Some people are speculating that the NHL owners really think of NHLPA leader Donald Fehr as a kind of intractable bogeyman who must be worked around, not with, if a new CBA is to be reached. (Photo by Sitthixay Ditthavong/AP)
By Stu Hackel
If the NHL owners hoped to get the NHLPA to reconsider their most recent offer, they may have just -- by blunder or intention -- pushed the players further away.
Tuesday, on the eve of the NHL's deadline to reach a deal to save a full 82-game season, the owners rejected an invitation from the players to resume negotiations. "That is unfortunate as it is hard to make progress without talking," said NHLPA special counsel Steve Fehr.
And last week, without telling the NHLPA that it was doing so, the league permitted club executives to speak to players about their offer presented a week ago Tuesday.
A gag order against commenting publicly about the lockout and the CBA negotiations has been in place for all NHL personnel. Additionally, players and their teams are normally prohibited from having any contact during a lockout, which is why players cannot use their teams' facilities and interact with coaches. It's a precaution the league takes because certain discussions of the issues in the dispute can be illegal, so it's best to avoid contact completely.
But for a 48-hour period last week, the NHL allowed the clubs to communicate with the players, within certain guidelines that did not violate the law. (Yahoo! Sports obtained the league office's memo to the teams and part of it has been published on the Puck Daddy blog.) The stated idea was to answer questions that the players might have about the offer and permit team execs to express their views and opinions of it.
"The NHLPA is, in fact and in law, the sole collective bargaining representative of the Players. Any effort to motivate the Players must be to have them act through their union, not instead of or in opposition to it," the memo stated in part. "YOU MAY NOT: 'Negotiate' with a Player.' This means you may not explore alternatives or variations to the proposals on the table. As a matter of labor law, you are permitted to express the views and opinions of the Club and the League concerning the proposal."
Additionally, Kevin Allen of USA Today published other excerpts that include more specific guidelines.
"The attempt (at communication) — right or not — is being viewed as an end-around on executive director Donald Fehr," writes The Sporting News' Sean Gentille. "The move annoyed the NHLPA, and considering that Thursday's league-set deadline for saving a full schedule approaches with no meetings scheduled, that's not a good thing."
This revelation of league sanctioned club-player contact was first uncovered by Dave Morissette of the Quebec television network TVA and confirmed by his colleague Jean Louis. It came on the heels of the NHL negotiators' quick dismissal of the NHLPA's three counter-proposals and equally quick exit from Toronto, scene of last week's most recent negotiations.
Steve Fehr, the NHLPA special counsel, explained the incongruity of what the league attempted by allowing club executives who have not been involved at all in the negotiations to answer players' questions about them. "Most owners are not allowed to attend bargaining meetings," he said in a released statement. "No owners are allowed to speak to the media about the bargaining. Interesting that they are secretly unleashed to talk to the players about the meetings the players can attend but the owners cannot."
Deputy Commissioner Bill Daly has been downplaying the whole episode. He told the AP that it was not illegal and called it a "non-issue and a non-story," but what's he going to say? Something like, "Hey, this was probably inappropriate and we really shouldn't be making the other side angry if we're also tying hard to make a deal with them"?
Don't think so.
The union's worst suspicion, of course, is that team execs might have used the 48-hour window to make the players have second thoughts about their so-far staunch support of the NHLPA or, worse, urge them to change their position. That sort of direct discussion is prohibited by law, as the league's memo points out. But unless a player came forth and accused his club of a violation -- and how likely is it that he would drop a dime on his team? -- there's little way of enforcing the rule.
Regardless, the union can't be happy and the trust factor between the two sides, already pretty low, has probably sunk appreciably lower. We've mentioned in a previous post the various tactical blunders the NHL has made in these negotiations, but we've also recognized that Gary Bettman is a very shrewd negotiator. One has to wonder if, in fact, the NHL's frequent apparent missteps might not be blunders at all, but intentional ploys designed to drive the two sides further apart. We generally have assumed that the league wants to make a deal and, as many observers and even some labor experts have pointed out, there seems to be one that can be made now that both sides have roughly agreed on a 50-50 split in revenue.
But what if the owners -- led by their hardliners -- have concluded, despite their claims to the contrary, that their interests would be better served if they were to not make a deal, repeating the way they acted in 2004? John Shannon of Sportsnet posted a very interesting piece on Saturday delineating all the machinations the NHL has gone through because of their fear of Don Fehr. Shannon concluded that even though the NHLPA's executive director has changed the game's labor relations, Fehr still has to deliver a contract to his members or he will have failed. Does the NHL feel not negotiating a deal is a way to weaken a leader who has stood up to them?
That would explain any number of strange things that the league has done until now, starting with its first unacceptable offer to the players.
It's hard to know for sure what the strategies of each side are. The league has accused the NHLPA of slowing the negotiation process, and that very well could be true. (Pat Leonard of The New York Daily News has a very good piece on that which is recommended reading.) But might the same thing be said about the owners?
New Jersey Devils President/ GM Lou Lamoriello probably expressed the wishes of many in the hockey world when he suggested his solution for ending the lockout to Mark Everson for Tuesday's New York Post: “Maybe we should do like they do with juries. Lock them in a room until they reach a verdict.” He's clearly not interested in any strategy that would keep the lockout going.
The problem is that the representatives of the owners and players have to agree to be locked in a room to get a deal done, and the people they represent have to authorize that sort of bargaining. Unlike a jury trial, there's no judge in sight to order them sequestered for the duration.
That's why the lockout landscape remains bleak. Even though a number of journalists and other observers are convinced that a deal could be forged in the near future, maintain that now is the time to do it in order to save the season and have even forwarded suggestions about how to get there, none of that has much of an impact. All that really matters are the respective perspectives and wills of the negotiators and, right now, those perspectives aren't changing and there is no willingness on either side to move off the positions that have currently been staked out.
The memo on club-player contact isn't going to change that. Nor is the owners refusal to negotiate.
"This is simply inconceivable in an industry that continues to spin record revenue, despite a world economy that remains stuck in a recession," writes David Shoalts in The Globe and Mail. "After seven years spent pulling its business out of the periphery of the professional sports industry, these people are acting like they don’t care if the NHL drives away enough fans to once again make it a fringe league."
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