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NHL Lockout Watch 2012: Negotiations as of November 28

Mediation and decertification explained.

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Two recent buzzwords of the NHL lockout are "mediation" and "decertification."

The NHL and NHL Players' Association are meeting with mediators this week.

Meanwhile, assorted players have suggested that the NHLPA might decertify as a way to end the lockout without a new collective agreement.

While I claim no legal authority, here's a plain-English summation of each process.

Mediation

The NHL and the Players' Association agreed to bring in federal mediators for a negotiating session that began November 28.

The session reportedly includes two representatives from the Federal Mediation and Conciliation Service, an independent government agency.

So how can they help?

First, let's clarify the difference between mediation and arbitration.

Simply put: an arbitrator has authority, a mediator does not.

An arbitrator hears from both sides and renders a binding decision.

A mediator hears from both sides, considers the dispute from all angles, shuttles back and forth, and seeks possible inroads to bring the parties closer together. A mediator cannot impose a settlement or any part of it.

(Your About.com Guide to U.S. Business Law has a more detailed explanation of the differences between mediation and arbitration.)

The process has seen mixed results in pro sports. In 2011, the NFL and NBA brought in federal mediators to help end lockouts.

In both cases, mediation ostensibly failed. But in both cases, the two sides reached an agreement within weeks of the exercise.

So perhaps mediators can help move NHL players and management towards common ground, even if success is not immediately apparent.

Negotiations that involve mediation are usually accompanied by a media blackout.

Decertification

Decertification is often described using dramatic metaphors like "hand grenade" and "nuclear option" because it's an extreme tactic.

It would essentially mean that the NHL Players' Association dissolves itself, leaving all players as individual contractors with no collective representation.

Without a union, there can be no collective agreement. Without a collective agreement, the NHL is open to antitrust lawsuits.

Antitrust laws prevent competing businesses from colluding to fix or restrict the marketplace.

A sports league like the NHL is exempt because employees agree to certain market restrictions when they approve a collective agreement.

Without such an agreement, any regulation that governs competition between between the 30 NHL teams could be declared illegal in court.

That means the salary cap, the NHL Entry Draft, free agency rules, entry-level contracts, the current lockout... all could be found in violation of antitrust law.

Successful antitrust suits can also result in multimillion-dollar damage payments made by employers.

In a decertified world, the marketplace for players could eventually end up completely free and ungoverned.

But that could also mean no player pensions, no benefits, no health and safety protocols, and so on. NHL teams would no longer be obliged to uphold collective standards in those areas.

Decertification is a complex process with many legal niceties and any number of possible twists.

For example, the NHL could go to court first, filing a lawsuit against the NHLPA if it sees decertification on the horizon.

(The NBA did this in 2011, claiming the players were using decertification in bad faith.)

For either side to follow through on the decertification/antitrust option would almost surely result in a protracted courtroom battle that could remake the entire economic system of pro hockey.

Most observers are guessing that NHL players have begun using the "D" word in hopes that the threat will be enough to get the league back to the bargaining table, ready for a deal.

Details gathered from assorted media sources.

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