NHLPA Sued in Federal Court by its Members

Yesterday, a group of dissident members of the NHLPA filed suit in federal court against the NHLPA, executive director Ted Saskin (shown on right), and former members of the NHLPA's executive committee, seeking the removal of Saskin, and also an award of unspecified millions of dollars in damages and punitive damages. ("Disgruntled NHL players ask court to remove union director"). In June 2005, the NHLPA accepted a collective bargaining agreement that ended the lockout and for the first time contained a salary cap, which ran counter to the views that Goodenow expressed in negotiations with the league. Shortly thereafter on July 28 2005, Bob Goodenow was dismissed as executive director and the union agreed to pay off his contract. That same day, Saskin was hired as executive director "despite the fact that Saskin was never properly nominated for the position by the executive board" according to the dissident group.

In an attempt to quiet the complaints after Saskin was hired, the union held a secret ballot among player representative executive board members to ratify Saskin's contract as executive director; 28 of 37 eligible ballots had been received and 24 of the 28 confirmed Saskin's position and contract as executive director. The lawsuit further alleges that, "despite express instructions from the executive board that no cap be negotiated, Saskin acting as primary spokesman for the NHLPA, agreed to a collective bargaining agreement containing a system which functions as a hard cap" that was whisked through the board in a conference call with just 12 hours notice and that Saskin and others withheld key information from union members including a side letter containing details of how the cap worked.

Players unions owe their individual members a duty of fair representation (DFR). It is well-established by U.S. Supreme Court precedent that a breach of the DFR occurs only when a union’s conduct toward a member of the collective bargaining unit is "arbitrary, discriminatory, or in bad faith".

While the press release doesn't disclose the legal claims being asserted by the dissident group, DFR is most likely one of them. The DFR standard is extremely difficult to meet, but DFR claims typically involve a situation in which one member of the union is claiming that the union didn't fairly represent his interests (i.e. by not filing a grievance on his behalf). In this case, there is a fairly large number of members that make up this dissident group (more than 100 according to Chris Chelios) and I think that is a significant factor that could have an influence on a court or jury. Another significant factor, if it can be proved, is that the board allegedly gave express instructions NOT to agree with the league on a salary cap and the union (with Saskin acting as the primary spokesman) went behind their back and agreed to it. The union will most likely argue that whatever was agreed to in the CBA does not single out, or treat differently, any individual member, and therefore it's not arbitrary or discriminatory. Basically, this dissident group must show that the union acted in "bad faith" by agreeing to a system that functions like a hard cap when (and if) the board previously made it clear that they did not want any cap. Federal courts usually retain jurisdiction over DFR claims.

Another claim this dissident group of players could be asserting is an unfair labor charge against the union claiming that the players were denied access to information and the right to vote with respect to both the salary cap issue and the hiring of Saskin as the new executive director. So regarding the cap issue, their argument goes, "we told you we didn't want a cap to begin with and you still agreed to it, but what's worse is that you didn't even keep us informed, disclose how it would work nor give us an opportunity to approve the details." The success of this claim will essentially depend upon the procedures outlined in the union's constitution and bylaws as it pertains to the disclosure of information, access to information, and voting with respect to collective bargaining issues and the firing/hiring of executive directors. But the NLRB usually has exclusive jurisdiction over these types of claims.

A third claim that is likely being asserted is that the union's hiring of Saskin was ultra vires -- beyond the scope of the union's authority and a breach of the union's constitution and bylaws. The court would have jurisdiction over this claim. But regardless of the legal analysis, it sure looks really bad when 100 plus players are suing their union in federal court. In fact, I don't ever recall this many players suing their union in federal court.

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