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Tuesday, October 02, 2012

An NHL Antitrust Hat Trick?

Thanks for the invite PrawfsBlawg!  Writing from the homeland of current Stanley Cup Champions, the Los Angeles Kings (Tri-State dwellers love it when you say that), I feel I must discuss the NHL lockout.  Unfortunately hockey fans are no stranger to long strikes and lockouts (remember the 2004-05 season?  no?  exactly.).  In fact, one of my students has written a terrific piece where she charts the strike/lockout history of the four major sports leagues.  Each league shares a common intense interaction among players, owners, the NLRB and (sometimes) antitrust authorities. But the NHL stands apart in at least one way--although it could be effective, the NHL Players Association (NHLPA) has never been decertified as a negotiating strategy.*

Decertification of the union is a strategic maneuver by players because it permits the use of a very big stick--a Sherman Act s. 1 antitrust claim.  Given the corporate structure of most leagues, it is simple to bring a colorable antitrust claim.  However,  a collective bargaining agreement puts players under the authority of the NLRB, not antitrust (Powell).  But if players decertify the union then "presto" there is no CBA to bind players and it's off to the federal court house they go. 

The players of the NFLPA and NBPA have done just that as recently as 2011--quite effectively thank you very much.  Is strategic decertification bad faith negotiation?   No answer yet from the NLRB because claims of bad faith have always been mooted by quick settlements--so, well, the strategy works.  Given the recent success of the NFLPA and NBPA decertifications and antitrust suits, the question for the NHLPA is whether this season they'll score an antitrust hat trick?

*[The MLBPA has not been decertified either but the strategic benefit of doing so has been dubious until the late '90s given baseball's unique, judicial antitrust exemption .]

Posted by Babette Boliek on October 2, 2012 at 09:29 AM in Sports | Permalink

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Congress partially revoked baseball's antitrust exemption in 1998 to allow the MLBPA to decertify and file an antitrust suit against MLB. Curt Flood Act of 1998, 15 U.S.C. § 26b.

Posted by: Anonity | Oct 2, 2012 10:19:41 AM

One other factor to consider with regards to a decertification of the NHLPA is the potential application of Canadian labor law given the numerous NHL franchises located north of the border.

Also, here are a couple recent papers regarding players union decertification that may be of interest (post NFL and NBA lockouts of 2011):

http://lawreview.law.ucdavis.edu/issues/45/4/Articles/45-4_Feldman.pdf

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1978517

Posted by: Sports Lawyer | Oct 2, 2012 4:54:56 PM

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