It has been said that the current NHL lockout not only includes many of the same actors as last year’s NBA labour dispute, but that it is in fact running off a nearly identical script as well. That belief got a lot of support on Friday with
the NHL’s preemptive legal strike against the NHLPA.
The class action complaint for declaratory relief was, like the NBA’s, filed in the southern district court of New York. Like the NBA’s, lawyers from the firms of Proskauer Rose and Skadden, Arps, Slate, Meagher & Flom were listed at the bottom. But the similarities went much further.
In fact, huge stretches of the two documents were nearly identical. Five of the NHL’s seven claims for relief were lifted
directly from the NBA’s complaint. The same arguments were made, the same language was used; some paragraphs could have been word-for-word quotations.
Every single non-NBA specific argument made in that league’s complaint was duplicated in the NHL’s version.
However, there are differences, and those differences are suggestive. Here are three that stood out to me:
The way the case that a disclaimer of interest would be a bargaining tactic rather than a legitimate end to collective bargaining was presented. In both filings, a central argument was that whether the union opted for decertification or a disclaimer of interest, they didn’t really mean it – in other words, it was a trick to negotiate a better deal and as such should be ignored.
Unfortunately for the NHL, while the NBPA has a pretty long track record of signing deals after talking about decertification, there is no similar track record with the NHLPA. So rather than just say ‘look what they’ve done before!’ the way the NBA was able to, they had to spend a lot more time building a case.
There are myriad extra paragraphs detailing individual players suggesting decertification as a bargaining tactic. There are references to the actions of other unions. To my untrained eye, however, while the NHL has supplied a ton of evidence they are missing two really key pieces: first, an NHLPA track record of doing what they’re alleging, and secondly a Donald Fehr quote hinting at what they’re alleging. They tried for the second; here’s what they got:
You can look at what’s happened in other sports and make your own judgment about [possible NHLPA decertification].
Damning it isn’t.
This is totally the greatest union ever. I’m not sure if this point is so much illustrative as it is just plain funny, but after months of whispering that Donald Fehr was misleading his players and hinting that unity was a major problem, the league took pains to illustrate exactly how awesome the NHLPA has been for the players. The NHL’s complaint digs up tweets, quotes, anything at all said by an NHL player that supports the argument the union is unified and meeting the needs of players. An excerpt from their conclusion, in paragraph 54:
In the recent days and weeks, NHL players have voiced their support for Executive Director Don Fehr, and Steve Fehr, special counsel to the NHLPA, said the union had been getting “amazing support” from the players. These comments do not suggest that the NHL players are unhappy with their Union representation, wish to oust current NHLPA leadership, permanently disband the Union, or prefer to pursue bargaining aims on an individual basis.
Damages. The NHL complaint also spends more time on the subject of damages than its NBA counterpart did. One of the two new claims for relief presented specifically asks that because the NHL lockout arose out of a legitimate collective bargaining process, the court should specifically say that there is no basis for individual players to go on to sue for damages. It’s a point emphasized repeatedly throughout the document, and in paragraph 89 the league makes special mention of treble damages as something the court should rule against.
Of those three points, it is the first one that stood out to me most prominently. If I had just been reading the NHL filing, as a layman I likely would have come away with the impression that the league’s argument was fairly strong. Compared to the NBA complaint, however, the meat behind the allegation that the NHLPA doesn’t really intend to go through with decertifying seems quite thin.
Beyond that, for the most part the overriding message I got from comparing the two documents is that for all the ups and downs of this dispute, on the NHL side the playbook was written well in advance and they’re walking step for step in the trail blazed by the NBA.
James Mirtle <s style="text-decoration: initial; color: rgb(187, 187, 187);">@</s>mirtle
Craig Custance <s style="text-decoration: initial; color: rgb(187, 187, 187);">@</s>CraigCustance
Daren Millard <s style="text-decoration: initial; color: rgb(187, 187, 187);">@</s>darenmillard
