NHL Lockout: NHLPA Could Vote on Disclaimer of Interest: What Does It Mean?

Steve SilvermanFeatured ColumnistDecember 14, 2012

A disclaimer of interest vote by the players could have an impact on the stalemate between the NHL and the NHLPA.
A disclaimer of interest vote by the players could have an impact on the stalemate between the NHL and the NHLPA.Bruce Bennett/Getty Images

The NHL lockout is beginning to reach its most critical stage, and the NHL Players' Association has taken the first step to force the league's hand.

According to hockey analyst Aaron Ward of TSN.ca, the NHLPA's executive board voted Thursday night to give its members the right to vote on whether or not a disclaimer of interest should be filed with the NHL.

If the NHLPA takes such a vote and gives its authorization, the NHLPA's executive board would then have the authority to advise the league that it no longer represents the players as a bargaining entity.

The news of this vote may presumably push the NHL to act quickly to end the lockout if it wants to save the 2012-13 season. However, there are no guarantees that the league would take any action at this point.

A disclaimer of interest is one of two actions the NHLPA could take in an attempt to unlock the stalemate between the two sides. The other is decertification.

The two are quite different, according to TSN.ca legal analyst Eric Macramalla.

When a disclaimer of interest is filed, the union walks away from its right to represent the players. This is considered a much faster and more informal way to terminate the union's representation ability.

Macramalla states that this can be done in the form of a letter from NHLPA executive director Donald Fehr to NHL commissioner Gary Bettman saying that the union no longer represents the players as a bargaining agent.

Decertification, however, refers to "the players voting to no longer have the NHLPA represent it," according to Macramalla. This is a much longer and more involved process that may take 45 to 60 days.

It's important to know the difference between the two processes.

When the subject of possible union decertification was brought up by media members in late November, deputy commissioner Bill Daly said that decertification was a "time-consuming process that would likely lead to the end of the season" (via SportsNet.ca).

Daly did not address the NHL's reaction to the possible filing of a disclaimer of interest.

If the players file a disclaimer of interest, they would then have the right to sue the league for antitrust violations almost immediately.

The NBA Players' Association followed this procedure last November, and NBA commissioner David Stern reacted to the news by saying it would cause the "nuclear winter" of the NBA (via the Houston Chronicle).

However, the NBA and the NBA Players' Association reached an agreement about two weeks after the disclaimer of interest was filed.

It seems likely that the NHL would follow the same path, but there are no guarantees. It could lead to a quicker resolution of the lockout, but it could also lead the NHL to take its own drastic action and cancel the season.