TORONTO -- It appears the next stage of the NHL lockout will play out in court.
The league filed a class-action complaint in New York on Friday, seeking a declaration confirming the legality of the lockout, and submitted an unfair labour practice charge with the National Labor Relations Board. Both moves are considered pre-emptive strikes before the NHL Players' Association disbands.
On Thursday night, the union's executive board requested a vote from its membership that would give it the authority to file a "disclaimer of interest." Should the 30-member board be granted the right, the disclaimer would see the NHLPA dissolved, giving players the ability to file class-action anti-trust lawsuits against the league.
Similar strategies were used during last year's NBA lockout.
Jeffrey Kessler, the lead negotiator for the National Basketball Players Association in that dispute, believes the NHLPA would be wise to go ahead with the disclaimer of interest.
"I think this is much more likely to lead to a settlement sooner," Kessler said Friday. "The players have concluded that they are on the verge of possibly deciding that it is better not to be a union and using the anti-trust laws to attack the lockout, which all fans should be happy with because it'll work.
"I assume the fans would like the lockout to end."
Spokesmen for both the league and the NHLPA declined comment on Friday afternoon.
By filing the class-action complaint in New York, the league guaranteed that the legality of the lockout would be decided in a court known to be sympathetic towards management. If the NHLPA dissolves it will seek to have the lockout deemed illegal -- something that could see players paid triple their lost salary in damages if successful.
With Kessler at the helm, NBA players filed a disclaimer of interest while they were locked out in November 2011. Almost immediately, the owners changed their stance on "maybe 15 or 20 different issues," according to Kessler.
A new collective bargaining agreement was agreed to within 12 days of the basketball union dissolving.
Last week when NHL commissioner Gary Bettman fielded a reporter's question about the NHLPA decertifying, he indicated that the union was more likely to pursue a disclaimer of interest. He also ensured the board of governors was brought up to speed on the issue when it gathered Dec. 5 in New York.
"The board was completely and thoroughly briefed on the subject," said Bettman. "And we don't view it in the same way in terms of its impact as apparently the union may."
Kessler believes that Bettman would have a different opinion after talking with NBA commissioner David Stern, his former boss.
"Dave Stern said the same thing (that he wasn't worried about the union disclaiming interest) and we settled two weeks after the basketball players disclaimed," said Kessler. "So maybe commissioner Bettman should confer with his previous mentor on that."
The NHL's collective bargaining talks have failed to produce much progress. The sides spent two days with a U.S. federal mediator in New Jersey this week and don't currently have any further talks scheduled.
The NHL is in danger of losing a second season to a labour dispute. All games through Dec. 30 have been cancelled and a new deal would need to be in place by mid-January to salvage a 48-game schedule, the minimum Bettman says needs to be played.
Kessler thinks the odds of that happening will increase if the NHLPA dissolves.
"This option has been available to the players all along," said Kessler. "The union made it clear that it was going to be a last resort so I think we can conclude that the usefulness of collective bargaining has about exhausted itself."
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