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Of Federal Mediation and Decertification

The collective bargaining talks between the NHL and the NHLPA have reached a stalemate (again), so a little help has been brought in the form of federal mediation.

The Federal Mediation and Conciliation Service is an independent US government agency that actually specializes in labour negotiations. The director of FMCS, George H. Cohen, actually participated in the NBA and NFL lockouts.

The league has sought this sort of assistance before, but it didn’t exactly work out. The 2004-2005 lockout wasn’t prevented, even after the NHL and NHLPA allowed federal mediators to help out, so there’s really no reason to be overly optimistic about their insertion into these proceedings.

“While we have no particular level of expectation going into this process, we welcome a new approach in trying to reach a resolution of the ongoing labour dispute at the earliest possible date,” deputy commissioner Bill Daly said Monday.

The mediators are Scot L. Beckenbaugh and John Sweeney, according to TSN. They will meet with both sides separately on Wednesday to establish some foundation details and to get acquainted with the respective sides.

In an interesting twist, Commissioner Guy Serota was also expected to be part of the process. Unfortunately, some controversy over his Twitter feed caused his removal from the case (and the temporary removal of his Twitter account, which the FMCS alleged was “hacked”).

“Within one hour after I issued a press release…it has been called to my attention that there are issues involving an allegedly hacked Twitter account associated with Commissioner Guy Serota, one of the mediators I assigned. Accordingly, in order to immediately dispel any cloud on the mediation process, and without regard to the merits of the allegations, I have determined to take immediate action, namely to remove Commissioner Serota from this assignment,” said a statement from Cohen.

The mediators are non-binding, which means that the CBA negotiations are not tied to their decision. The mediation team can make suggestions, but nothing they say or do needs to be followed by either side.

The timing on this is key, as the NHLPA has been tossing around a little something known as decertification lately. The union is tagging decertification as a last resort at this point, but it is on the table and it could be the “nuclear missile” the players have in their back pocket. The NBA tried decertification a year ago and effectively dissolved the labour union into a trade association. A few weeks later, the new CBA was ratified. A week before the deal, the union re-formed.

So decertification, the process to dissolve the union, would remove a few of the union’s protections in these negotiations. But not being in a union would mean that the players have some powers that they didn’t have before, like an ace in the hole in the form of an anti-trust lawsuit. As long as the CBA negotiations are going on between two interested parties, these sorts of suits are off the table. But without a union and without formal negotiations, everything’s in the game.

It could theoretically backfire for the players, but it could shake up the owners enough so that they might move more on some fronts than they would have. And if the lockout is found to be a violation of American antitrust law (it very well could be), the players could get way more in damages based on their daily losses.

If the players are going to decertify, they should do it soon if there’s any hope of saving hockey at all this year. The process takes a while, but, as the NBA players discovered, it can work and get a good deal done to save at least some of the season.

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