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NHL and NHLPA Head to Mediation

November 29th, 2012 at 3:00 PM
By Matthew Heimlich

The NHL and the NHLPA meet with mediators for six hours yesterday and are meeting again  today.  This is the first time the sides have formally communicated since the NHL rejected the NHLPA's most recent CBA offer last week.  

The two sides chose Federal Medication and Conciliation Services (FMCS) to help resolve the dispute.  FMCS was involved in the NBA's and NFL's most recent labor stoppages, and were used by the NHL during the 2004-5 lockout.  Things did not start off on the right foot with FMCS this time around, when one of the three appointed mediators was removed less than two hours after being assigned for some questionable content put out through the mediator's Twitter account.  

As it stands, the NHL has canceled all regular season games through December 15th, the All-Star game and the Winter Classic.  With December nearly upon us, it seems like only a matter of time before the entire season is lost.  

Few initial details are known about what occurred yesterday, but ESPN reports that both sides spent a great deal of time separately putting forth their positions to the mediators.  The two parties continue to dispute basic components of the CBA, including division of hockey-related revenue and player contracting rights and restrictions.  

Any decision made by the mediators would be non-binding.

There have been rumors of the players decertifying the NHLPA, but no actions to this effect have been taken so far.  Decertification is a powerful negotiating tool at the players disposal that exists due to an interesting relationship between labor and anti-trust law.  Collective bargaining agreements are exempt from attacks under anti-trust law to encourage the league and players to negotiate and create their own rules.  If the players were to dissolve the union, they could open the door for filing an anti-trust lawsuit against the league, as the salary cap, rookie-scale contracts and a number of other facets of the CBA could be viewed as illegal price fixing.  If the players were to win an anti-trust lawsuit against the league, they could recover treble (three times the amount of the actual) damages, a number which would likely be in the hundreds of millions of dollars.  Additionally, they could move the court to stop the lockout until the litigation has resolved. However, this is a drastic step that should not be taken lightly, as it could destroy whatever remaining ties bind the union and the league.

Tags: Law, NHL, NHLPA, Sports, Sports Law

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