely to do so because it would allow the players to immediately begin filing antitrust lawsuits against them.
Once the labor relations board sets an election date, the union holds a decertification vote on that date. If a majority votes in favor, the union is decertified and its status changes to a trade association.
The trade association can file antitrust lawsuits against the employer and sue for damages on wages lost with triple the damages if the NHL is found to be guilty of bad bargaining practices.
It would likely take at least two months for the NHL Players Association to decertify, so the filing of antitrust lawsuits couldnt begin until the beginning of February. Even if the NHL buckled immediately, that would probably be too late to save the season. But even the submission of a qualifying petition could pose enough of a threat to push the NHL into action. Both sides can continue to negotiate while the decertification process is taking place.
Thats essentially what happened with the NBA last year, and what might be the NHLPA's only weapon to get the league back to the bargaining table.