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.
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