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McKenzie: Three CBA-related issues to be talked about soon

Bob McKenzie
11/22/2012 7:04:26 PM
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Three CBA-related things we're likely to be dealing with or talking about in the not-too-distant future:
 
1. More cancellations.

The expectation is the NHL will, as early as tomorrow, announce another block of games (two weeks' worth?), including the NHL All-Star Game in Columbus, will be officially cancelled. So far, the NHL has cancelled 326 regular season games through the end of November plus one more, the Winter Classic, for a total of 327.
 
2. Shrinking or disappearing "Make Whole" dollars.
 
The NHL has proposed giving the players $211 million as part of "Make Whole." The players this week proposed the number should be $393 million, a gulf of $182 million.
 
Unfortunately, for those of us who would like to see an agreement, that $182 million chasm is more likely to grow rather than shrink.
 
Whether it's in a matter of days or week(s), it's seems only a matter of time until the NHL reduces the $211 million figure or pulls it off the table entirely.
 
With each passing day, as the potential number of games that can be played in shortened season is lessened and the lockout-related damage to Hockey Related Revenue (HRR) becomes greater -- exponentially reducing the size of the economic pie available to players and owners -- the likelihood of a fixed number of guaranteed dollars being given to the players becomes more remote.
 
Make Whole, whatever one thinks of it, was initially introduced as a measure to soften the landing of players going from 57 per cent to 50 per cent of HRR, but on the basis of an 82-game schedule. It took a few weeks for the NHL to re-adjust Make Whole so the owners, not the players, were footing the bill for it but, again, the offer was made with the intent of playing if not a full season, something close to it.
 
Anyone's best guess is that if we got a deal done in the next week -- highly unlikely -- and allowed for a one-week training camp, we could be playing games by the end of the first week of December and get in perhaps 60+ games.
 
As that number shrinks, as long as the $211 million ($149 million this season) remains on the table, a so-called 50-50 agreement with Make Whole factored in would mean the players would be getting far more than 50 per cent.
 
Make Whole has an expiry date. We're not sure exactly when that is, but it's coming.
 
3. Decertification.
 
It's already the word-du-jour, and for good reason.
 
On pretty much every NHLPA conference call with the players in past weeks, there's been some discussion on the potential of decertification as an NHLPA strategic tool. But on each of those calls, the emphasis always turned towards negotiating a settlement with the NHL and decertification was shelved.
 
Until last night's conference call, that is. For the first time, when decertification was brought up, there was no stated objection to it. A number of NHL players who might have otherwise have raised an objection or concern to it didn't because they said the climate on the call, after the NHL rejected what the players thought was a significant proposal, was too hot to talk of moderation.
 
After last night's player call, it is fair to say that NHLPA executive director Don Fehr has the mandate or green light to go down the decertification road. That doesn't necessarily mean decertification is imminent or that the actual process is underway, but multiple sources say it is unquestionably on the next page of the NHLPA playbook and that is a viable option that may soon become reality.
 
If the average hockey fan is confused or perplexed by the economic intricacies and guiding principles of this lockout from both sides, their brains are likely to explode just trying to get a handle on the meaning/pros and cons of union decertification.
 
Before we try, in 30 words or less, to explain the essence of decertification, Barrister Bob (that's me, and not to be confused with Dr. McKenzie, who makes off the cuff medical assessments) will tell you what appears to be legally required to decertify the NHLPA.
 
First, the NHLPA must petition for the mere opportunity to decertify. A petition signed by one-third of the NHLPA is required to launch the process. If that petition is successfully executed, decertification could go to a membership vote, with simple majority rules. So if 51 per cent of the NHLPA membership voted in favor of decertification, the NHLPA would technically no longer exist.
 
The NHL would no longer have a union to bargain with. Don Fehr, technically, would no longer represent the players.
 
Once a union or association is decertified, its legal counsel must seek a preliminary injunction in court that basically says this mass of individual players with contracts is ready, willing and able to fulfill those contracts and that any existing lockout is illegal. And if the court rules in favor of the players, they would be returning to a league with no legal CBA in place and the league would not necessarily have any anti-trust exemptions.
 
What's that mean in English? The lockout would be considered illegal. No draft, no salary cap, no real rules of any kind, in theory. Potentially, it's chaos. Often times, the mere threat of decertification and going down that uncertain road is what pushes together warring CBA factions.
 
But decertification can also be a murky world. Free agency, no cap, no draft, yes. Medical benefits and pensions? Well, anything that the CBA previously spelled out would, in effect, be gone.
 
And just because a union decertifies doesn't automatically guarantee a court will rule in the players' favor on the preliminary injunction that would make the lockout illegal.
 
The NFL Players' Association decertified, got a favorable court ruling on the preliminary injunction but another court, in three separate instances (a stay, an extended stay and a formal ruling), reversed and overruled the initial court's ruling.
 
So there are a lot of moving parts, it's infinitely confusing for the average fan, more so for the average media member, but it's clearly a strategy we're going to be hearing a lot more about in the coming days.

Bob McKenzie

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