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Volume 24 No. 114
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NHL Lockout, Day 93: NHLPA Begins Voting On Disclaimer Of Interest

More than 700 members of the NHLPA began voting yesterday "on whether to give the union’s executive board the authority to file a disclaimer of interest, a move that would effectively dissolve the union and allow individual players to file antitrust suits against the NHL," according to Jeff Klein of the N.Y. TIMES. The electronic vote "runs until Thursday, with a two-thirds majority needed to grant the 30-member board the authority to dissolve the union." The league responded to Friday’s announcement of the vote "by filing suit in federal court in New York to confirm the legality of the lockout called by Commissioner Gary Bettman on Sept. 16." It also "filed a charge with the National Labor Relations Board, alleging that the union’s vote 'constitutes bad-faith bargaining.'" In last season’s NBA lockout, a "similar series of events preceded a settlement." However, the NHL’s response to the "preliminary move by the players union is more aggressive than the NBA’s response was to the dissolution of its players union." The league’s suit cites NHLPA Exec Dir Donald Fehr and several players "who have made public statements about decertifying the union as evidence of unfair bargaining" (N.Y. TIMES, 12/17). In Ottawa, Bruce Garrioch noted the league "included plenty of evidence to try and establish that the union had always intended to decertify or file a disclaimer of interest" (, 12/14). The case was assigned to U.S. District Judge Paul Engelmayer, who "joined the bench in July 2011" (AP, 12/16).

BY COMPARISON: QMI AGENCY's Chris Stevenson noted the "threat of antitrust lawsuits, in part, spurred both the NFL and NBA to strike deals with their respective player associations." Senators D and player rep Chris Phillips yesterday said, "This is our way of being proactive. We feel like we have exhausted all of our options and left us with nothing but this choice, is the way we see it" (QMI AGENCY, 12/16). The GLOBE & MAIL's James Mirtle wrote, "Get ready for the NHL lockout to hit a new level or ugliness and incomprehensibility." The U.S. court system is "about to get involved in hockey's labor dispute, a development that could either bring a swift halt to the fight or drag it out for months." Whether the maneuver "is effective is up for debate." Players in the NFL and NBA went that route last year during their lockouts, and "advocates on their side still believe the move helped them get a better deal." Attorney Jeffrey Kessler, who represented the NFLPA and NBPA in those disputes, said that in "both cases the players received more concessions after dissolving the union than they otherwise would have." Kessler: "In the NFL, the players concluded there was no benefit to being a union. The owners were so dug in. As a result (of disclaiming interest) they eventually settled litigation which led to them getting 55 per cent of NFL revenue last year without losing one game." He added, "In basketball, the players were completely stymied by impossible negotiating tactics. So the players decided to end the union and two weeks later they reached a settlement which preserved basically their entire free agency structure with no change. Are those good results or bad results compared to what NHL players are facing today?” (GLOBE & MAIL, 12/15).

CONTRACTS COULD BE VOIDED: The OTTAWA SUN's Garrioch in a separate piece noted if the union is "successful in winning its disclaimer of interest and then going the route of dissolution, then the NHL wants all contracts signed by the players deemed null and void." A source said that the NHL "might want to be careful about having success on this front." The source said, "So, the NHL is asking the courts to declare every NHL player an unrestricted free agent. I wonder how Pittsburgh would feel with (Sidney) Crosby, (Evgeni) Malkin and (Marc-Andre) Fleury on the free agent market to sign with the highest bidder? What about Tampa with (Steve) Stamkos? Or Minnesota with (Zach) Parise and (Ryan) Suter? A word of caution to the NHL, be very careful what you wish for" (, 12/15).'s Craig Custance wrote, "So, basically, everybody becomes a free agent in that scenario. Sure, it might lead to two or three years of court fights, but the idea is a wild one to consider." This is the "start of the nuclear option" (, 12/15).

PLAN OF ATTACK: In Detroit, Gregg Krupa wrote the strategy of Bettman and the owners "from the start was to frustrate any sense on the part of the players that negotiating might be worthwhile, endeavor continually to separate them from Fehr, act like they are really, really angry, and then go to court." It is "right out of the playbook of the recent lockout in the NBA" (DETROIT NEWS, 12/16). In N.Y., Larry Brooks wrote disclaiming and decertifying "are neither maneuvers nor tenets" Fehr "embraces easily." This "true believer in the power of collective bargaining has been loath to go down this route even while the rank-and-file has coalesced behind the process over the last month." Reading the NHL’s complaint "is a hoot." Here is the league that just over a week ago "was doing everything in its power to keep Don Fehr out of the bargaining process, and is now going to court to ensure he continues to represent the players in the bargaining process" (N.Y. POST, 12/16).'s Pierre LeBrun wrote the "gloves are off in a whole new way now in the NHL's labor impasse." But it "doesn’t mean that those moderate owners trying through the grapevine to keep reasonable dialogue going ... won’t be alarmed by Friday’s news from the NHLPA camp." What those moderate owners "might fear is that the hardliners are winning over the moderates in the player camp and that what seems like such a small gap separating both sides on the key issues might now widen if this thing gets nasty." LeBrun: "And believe me, it will get nasty if the players go down this route. The league and its owners will just bomb the whole season if the players ever actually officially file a disclaimer of interest. That’s my guess, anyway" (, 12/14).

BETTMAN THE BUSINESS MAN: In L.A., Helene Elliott profiled Bettman, and Maple Leafs President & GM Brian Burke, who served as Bettman's deputy from '93-98, said, "He's brilliant. He's mastered the breadth of the industry, and it's a broad industry, with lots of detail. He communicates wonderfully with the owners. That's a big part of the job. He's probably on the phone with 10 different owners every day. He was very fair when I worked for him. A born teacher." Elliott wrote the "knowledge and assurance that make Bettman an effective businessman make him an unsympathetic figure to players, fans and those who have emotional investments in the game." Burke said, "I wish Gary was perceived more fairly than he is in Canada because he's a great guy, a brilliant guy, and he's really been good for our league." Elliott wrote while fans "hurl profanity or make veiled threats via social media," Bettman "tries not to flinch publicly." NBA Commissioner David Stern said, "He handles it as well as anyone possibly could. He understands that comes with the job, as we all do. ... That's why it's important that you believe in what you're doing and have the support of your owners and you know that's what they expect you to do" (L.A. TIMES, 12/16). In Montreal, Jack Todd wrote, "You can kill the NHL, Gary, but you can't kill hockey" (Montreal GAZETTE, 12/16).

LEARN BY DOING: In Boston, Fluto Shinzawa noted Bruins LW Shawn Thornton in early November was one of 13 players to participate in a bargaining session in N.Y., and while he "appreciated the opportunity to make his voice heard," Thornton was "taken aback by the nature of bargaining." Thornton said, "I was amazed at how slow the process is when you're actually there. It's a lot of meetings, a lot of talking in circles, a lot of talking about the talking in circles, then going back in and talking in circles some more. It was eye-opening. It teaches you to have a little more patience. I recommend everybody to do it at one point if they get the chance to go down and see it" (BOSTON GLOBE, 12/16).

AROUND THE LEAGUE: In Montreal, Pat Hickey wrote, "Here's a suggestion for the NHL when the league does return to the ice: Don't insult us with an on-ice message saying thanks. If you have to sacrifice that precious advertising space, the only appropriate message would [be] along the lines of 'Please forgive us'" (Montreal GAZETTE, 12/14)....In Toronto, Lance Hornby noted Maple Leafs RW Joffrey Lupul "found that Real Sports, the popular hangout next to the Air Canada Centre, would not honour his reservation request because of the ongoing bad blood between owners and players." Lupul, through his Twitter account, complained that the restaurant and adjoining sports store "won't set aside table for the Leafs, 'but will continue selling our jerseys at $300 a pop.'" Lupul later "deleted the tweet and added a new message." He wrote, "In hindsight Twitter was probably not the right place to voice my displeasure w @realsports" (, 12/16)....The BOSTON GLOBE's Shinzawa noted Bruins players "recently received Christmas cards" from Owner Jeremy Jacobs. Shinzawa: "Doubt those are going on any mantles" (BOSTON GLOBE, 12/16).