NHL Players Move Lockout Toward Courts in Vote, ESPN Says

National Hockey League players moved a three-month-old lockout toward the courtroom by clearing the way for their union to dissolve, ESPN reported.

The NHL Players’ Association voted to give its executive board the power to decertify, or “disclaim interest” in representing the rank and file in collective bargaining, the Walt Disney Co. unit said on its website citing multiple people it didn’t identify.

NHLPA spokesman Jonathan Weatherdon didn’t immediately respond to a voice message and e-mail seeking comment on the report. John Dellapina, an NHL spokesman, declined in an e-mail to comment, saying it was a union matter.

The board must decide whether to disband the union, a move that would allow players to file antitrust lawsuits seeking to have the lockout ruled illegal and recoup financial losses.

A similar decertification move was used by the National Football League players union during their five-month lockout last year. It is a negotiating tactic that applies almost exclusively to sports labor disagreements, according to Paul Haagen, a professor of sports and contract law at the Duke University School of Law in Durham, North Carolina.

“This is the only industry in which management absolutely needs to have labor collectively represented to avoid antitrust,” Haagen said in a telephone interview. “And when you can’t effectively bargain in labor, your only card is antitrust.”

The NHL announced yesterday that it had canceled all games through Jan. 15, with 51 percent of the season wiped out, including All-Star Game in Columbus, Ohio, on Jan. 27 and the New Year’s Day outdoor Winter Classic game at Michigan Stadium.

NHL Allegations

The league, in anticipation of today’s union vote, is seeking a federal court order declaring the lockout legal. It also filed an unfair labor complaint with the National Labor Relations Board last week.

The lawsuit alleges that that the disclaimer of interest is an “unlawful subversion of the collective bargaining process and conduct that constitutes bad-faith bargaining,” the league said last week in a statement.

Haagen described the league’s moves as a “delay tactic.”

“Where we are is a coming-together of two separate lines,” he said. “One is whether this is an unfair bargaining practice in a situation in which the union fully intends to be the collective bargaining agent, and the second is the right of labor to decide whether or not to be represented.”

Revenue Split

There are no bargaining sessions scheduled between the two sides, which are arguing over how to split revenue that grew to a record $3.3 billion last season, up 50 percent from the $2.2 bill in 2003-04, the final year before the last lockout.

Other issues at the negotiating table include salary arbitration and the length of unrestricted free agency.

Under the previous agreement, settled after the league canceled the 2004-05 season, players received 57 percent, or $1.9 billion, of sales. The remaining $1.4 billion, or 43 percent, was shared among the league’s 30 team owners. The league offered a 50-50 split in its latest contract proposal.

NHL players have been locked out since Sept. 16, the day after the old contract expired. The league has said a 48-game schedule, similar to the one that ended the 1994-95 lockout in mid-January, would now be required to avoid losing the entire season.

It is unclear the effect that today’s move has on the outlook of the overall negotiations, Haagen said, because decertification is such a rare bargaining tactic that the laws aren’t thorough.

Should the union elect to disclaim interest, antitrust liability would eventually apply to the league, he said, but it was unclear exactly when that would occur.

“Short term, and I think we’re talking maybe a month, it probably doesn’t have much of an effect other than making the negotiations more difficult,” Haagen said.

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