If there's a hockey player somewhere making a list of pros and cons when it comes to decertification, the lack of clear evidence on the outcome makes it a challenging exercise. Decertification is a powerful weapon, but it's largely untested.
"It is far from the silver bullet," said Gabriel Feldman, director of the Tulane Sports Law Program.
At the very least, it could be the threat that makes the owners move closer to the players as talks face another critical turn this week. It's the last bit of offense the players have left. Followed through to its bitter end, decertification could bring millions in damages to the players and result in an NHL without a salary cap, without a draft and more contractual freedom than the players have ever enjoyed. It would blow up the system as we know it and lead to consequences imagined and unimagined. Although it's highly unlikely things would ever advance that far before a deal is struck between the two sides.
The cons? If this turns into a fight in the courts, this season is lost. If it drags out as court cases tend to do, next year would be gone, too. Sure, there's an endgame where the stars in the league cash in, but the NHL's rank and file would be hurt by the lack of a minimum salary, pensions and other benefits that are included in the CBA.
And then there's the big one. If the players lose the court fight, their last bit of leverage is wiped out. Gone.
It's a serious risk.
The NHL, using the same lawyers, still could take a page from the NBA and file a pre-emptive lawsuit that puts the court fight on more favorable turf. Like, say, New York. In filing its lawsuit, the NBA argued that the players weren't negotiating in good faith because "more than two dozen" players threatened to decertify. But NHL players have mostly been careful not to publicly threaten decertification, and the NHLPA declined a request to speak with Fehr about the topic for this story.
All these factors may be why those who are paid well to guide the players on decision-making are split on the issue. An informal straw poll of 10 NHL player agents resulted in four voting yes for decertification, three for no and three deferring completely to whatever Fehr believes is best.
One, who requested anonymity voted no, saying: "I don't think the league is that scared of decertification."
Kurt Overhardt, whose company KO Sports represents players like Mike Smith, Ryan Kesler and Kevin Bieksa, is ready to dissolve the union right now, citing a lack of meaningful negotiation in the current system.
"Because of Gary [Bettman], [NHL labor lawyer] Bob Batterman and [Bruins owner] Jeremy Jacobs, the big three's unwillingness to negotiate in good faith, the players have no alternative," Overhardt said early last week. "The exposure for the owners is dramatic. It's not for one owner; it's for 30 owners. Hopefully, 29 owners wake up and tell the commissioner to do his job. ... Right now, this guy is not acting like a commissioner. He's acting like a czar."
