Two-thirds of the union's membership must vote in favour before the board can file a "disclaimer of interest," according to a source. Disbanding the NHLPA would give players the chance to challenge the legality of the lockout in court and file anti-trust lawsuits against the league.
The voting will be conducted electronically over a five-day period that ends Thursday. Should the 30-member executive board be given the ability to file a disclaimer, it would have until Jan. 2 to do so.
The vote is a sign that the NHLPA will continue moving towards dissolving itself — something unions representing NFL and NBA players did in labour disputes last year — even after the NHL started mounting a pre-emptive legal challenge against it.
On Friday, the league filed a class-action complaint which asked a federal court in New York to make a declaration on the legality of the lockout. In the 43-page complaint, the NHL argued that the NHLPA was only using the "disclaimer of interest" as a bargaining tactic designed to "extract more favourable terms and conditions of employment."
"The union has threatened to pursue this course not because it is defunct or otherwise incapable of representing NHL players for purposes of collective bargaining, nor because NHL players are dissatisfied with the representation they have been provided by the NHLPA," read the NHL complaint.
"The NHLPA's threatened decertification or disclaimer is nothing more than an impermissable negotiating tactic, which the union incorrectly believes would enable it to commence an antitrust challenge to the NHL's lockout."
The NHL also filed an unfair labour practice charge with the National Labor Relations Board.
The union was quick to respond with a statement on Friday night that suggested the league was overstepping its bounds. At that point, it had yet to even be served with the lawsuit.
"The NHL appears to be arguing that players should be stopped from even considering their right to decide whether or not to be represented by a union," it read. "We believe that their position is completely without merit."
By filing the class-action complaint in New York, the NHL guaranteed that the legality of the lockout would be decided in a court known to be sympathetic towards management. If the NHLPA files for a "disclaimer of interest" it will seek to have the work stoppage deemed illegal — something that could see players paid triple their lost salary in damages if successful.
Despite the focus of the lockout shifting from the board room to the courtroom, there is nothing preventing the sides from continuing to try and negotiate with one another. They met separately over two days with a U.S. federal mediator this week in New Jersey but failed to make any progress.
Just eight years after becoming the first North American sports league to lose an entire season to a labour dispute, the NHL appears to be in danger of seeing another one go by the wayside.
Players have already missed five paycheques during a lockout that enters its 14th week on Sunday. More than 500 regular-season games through Dec. 30 have been wiped off the 2012-13 schedule.
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