Legal Strategies for NHL Players to Obtain Free Agency

As reported in the Ottawa Sun, if there is no new NHL collective bargaining agreement in place by July 1 -- the date players whose contracts expire must receive qualifying offers -- a group of NHL players are prepared to sue to be declared unrestricted free agents. (Garrioch, "Free Agent Frenzy," 4/27/05)

Although still hypothetical, this is certainly an interesting issue. I imagine that an American court may be reluctant to jump into this type of dispute, unless there was evidence that the NHLPA had lost its bargaining power. A similar, though not entirely analogous, issue arose in National Basketball Association v. Williams, 809 F.2d 954 (2nd Cir. 1994), which dealt with the NBA labor strife of 1994. In that case, the 1988 CBA between the NBA and the Players' Association had expired, and the two sides were unable to agree on a new CBA for almost a year. A group of NBPA members brought suit, alleging that because the 1988 CBA had expired, it no longer received the protection of the federal labor exemption. The court disagreed, holding that antitrust immunity remained in effect so long as a collective bargaining "relationship" existed. Thus, if the NHL and NHLPA remain in a state of negotation into the summer, and the NHLPA has sanctioned that negotiation, I suspect a court would be reluctant to interfere. Bear in mind, for purposes of determining a bargaining relationship, "negotiation" typically requires only limited engagement between the parties, making it less likely that affected NHL players could prove otherwise.

But that begs a question: What happens if, frustrated by the failure of negotiations, a majority of NHLPA members voted to decertify the Players' Association? In that case, the fact pattern changes dramatically, since decertification would remove the NHLPA's collective bargaining power, and the federal labor exemption would almost certainly no longer apply.

There is some precedent for this strategy. In Powell v. National Football League, 930 F.2d 1293 (8th Cir. 1989), cert. denied, 498 U.S 1040 (1991), eight players brought suit against the league, alleging that provisions of the CBA between the NFL and NFLPA violated antitrust laws. Significantly, even though the CBA between the NFL and NFLPA had already expired, the players were only able to succeed with their suit after the NFLPA was decertified.

In short, if these NHL players really want to become free agents, they should probably first seek to decertify the NHLPA and then sue.

Of course, the best thing they could do is work out a new CBA with the NHL, but that's another story.

FN: Thanks to Ralph Hickok for pointing out this story, and Eric McErlain has more over at Off Wing on how NHL rosters might dramatically change with new free agency rules.

Posted in: