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NHL urges appeals court to side with NFL


With the entire union-management approach to professional sports under assault after the NFLPA decertified and sued the league for antitrust violations when faced with a likely lockout, one of the other major sports leagues (some would dispute the term “major”) has filed a brief in support of the owners’ position that Judge Susan Nelson’s order lifting the lockout should be overturned.

The National Hockey League has filed an “amicus curiae” brief, Latin for “friend of the court.” It’s a common device used when a party has no stake in a given situation, but when the party feels compelled to chime in due to the possibility that the party’s interests could be affected adversely by the eventual ruling.

And the NHL, the NBA, and Major League Baseball could all be affected adversely if the U.S. Court of Appeals for the Eighth Circuit endorses the legal strategy that the NFL players have unleashed.

Explains the NHL at the outset of its submission: “The National Hockey League (‘NHL’) has a direct interest in ensuring that the determination of terms and conditions of employment for NHL players is the product of a bona fide labor process rather than the ‘lever’ of potential antitrust liability. This is especially true in the context of the stable and mature collective bargaining relationship that the NHL and the National Hockey League Players’ Association (‘NHLPA’) have had for nearly 45 years. Yet, under the district court’s decision and rationale, a group of employees can, at any time and for any reason, insinuate the antitrust laws into the dynamics pursuant to which new terms and conditions of employment are negotiated and determined. All a union has to do is have its members ‘disclaim’ union representation, simultaneously reconstitute itself as an employee ‘association,’ and then ask the court to immediately enjoin any joint labor activity of the employers (e.g., including the implementation of a lawful lockout) by filing a treble damages antitrust complaint and a motion for preliminary injunction. The NHL respectfully submits that this cannot be the state of the law.”

There’s a lot more that follows, but it’s all fairly predictable. The NHL is focusing on principles of federal law that, from the naturally skewed perspective of a sports league, prevent a union when faced with a lockout from shutting down the union and filing an antitrust lawsuit.

Though NFLPA* spokesman George Atallah pointed out via Twitter the irony of the NHL’s involvement in this matter, given that NFL labor counsel Bob Batterman engineered a lockout that once wiped out a full season of pro hockey, Batterman’s firm didn’t submit the brief. Instead, the brief was drafted by Shepard Goldfein, James A. Keyte, and Elliot A. Silver of Skadden Aarps Slate Meagher & Floam’s New York office. That said, it’s entirely possible that Batterman encouraged the NHL to speak up in support of the NFL, before the NHL end facing a similar problem. The other pro sports leagues probably should have done the same thing.

And when the players respond to the league’s brief in support of its appeal, the other professional sports unions should submit briefs echoing the arguments in support of the ability to shut down a union and assert antitrust liability.

As to the brief submitted Monday by the NFL, I’ll be taking a closer look at it tomorrow and sharing my thoughts regarding the league’s initial arguments aimed at keeping the lockout in place indefinitely.

For the five of you who care about such details.