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Insider

Clarifying the disclaimer

12/17/2012

There is growing concern among some inside hockey that at this point, the sport's fans have checked out. They may have stuck around for the traditional CBA negotiations, but now that we're entering the lawsuit-filing portion of the program, interests are turning elsewhere. One player described his feeling as numb, which is an apt description because it just doesn't seem plausible that two sides so close to making a deal could suddenly appear so far apart.

The optimism of even a week ago is gone, replaced by labor-board filings and a sudden, complete lack of discussion between the NHL and the NHLPA. We're on a path this week to more canceled games, pushing into January, news of tallied votes on the NHLPA moving closer to a disclaimer of interest and, ultimately, a wiped-out season.

But if you prefer to believe these negotiations had to reach their ugliest depths before finding a solution and that only at its darkest moments would we reach a positive conclusion, then there's good news. We're closing in on those depths.

So how did it get to this point? How in the world did two sides take a sport with so much momentum and hurl it into the courthouse?

Remove all the emotion and it's quite simple, suggested Penn State sports law scholar Stephen Ross.

"Whenever you have any industrial disruption of any length, it's because each side fundamentally thinks the other one is going to cave," Ross said. "This is unlike some of the early baseball strikes, which were about players wanting to be treated as humans and valued employees and old-fashioned owners wanting to treat them as serfs. ... That's not what's going on here. This is not personal, it's business."

And as with most business disputes, this one comes down to money.

"Then the question is why would the players be willing to lose all this money from losing a substantial part or all of the season and why would a majority of the owners who make money in hockey be willing to forgo a full season and lose money?" Ross said. "The only rational explanation is that each side thinks the other one is going to cave."

And now the players are turning up the heat by moving closer to filing a disclaimer of interest. We'll know by Friday whether or not 700-plus players voted to give their executive board the green light to file a disclaimer of interest. Then the board has until Jan. 2 to actually do so.

So with that in mind, here are a few things to understand about the process as the clock ticks toward another lost season. That is, if you're not numb to it all.

Disclaimer of interest doesn't mean the end of this season

Just to clarify, the vote this week would only allow the NHLPA's executive board to move forward with a disclaimer of interest. It doesn't automatically mean it will happen. And if they do ultimately disclaim, they can still reform the union and agree to a deal with the NHL. As lawyer Jeffrey Kessler pointed out, the NBA players had a deal with the NBA two weeks after they decided to decertify. Even clouded by lawsuits, there's a possibility this sparks a solution in the coming weeks. Kessler represented both NBA and NFL players in this process and pinpointed when it was appropriate for them to decertify: "Players in football and basketball ultimately concluded that bargaining as a union was no longer advancing the players' interests." We may be at that point in hockey.

This wouldn't mean the end of Donald Fehr

Ross used the NFL negotiations as an example of how things change after decertification.

"Let's say there's a meeting to try and settle this on Day 1 in football. It's a collective bargaining negotiation under the auspices of the national labor act. There's an oval-like table and in the middle are [DeMaurice] Smith from the players union and [NFL commissioner] Roger Goodell. To Smith's left is Jeffrey Kessler. To Goodell's right is [NFL attorney] Jeff Pash. Now they decertify. No more negotiations. Now, we're going to have a meeting in a hotel room around a big round table. What's it look like? Sitting in the middle is Jeff Kessler, the lawyer of the plaintiff, and Pash is the lawyer for the defendant." And sitting next to the lawyers? Goodell and Smith. So essentially, we're rearranging chairs, according to Ross. "I have trouble seeing the important significance in a large conference room of who sits where. It's the same exact thing," he said.

There's no guarantee how this plays out in court

At first glance, antitrust law makes it look like the NHL players have a strong case against being locked out if they decertify and decide to sue owners for wages lost during the lockout. But this would be a long process, one that could take years to settle. We don't know how the presence of European leagues or the fact part of the league is in Canada would impact rulings. In fact, there are a lot of unknowns. Still, ESPN legal analyst Lester Munson likes the players' chances if it played out to the end.

"There's no question the league is a monopoly, a cartel. It's subject to these laws. It's a case that ultimately the players are going to win," Munson said. "Which Fehr, as brilliant as he is, no doubt understands."

In the meantime, early judgments move power from one side to the other. "If you're the players or the owners and you send this thing to court, you're allowing a judge not to write the agreement but shift the leverage significantly enough that it helps write the agreement in one side's favor," said Gabriel Feldman, director of the Tulane Sports Law Program.

Ultimately, that's all this move is -- another play for leverage. But it remains to be seen whether that leverage will expedite an agreement or make one altogether impossible.