NHLPA Disclaimer of Interest: What It Means

Steve Silverman@@profootballboyFeatured ColumnistDecember 20, 2012

NEW YORK, NY - DECEMBER 04:  After a 5-1/2 hour negotiating session between the NHL and the Players Association, Donald Fehr, Executive Director of the NHLPA speaks on the phone during the dinner break at the Westin Times Square Hotel on December 4, 2012 in New York City.  (Photo by Bruce Bennett/Getty Images)
Bruce Bennett/Getty Images

The NHL Players' Association frustration with the NHL has led them to try to end the stalemate by taking the matter to court.

Their strategy involves filing a disclaimer of interest, which would mean that the union no longer represents the players.

However, before the lead negotiator Donald Fehr and NHLPA can file this disclaimer, it needs two-thirds approval from of its players. Voting on the issue began Dec. 16 and it ends today, Dec. 20.

While the strategy appears somewhat convoluted, the NHLPA believes that a successful vote would allow it to file an antitrust challenge to the NHL's lockout.

If that challenge was successful, teams would be forced to pay triple the players' lost wages in damages (source: TheFourthPeriod.com).

The NHL says the NHLPA's disclaimer vote is merely a tactic that will be used "to extract more favorable terms and conditions of employment." (source: CBC.ca)

The NHLPA is following the example set by the National Basketball Association Players' Association in last year's lockout.

In that dispute, the NBAPA filed a disclaimer of interest in November, 2011. NBA commissioner David Stern immediately decried the move and said the NBA was moving into its "nuclear winter," but the two sides worked out an agreement on its differences 12 days later (source: Houston Chronicle). NBA teams began playing on Christmas Day and the postseason played out to a conclusion, with the Miami Heat winning the NBA championship.

If the NHLPA votes in favor of filing the disclaimer of interest, it is hoping that it will lead the league to return to the table and hammer out a new Collective Bargaining Agreement. The threat of an antitrust challenge would presumably lead the NHL to deliver more favorable negotiating terms.

Gary Bettman said the NHL owners understand what the disclaimer of interest means and that it wouldn't necessarily have the same impact in hockey that it did in basketball. "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."

However NBAPA chief negotiator Jeffrey Kessler said Bettman would have a different opinion after talking with NBA commissioner David Stern.

The disclaimer of interest would have to be approved by the National Labor Relations Board, according to Canadian media guild chief negotiator Dan Oldfield. If the NLRB saw the disclaimer of interest as a tactic aimed at getting the NHLPA a better bargaining position, it would not approve the maneuver.

However, the vote itself is not a sure thing. While it would seem likely that most players would go along with it, the two-thirds majority is difficult to gain.

If the disclaimer of interest vote does not succeed, the players' only option would appear to be returning to the negotiating table.

That process has not been successful to this point and it would appear that the players would return to the talks at a disadvantage.