Boom! goes the decertification

At this point of the proceedings, why not toss a small nuclear device into the works?

Things have gone so swimmingly between the NHL and its locked-out players that to be talking about decertification -- a strategy described by various legal experts in terms ranging from "AK-47" to "incendiary device" to "nuclear weapon" -- seems about as logical as anything, given the lack of logic at play so far.

In a process marked by a startling lack of grace and civility, many players are now clamoring for a move that has the potential to level the NHL and leave it in tatters, pending the various outcomes that decertification represent.

In short, and in the wake of a failed attempt at mediation, it is the ultimate act in a play whose main characters have been anger, mistrust and disrespect.

"The failure of mediation is a reminder that a deep divide exists between the sides," Ottawa-based sports lawyer Eric Macramalla told ESPN.com on Friday. "Given that deep divide, and in the eyes of the NHLPA, a failure to make any significant progress, decertification is a real option for the NHLPA."

There are a couple of routes the players' association could travel. They could file a disclaimer of interest that would see NHLPA executive director Donald Fehr inform the league that the union no longer represents the interests of the players, or they could go the full decertification route, which involves polling the players to ensure support of the strategy. Some experts believe the disclaimer of interest is more expedient but more susceptible to a legal challenge from the NHL.

Either way, the results are the same. Essentially, the union will argue that the very raison d'etre of the NHLPA has run aground, given the bargaining position of the owners and that the union needs to be imploded, struck down. Such a move would allow players, no longer existing within the bubble of a collective bargaining agreement, to file antitrust suits.

Those courts could rule in favor of the players' case and strike down the lockout as illegal and, barring a rapid settlement, provide the players with huge punitive-damage awards.

The strategy worked to varying degrees for both NFL and NBA players, as the owners in those leagues were prompted by the threat of decertification to quickly broker deals to end labor disputes in those sports last year.

It might work for the NHLPA.

Or it might not.

If the NHL digs in its heels and goes to court to challenge the decertification -- surely the stubborn nature of commissioner Gary Bettman and his top owner, the often-vilified Jeremy Jacobs of the Boston Bruins, should act as a guide to how this might unfold -- then you can start with the certainty that any thoughts of hockey this season would evaporate.

Next season? Or the season after that? Who knows?

Anyone who suggests they know how decertification might play out should the players choose this strategy is flat-out lying.

"There is no road map, per se," said Macramalla, a partner in the Gowlings national law firm. "Decertification is profoundly dramatic."

If the players do decertify and are successful in arguing the lockout is illegal, they could be in line for triple the damage payouts in an antitrust suit. So what then?

How many teams would survive a lengthy court battle and subsequent damage payments?

What kind of league would remain for the players?

Similarly, if the NHLPA does venture down this road and loses a protracted court battle, then they will have finished the job started eight years ago when the players' association was left in disarray after capitulating during the last set of negotiations.

And yet, in the absence of any real traction toward a new CBA, there is growing pressure on NHLPA executive director Donald Fehr to not just explore decertification as a strategy but begin what would be an end-game strategy one way or another.

"Decertification takes this from being a battle to a war," he said.

If the two sides do get to court on this issue, it will take a significant amount of time to decide and the results could be seismic in terms of potential damage awards, to say nothing of the legal costs incurred by both sides.

The monetary awards in an antitrust case "can be catastrophic," Macramalla said.

How on earth did we get to this point?

In many ways, decertification is the ultimate act of an angry group, a group of players that believes in its heart of hearts the owners aren't just bargaining a position but bargaining to destroy them.

That the atmosphere surrounding these negotiations -- such as they are -- has been poisonous from the moment the owners presented their first hard-line offer in mid-July is undeniable.

Macramalla agreed that from that moment when the owners presented a veritable wish list of demands disguised as a bargaining proposal, the level of mistrust -- a key factor in resolving any labor negotiations, he said -- was fractured.

In between, the owners have enraged players by examining three proposals for about 10 minutes before walking out. They have taken the last player proposal -- a significant piece that should have formed the framework of something on which to build a deal -- and dismissed it as unworkable within a couple of hours of its presentation.

They were part of a federal mediation process that lasted all of two days.

Many of the "concessions" made by the owners have come from modifying their first lowball offer, another ploy that continues to upset the players.

Talk to players and union officials in the rooms where the two sides have met and they describe a dismissiveness that has made give-and-take discussions almost impossible.

Big deal, right? This is a negotiation, it's not patty-cakes.

Still, let's go back to last July.

The NHL was coming off five years of record revenues. Yes, tweaks needed to be made to the system, mostly borne from loopholes and mistakes made by the league during the last round of talks when, oddly enough, the owners got pretty much everything they wanted.

But what should the absolute imperative have been when talks began in the summer?

Keep the gravy train rolling forward.

Do not under any circumstance have a repeat of the disaster that was the lost season of 2004-05.


Make no mistake, the lack of civility and grace cuts both ways here.

The union fiddled around and declined to bargain for months, citing various flimsy excuses reinforcing the NHL's view that new executive director Donald Fehr was here to exact vengeance from the last go-round, not do a deal.

When the players presented their three proposals earlier this fall, Fehr hadn't bothered to run the numbers on one of them to see how it might work.

There were complaints to the labor boards in Alberta and Quebec and, more recently, a letter to Canada's federal politicians explaining in part how mean the NHL had been to them.


And so instead of moving to defuse the growing anger and resentment present in the talks, the two sides have continued to poke at each other even as they appeared to edge closer on key issues, such as the split of hockey-related revenues and the issue of owners honoring existing contracts.

In the past couple of weeks, Ian White has called Gary Bettman an "idiot" (he later told CBC he was sorry) and Kris Versteeg called Bettman and deputy commissioner Bill Daly "cancers." Some moron on Twitter asked Chicago's Dave Bolland to re-tweet a post wishing aloud that Bettman was dead and Bolland did so. Bolland told ESPN.com's Pierre LeBrun he had done so by mistake; still, come on.

Is it any wonder the public and, more recently, key sponsors, turn away, sickened by the entire process?

And so decertification becomes the ultimate act of anger from a group that feels it has nowhere else to turn.

How pathetic is that?

Two sides in a rush to burn down their own house with all their belongings inside.

Maybe the mere threat of such a potentially devastating move sparks the types of resolutions we saw in the NBA and the NFL. But if this lockout has taught us anything it's that the obvious path, the right path, has been one that has been studiously avoided by both sides.

So maybe decertification isn't just the logical next step but exactly what both sides deserve, a leveling of the landscape.

So, bring it on.