Legal Look: Decertification vs. Disclaimer of Interest

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Eric Macramalla, TSN Legal Analyst
12/11/2012 11:21:20 AM
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With the NHL and NHLPA unable to broker a deal, we've heard a lot about the possibility of the NHLPA dissolving itself with a view to the players initiating antitrust litigation to, in part, get a court to lift the lockout.

This process of dissolving the NHLPA has been referred to interchangeably as decertification and a disclaimer of interest. The terms, however, are different (Click here for a primer on NHL decertification).

Decertification

Decertification refers to the players voting to no longer have the NHLPA represent it. It's a formal process that requires a few things.

First, a petition supporting decertification must be signed by at least 30 per cent of NHL players. Once they have the votes, the petition is filed with the National Labor Relations Board (NLRB). The NLRB is a U.S. agency charged with such things as conducting elections for unions and dealing with allegations of unfair labor practices.

Once the NLRB rubber stamps the petition, it schedules an election to determine if the majority of NHL players support decertification. The NLRB will decertify the NHLPA if at least 50 per cent of NHL players are in favour of it.

All in, decertification can take somewhere between 45 to 60 days. So it's not that fast.

Disclaimer of Interest

While decertification is the players walking away from the Union, a disclaimer of interest is the Union walking away from the players. So a disclaimer of interest occurs when the Union terminates its right to represent the players. It's also a less formal process than decertification. It can be as quick as Donald Fehr sending a letter to the Commissioner's office declaring the NHLPA no longer represents the players as a bargaining agent. There's no vote, no petition and no decertification election.

Is the Result of the Two The Same?

Yes. While they are different, the net effect is the same: the Union is dissolved and the players are free to sue for antitrust violations.

If It Happens Here, Which One Will It Be?

Of the two options, we are more likely to see a disclaimer of interest rather than decertification. Time is tight, and a disclaimer gets the players to court a lot quicker. That's what the NBA Union did when it disclaimed interest last November during the lockout.

On the flip side, because a disclaimer of interest doesn't include a player vote, it may be more vulnerable to the NHL's sham argument, namely, that the players only disclaimed interest to extract leverage in negotiations. It may be tougher to allege a sham argument in the case of a decertification, where players actually made their intent known by way of a vote.

Will We Actually See A Disclaimer?

While it can't be completely discounted, at the moment, it doesn't seem likely the NHLPA will be dissolved. There is no doubt that there remains a divide between the NHL and NHLPA. However, the sides are inching closer to settlement; the divide is closing (or so it seems). If the players believe they are in the stretch run, they may want to dedicate their resources and time to negotiations and not litigation.

That being said, if NHLPA believes that there is no more room to settle, it could well decide that the time is right to dissolve the NHLPA and head to court.

And that's when things could really heat up.

Eric Macramalla is TSN's Legal Analyst. He can be seen on TSN's That's Hockey and heard each week on TSN Radio 1050. You can follow him on Twitter @EricOnSportslaw.

Steve and Donald Fehr (Photo: The Canadian Press)

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(Photo: The Canadian Press)
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