Friday, November 23, 2012

Decertification for Dummies (and I'm one of them)

Ok lets talk about decertification.
I will start by telling you I know nothing about decertification.
Everything I am about to tell you comes from a conversation I had with a lawyer friend of mine.
He does not deal in sports law,  but rather international trade law, anti-trust law and a good portion of his practice deals with free trade law.
All the comments, and assertions below are a result of the questions I asked him and none are my own interpretation.  I would not want to pretend in any way that I understand any of this.

The end result of union decertification in North American Pro Sports is still completely unknown because no case has even been taken to its full conclusion.  Any time in the past,  decertification in baseball, football or basketball has been threatened or the process begun,  a collectively bargained deal has been reached before true and final decertification took place.

Perils for the owners.  Union decertification for lack of a better term,  makes every single player in the NHL a free agent all at once.  The rules are,  there are no rules.  No CBA, no draft, no salary cap, no union to deal with.  Each player and his lawyer would have to represent themselves.  Decertification would also likely force owners to lift the lockout and allow the independent contractors to earn a living.  It also means the owners may be subject damages the players incurred during the lockout.  Those damages can be subject to "treble" association which apparently means triple the amount of the damages.

Perils for the players.  Each player must now negotiate every single protection into his own contract.  There is no singular body to argue and lobby on your behalf.  There would be no salary cap anymore but there would also be no guaranteed contracts or minimum salaries anymore either.  The rich players would likely become a great deal richer and more protected while the other half of the players would be subject to what ever scraps and security they could negotiate for themselves.

Apparently in the NFL dispute,  the 2 major court challenges during their decertification process were both lost in court by the players and specifically in the Brady vs. NFL case.

It also appears that where the case is filed and adjudicated is a major issue.  New York is the NHL’s American head office,  so that is where any filing would have to happen and New York is very owner friendly when it comes to decertification and anti-trust issues,  or so I am led to believe.

The scary part of decertification as it relates to pro sports is the fact that there is next to no track record of knowing how a case would turn out for either side if it were ever pushed to the very end.  Owners fear that kind of mayhem and only players who perceive they have no other choice,  would ever choose decertification because it means blowing up the industry.

One thing is certain.  If this is the route the players choose to follow,  it will be a painful learning experience for all of us to watch and any reporter in the NHL without a law degree might just as well start looking for a new job now.

You could not get a more remedial explanation of the basics of union decertification than this,  but it’s the best a play-by-play broadcaster without a law degree can come up with on a Friday.

See you at the rink


Anonymous said...

I heard your comments today on the fundamental tenets of unionism and the circumstances under which people would be tossed out of unions. I am former president of a union local and was appalled at the misinformation. While I am sure your intentions were good, I don't think it helps to confuse the public even more about unions. There are plenty of misunderstandings already!

I would suggest in the future you stick to topics you have a sound understanding of. I look forward to hearing you call Senators games again... and hopefully not too long from now.

Dean Brown said...

Dear anonymous former union local president.

Please email me. I would love to find out why you were appalled with my misinformation. I am a union member and also a member of a professional association. Earlier in my working life I belonged to another union. I am not new to unions. I routinely get emails from both union members and union organizers who ask me and the rest of the media (as if I have any control over all media) to stop calling the NHLPA a union. They point to exactly the behavior I spoke of on the air as evidence the NHLPA is not a union but rather a collection of independent business men under the umbrella of a professional association. If you have a different view of what is or isn't proper union member behavior, it seems to be in direct opposition to the perspective of union members and union leaders who contact me. By the way, the union people who contact me I have both respect and confidence in since they are willing to give me their name and union affiliation. Anonymous notes don't do much for ones credibility in a discussion.