Special contribution by Jacob Zelmanovitz, Lawyer - @lawjz
Well it’s happened again, the lawyers have muddied the already murky lockout waters some more, and the PA’s attorneys have filed a motion with the Manhattan court today asking that it throw out the League’s lawsuit. The timing of the motion is interesting, coming the day after the union’s executive committee's authority to disclaim had lapsed, but more on that later.
The motion essentially makes two arguments, (1) that the league’s lawsuit was filed prematurely and (2) it is an improper attempt to win the race to the courthouse.
On that first point, the union makes the obvious arguments – it hasn’t disclaimed yet, and it may not disclaim. Courts cannot pass judgment on hypothetical questions; it’s like asking a boxing judge to decide now who’d win in a fight between Manny Pacquiao and Floyd Mayweather.
As the legal brief says, there are too many ‘ifs’ in the league’s complaint: The league wants to court to decide what happens if a majority of the players vote to authorize the NHLPA to disclaim, and if the NHLPA decides to exercise such authority, and if individual players decide to then sue the NHL under the antitrust laws, and if those players ask that the lockout be declared illegal.
And here’s where the timing of this motion come to play: while the first of those ifs did happen – the majority of the players did vote to authorize the NHLPA to disclaim – none of the others have. Furthermore, the union argues, there must be a non-hypothetical question at the time the lawsuit was commenced. Recall that the lawsuit was filed shortly after we learned that the union was going to vote on disclaimer, but before the voting was anywhere near done. And now, on January 3, 2013, we know that this vote was a false alarm, and the union did not disclaim. So, the union argues, the point is moot and why bother with this lawsuit?
Now that last rhetorical question has an easy answer, and it leads to the second argument mentioned above, that this is all a ploy by the league to get the case heard in a court thought to be more sympathetic to the owners. Essentially, the union is saying that in the race to the courthouse, the League cheated and took a head start.
This reads to me as a play to judges’ frequent distaste for these races to the courthouse, or "forum shopping" as attorneys call it. By timing this right, the union has shown that the main 'threat' that the league relied on, the union’s vote to authorize disclaimer, was not really a threat, as nothing came of it. Now that such a vote, the first of the 'ifs' listed above, has been shown to be meaningless in the conflict between the NHL and the union, the union might now better argue that the second 'if', actual disclaimer, is similarly inconsequential, and so not deserving of the court's attention. In fact, they will likely argue that the only time a court should intervene is if and when the last of those 'ifs' happen and a player tries to have the lockout declared illegal by filing a lawsuit.