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Monday, November 19, 2012
 
NHL Lockout: Will players decertify and sue? If so, when?

In recent weeks we've had several excellent posts on the NHL labor situation, which has cost 327 games through November 30 plus the Winter Classic.  A notable piece of news in Larry Brooks' New York Post Sunday column has NHL players opposed to the idea of decertifying (and also, presumably, disclaiming interest) in the NHLPA -- at least for now.  According to Brooks, players want to continue negotiations with the league.  Although the two sides appear to be within striking distance of agreement on two important issues -- division of hockey-related revenue and sharing of revenue -- additional issues, including contract rights and restrictions, have proven more difficult to resolve.  The two sides also appear to mistrust each other at higher levels than found among league and players' officials in the NFL and NBA lockouts. Lack of trust means they are less willing to agree on the parameters of provisions and work out the details later (as we saw happen with B-list issues in the other two lockouts, with the NFL and NFLPA agreeing to the concept but not implementation of HGH testing, and the NBA and NBPA agreeing to the same and also to revisit the age limit).

If the NHLPA does decertify or disclaim interest, players would likely file antitrust lawsuits in federal US courts and in courts in Canada.  In February 2012, I analyzed this option for NHL players in an article for MIT Sloan Sports Analytics.  I predicted, and still predict, that players will try to avail themselves of the labor-friendly Ninth Circuit and also courts in the more labor-friendly Canadian provinces:
....if the NHL locks out its players later this year if the NHLPA decertifies — which means that each player becomes independent and can file litigation in a court nearby where he plays — expect the players to file antitrust litigation in a federal court in California or Arizona.  Both states have NHL teams, meaning the league has sufficient nexus to each state to defend itself in court.  More importantly, both states are governed by the U.S. Court of Appeals for the Ninth Circuit, which is regarded as more pro-labor than other federal circuits and which may embrace a view of the Norris-LaGuardia Act favorable to players.  It is also possible NHL players could file litigation in Canada, which features stronger labor laws.

The NHL, for its part, would probably seek to move any litigation to New York, where league headquarters are based and where case law from the U.S. Court of Appeals for the Second Circuit is favorable to its interests.  The league might instead seek to defend itself .... in the Eighth Circuit, which ruled in favor of the NFL.
As we saw in the other two lockouts, there is a less obvious benefit to antitrust litigation: new voices (namely attorneys, like David Boies) join discussions on settling issues of division, and that can play an important role.

Hopefully the NHL and NHLPA strike a deal in the next week or so to save a season.  But if the lockout continues into December and if the NHL cancels the season, players may have to revisit their strategy and the possibility of antitrust litigation. 





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