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Keeping an eye on the CBA talks

NHLPA director Don Fehr hasn't said much publicly about the talks, but his memo to the players was leaked to the media. (Sitthixay Ditthavong/AP)

By Stu Hackel

They went back at it Friday morning, the owners' and players' representatives, after a scheduled 10 AM start in New York. The NHLPA delegation tends to show up late but it wasn't -- not terribly anyway -- this time. We're keeping an eye on the negotiations and updating this blog post as needed with news from the talks and other pertinent information, so check back periodically (the newest entries are on top of the older ones so to read chronologically, start at the bottom).

Saturday, 7:30 PM - Nothing good happens on Fridays so far in these talks and perhaps that is by design. We took note of that last Friday when the NHL cancelled the Winter Classic and mentioned it was on the previous Friday that the league wiped out the November schedule. Then we recited the old public relations maxim that goes, “Always release bad news late on Fridays” because people will pay less attention to it once the weekend rolls around. This Friday, we got the hat trick, as discussed in our update from this morning (below), when the CBA talks were derailed just as they were starting to build a little momentum. Now, instead of a fifth consecutive day of negotiations, the sides were reduced to having a Saturday lunch and deciding whether they can continue bargaining. Well done, chaps.

A day later, deep breaths taken, it's worth looking back on another part of the mess that was Friday.

On Twitter, especially, various journalists, some of whom are rather respected, were tweeting or re-tweeting little nuggets of disinformation without trying to determine their accuracy. For example, the NHLPA, they said, had proposed that the owners honor the full value of contracts even if the league did not play a full season. Not only that, they wanted a five percent increase on top of that amount. The outcry was instant and hostile -- as it should be. The players shouldn't be paid for games they don't play. There was only one problem with those tweets, however: they weren't true. As Don Fehr explained in his press briefing (the video is below), the negotiators were trying to establish what the value of existing contracts would be, and after that they'd be pro-rated based on the number of games that don't get played. Fehr also explained that the five percent figure was erroneous. It was actually less than one percent of HRR, built in to provide some flexibility for the system to allow players to get signed. How did these misunderstandings come about? Who misinformed hockey's Twitter universe that the NHLPA was demanding something that no one in their right mind could support? What was the aim of it?

That was just one of a few flawed themes that were flying around in the early evening, but the ugliest by far was the one based on the leaked memo that Fehr sent to players (at the very bottom of this post). It caught fire when Michael Russo, blogging for The Minneapolis Star-Tribune, cited league sources alleging that Fehr's memo didn't accurately convey the league's position. "The league has been under the impression that the majority of players are ready to get back onto the ice if revenues are split 50/50 and all contracts are honored in full," Russo wrote. "Several players have told the Star Tribune that in recent days. That’s exactly what the owners have offered the players, the sources say, something Fehr did not spell out in his memo."

It's uncertain whether the owners made that charge during the negotiations, but in public afterwards, that got spun way out of control with tweets from various parties alleging that Fehr was not fully communicating the league's offers and withholding information from his membership. That's a very serious charge against someone in his position and one that would damn him in the eyes of the any ardent unionist in any profession. If it had the ring of truth to it for the hockey world, that could be traced all the way back to the corrupt Allan Eagleson reign in the NHLPA and the dysfunction that has periodically followed. Fehr's discreditors prefer to believe that there's a mutation in the DNA of the players association. Except this, too, was false.

There was no misrepresentation other than what the NHL's spin doctors inaccurately alleged about their own proposal. In their eyes, yes, they felt they were offering a 50-50 split of revenues and would honor the existing contracts, but that's not the way the NHLPA read the proposal. Rob Rossi of The Pittsburgh Tribune-Review put the question bluntly to Penguins player representative Craig Adams and published the answer on his blog:

"Q: Do details that are surfacing about the latest NHL offers sound like what you were told on either a call or in a memo?

"A: They didn’t inform us of that (50/50 and contracts honored plus interest) because that’s not true. Owners aren’t willing to make whole every cent plus interest. That’s not true. There are other players in the room when the league makes proposals. I’m not going into specifics of what was said on our call (Friday night), but I can tell you that’s not true. That wasn’t the offer."

Fehr himself stated the NHL's "Make Whole" provision still is far short of honoring the contracts in full. "If the notion is that they are honoring all of the contracts, that everyone is going to be paid everything they're supposed to according to the letter of their contracts, it's, of course, not true and never has been. I don't quite know where that notion came from," he said. The NHLPA estimates it will cost $590-million in extra payments to cover the existing contracts; the league's most recent proposal accounts for $211 million, slightly more than a third of the total. It's a non-starter for the players.

None of that seemed to enter into Friday's cyber-discussion as CBC's Elliotte Friedman, who has a wide range of contacts everywhere in the game, tweeted "NHL is very frustrated by Fehr...they are going after him. The gloves are off now," and until Fehr spoke himself about two-and-a-half hours after the meeting broke up, Twitter was ablaze with charges and countercharges, the root of which once again were in some people not taking the time to check whether what was being alleged was, in fact, accurate, and being much too quick to click the "tweet" button. "We're seeing the worst of Twitter tonight," tweeted The Ottawa Sun's Chris Stevenson, and he was bang on.

Also accurate were those hockey Tweeps who were incredulous -- based on what they knew, and have observed and heard from players themselves -- that Fehr would even be capable of misleading his union; not that he's an angel -- no one in this dispute is -- but because of the way the PA operates. Among them was TSN's Aaron Ward, the former NHL defenseman, who tweeted, "According to multiple player sources, 'the notion that players don't know what's in CBA proposal is a complete fabrication.'"

Chris Botta, the former Islanders PR executive who is now covering hockey for Sports Business Daily, tweeted, "Fairly indisputable: all NHL players have access to updated CBA info more quickly than all the owners of the 30 clubs." USA Today's Mike Brehm published a very small sample of similar tweets here. "I do believe that Donald Fehr is being character-assassinated," wrote Greg Wyshynksi on Yahoo's Puck Daddy blog.

Fehr, of course, nearly laughed off the charges (starting at about 3:30 in the video posted in our earlier Saturday update below this one with his Friday remarks to the media) while once again outlining the transparency under which he operates -- a far cry from the way the NHLPA did business at other points in its history. And after Fehr spoke, Winnipeg's Ron Hainsey defended him as well.

Earlier today on his RDS blog, Renaud Lavoie quoted Mathieu Darche making similar statements about the charges. "Totally and completely untrue. The Players Association has never been more transparent. I hope we talk about speculation here, because this is far from the truth. I think it is outrageous just thinking about it. Don, the staff and the players present negotiations are in contact with all players on a daily basis. I also responded to between 20 and 25 emails, calls or text messages every day this week."

Levoie also tweeted remarks by goalie J.S. Giguerre who said, "We are well informed by the PA. We know what's going on and we are 100% behind Don Fehr and his staff" and "We made concession of 1 billion dollars + and we have nothing in return. This is unacceptable."

You get the idea.

But of all the comments, this one from the Blackhawks' Steve Montador (quoted by CSNPhilly.com's Tim Panaccio) points directly to ownership's frustration with a union leader who does not bend to their will as the source of the charge: "It's clearly a tactic to drive a wedge between Don and the players. It's nothing but a reiteration of how strong we are. It's laughable really, that the league would resort to tactics like this. They locked us out when they didn't have to, and we didn't want it, we've conceded massive amounts of dollars in their favor (this time and 7 years ago) and we say enough is enough, and now this. They're trying anything now."

To be fair, I honestly can't say for certain if this latest attack on Fehr was based on the league actually believing their offer fully satisfied what the players are seeking in a settlement (which would be delusional, but people can be that way) and that he misrepresented it to them; or that it is as Montador says, a conscious attack to divide the players and their leader. But either way, it is -- incredibly -- yet another massive blunder by the owners and whoever advises them on these things, because it most likely backfired and further solidified the players behind their union and its leadership. Even those players who may have been unhappy with the pace of negotiations and were worried about their future have to know how mistakenly the league characterized the way Fehr operates. Those players see the union's workings for themselves and know those allegations are not accurate. All that the league gained is more mistrust and more suspicion on the part of the players.

Maybe that's the way some in ownership want it. Maybe there are those who don't want a deal unless it's totally beneficial to them. Or  there are owners who are willing to bide their time until some pre-determined date when they feel it's more financially feasible to make a deal than lose the entire season. Perhaps by magic all their objections to the NHLPA's proposals will drop away and they will make the best deal they can at that point.

In either case, it's not good-faith bargaining, that's for sure. It's cynical.

In the first part of this post on Friday morning, I quoted The Toronto Star's Damien Cox who called this process, "Math, with some poker thrown in.”

Not on Friday. On Friday, it was war.

That's the original version.

Saturday, 9 AM:

We left off Friday evening trying to figure out what had transpired at the CBA talks. Two things seem to have transpired. The first was that the negotiations stalled again, and it's not at all clear why, especially because -- for the first time -- it seems progress was being made. The second was that the owners have escalated their attacks on NHLPA executive director Don Fehr in an attempt to turn the players against him and divide the union. Let's look into these more closely.

We noted yesterday that the negotiators had not been speaking with any real substance directly to the media this week and, to give you an example, here's Gary Bettman after Friday's meeting, not saying very much.

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“I don't want to raise or lower expectations,” Bettman told reporters. “I won't be happy until we get to the end result and that means we are playing again.”

But Fehr abandoned that practice Friday after our last entry, addressing the media with substance. What he said was, in some ways, quite extraordinary -- although he downplayed it -- and it was unlike anything we've heard since the talks started in July. Fehr said there had been some measurable progress, at least on some issues, although he acknowledged they don't yet have a common approach to what Fehr called "the structure of the deal" which, allegedly, both say they want -- a 50-50 split in Hockey Related Revenue (including the difficult issue of honoring existing player contracts) and the player contracting rights -- free agency, salary arbitration, the entry level system, the bonus structure and such, things the owners want to make more restrictive.

Here's his short press conference:

"Over the last three days," Fehr said, "we made some agreements on revenue sharing and some matters which don't relate to the two core economic areas, the player contracting rights and the share area. To the extent that we were able to make agreements, obviously that's good, but I don't want to suggest those are the crucial things necessary to end the lockout."

And why they can't agree on the core issues seems to have everything to do with the owners continued desire to not bend on anything, not negotiate or compromise at all, which he addressed at the beginning of that video when he said, "We looked at the numbers on the various proposals, and we thought we were much closer together on the structure of a deal than the suggestions (from the NHL) were. They came back to us and said, 'No, we're very, very far apart on the structure of the deal.'" By "structure," he means the share of revenue including the existing contracts, things which at least the sides supposedly agree upon in principle. Fehr goes on from there to say he asked the league "'If the players were to agree -- which they're not prepared to do -- if they were to agree with everything that's in your financial proposal, what you're saying is you still won't make an agreement unless the players give up everything in all the player contracting rights in your proposal.' The answer was 'Yes. That's what we want because that's what we want because that's what we want,' more or less."

There is some question as to whether this is posturing by Fehr, especially in light of his memo to the players (which is in the first entry of this post) which painted a less-optimistic picture of the talks this week. But there were nevertheless positive indicaitons that progress was indeed being made, if only limited, even from Sportsnet's Doug MacLean. The former Columbus president/GM has many sources among ownership and their messages to him have not always been optimistic (as we noted earlier in the week). But on Thursday he tweeted, "The Board of Governors were sent a memo last nite from bettman saying if no traction today, talks could breakdown. Obviously traction today." But that all ended on Friday.

What supposedly transpired to end the meeting Friday is that things degenerated into a shouting match, always a lovely way to end the day (and ESPN-New York's Katie Strang has more on that). The discussion on core economic issues Friday lasted only two hours, quite a contrast to the much longer sessions earlier in the week.

The fact that the sides made some progress indicates things were going well in this weeklong series of talks, which means they were starting to reach understandings, compromise and horse trade, the things sides do in negotiations. Some were optimistic things could get done and there were reports from those who were inside the negotiations that gave those people hope. So why did the progress stop on the core issues, especially considering Fehr believes the two sides really aren't that far apart?

That's not clear at all but one source told Tim Panaccio of CSNPhilly.com "Boston Bruins hardline owner Jeremy Jacobs, who had missed the previous two meetings, returned on Friday and the tone of the discussions changed instantly. Coincidence? Probably not." Jacobs is chairman of the NHL Board of Governors, the most powerful individual on the owners side. When people draw up lists of which owners line up where on the spectrum of lockout supporters, Jacobs' name is always the first on the hardliners side and he's often cited as the one who is driving this lockout bus. Did he dislike like the direction of the discussion when he rejoined the talks and feel it was necessary to resume the hardline stance and torpedo the momentum toward a settlement?

We've got more thoughts here, especially on the wedge the owners attempted to drive between Fehr and the players and we'll share them later on Saturday.

7:30 PM: It's difficult to get a handle on what transpired today, which is not surprising when you consider that the key negotiators do not address the media directly. The idea of that is to not poison the waters and allow the negotiators to focus on the issues. But that idea is not being respected. Instead, like the "Spin Room" after a political debate, surrogates are dispatched to convey messages to various media types and those surrogates, typically, present a one-sided picture of what has gone on. Then Twitter and the blogs explode, we get more heat than light and whether any real progress was made is hard to know. Whatever the justifications for that, it does nothing to bring a settlement closer and alienates fans further from the game.

We'll take a break for the evening, try to sort through all the clutter and make sense of it, then check in sometime on Saturday with more updates.

6:40 PM: John Shannon of Sportsnet tweeted that he's learned there will not be another session tonight.

6:35 PM: Bettman declined to characterize the talks and said they were waiting to hear from the NHLPA about when they will resume discussions. He said he's prepared to meet tonight or tomorrow, "Whatever it takes" including missing the Hockey Hall of Fame ceremonies if need be.

6:30 PM: The latest session of talks ended shortly after 6 PM and it's possible they may resume tonight. If not, it looks as if they will continue on Saturday. So far they've met for about four and a half hours today.The NHLPA has a conference call set for early this evening with the executive board and the negotiating committee to update them on the talks. Katie Strang of ESPN New York tweeted that Don Fehr remarked the NHLPA "has things to consider" and she added, "Sounds like league and union swapped more ideas," although there were no formal proposals submitted today. In the three meetings today, the sides covered "critical dates" (scheduling and calendar items like when Free Agency begins), players' pensions and the core economic issues. Gary Bettman will speak to the media shortly and Pierre LeBrun said on Twitter that a source from the talks told him no real progress was made today.

6 PM: The sides are still talking in New York. The bigger session of negotiators picked it up at 4 PM. There is no sign yet if talks will continue into the weekend and what might happen on Monday. That's the day when the Hockey Hall of Fame induction takes place in Toronto. There was some thought that bargaining would take a hiatus for the event but now there's been speculation that talks might continue on Monday with the Bettmans and Fehrs of the world staying in New York and the ceremonies going on without them. We'll have to wait on that one.

Bobby Orr is in Toronto for an early Hall of Fame event, the premiere at the Hall of a 3D film Stanley's Game Seven, which combines a mix of original live action, computer generated 3D animation, and classic archival footage of some of the most renowned playoff moments in Stanley Cup history, including Orr's famous 1970 Stanley Cup winning goal. Number 4 had some strong words (quoted by James Mirtle of The Globe and Mail) about the lockout.

“They have to accept that responsibility to sit down and get a deal done,” Orr said. “Shame on them if they don’t do that.”

Now a player agent in Boston (so he has a serious interest in these matters), Orr sympathized with arena workers and restaurant personnel who are also losing income as a result of the lockout when asked what might happen if the league lost the entire season. He replied, “How could it not hurt us? I mean, there are the owners and the players, but think about some of the other people. Even the Hall of Fame, they’re being hurt by this. You go to the buildings, the restaurants and so on, the shops around them - it’s more than just the players and the owners. There’s a lot of people hurt by this lockout.

“I don’t know [if there’ll be] long-term damage if we get it going. I think we can get it going. But anytime there’s a lockout, there’s damage. You’ve got to hope your fans come back. I think they will. But to even think about losing a season, that would hurt.”

By the way, here's the trailer for the film, which is showing exclusively at the Hall.

2:30 PM: The afternoon session has begun and it is a smaller group to start with than the morning session and the talks seem to be focusing on the players' pension. It is supposed to expand to more negotiators later.

Back on the hot topic of the day: the leaked Don Fehr memo to the NHLPA membership: the Blues Andy McDonald, former teammate in St. Louis of Jamal Mayers (who tweeted his objection to whoever leaked the memo), tweeted to Mayers, "do we really believe 700 plus players can keep that internal. Union knows that, League knows that. #partofthegame." McDonald is right in that a few earlier memos by Fehr have gotten into general circulation during the last few months. I can't recall the public ever being fortunate enough to see a similar memo from Gary Bettman to the owners.

Nevertheless, my guess is that there's nothing in that memo that the NHLPA hasn't communicated directly to the NHL at the bargaining table or over the phone. For the rest of us, it's provides a window into union's positions and why they take them.

Now that we have that summary of the union's thinking on the talks, it's interesting to read the remarks earlier today from the Penguins union rep Craig Adams to Shelly Anderson blogging for The Pittsburgh Post-Gazette  "The discussions that I have been at or heard about have been good. The tone is good." He added, "We haven't gotten a deal done yet, so I don't want to promise anything....We don't agree on everything, but it feels like we're making progress." Adams attended the Tuesday meetings but was back skating in Pittsburgh today.

1 PM: The morning session of bargaining has ended and the sides will reconvene at 2 PM. There was no immediate word on what was discussed or accomplished. Most of the Twitter buzz had to do with the memo by Don Fehr to the NHLPA membership that an unnamed player leaded to NBC Sports Pro Hockey Talk blog (see below). For example, the Blackhawks Jamal Mayers tweeted "I think it's sad that somehow the media gets access to an internal NHLPA MEMO to players ONLY! It only convolutes the process!" And the media defended itself, Yahoo Sports Nick Cotsonika tweeting, "Some players are upset the Fehr memo was leaked. But we know the league didn't leak it, right?"

It certainly is a big indiscretion in an atmosphere where the sides are trying to keep public communication to a minimum, but there's been leaking and sourcing of all sorts going on for a few days from both sides and if this memo serves any purpose, it was best expressed by David Staples of The Edmonton Journal who tweeted, "Fehr's leaked memo doesn't seem good or bad in terms of ending dispute, just careful not to raise expectations."

11 AM: Most of the buzz heading into Friday's session has to do with the sides remaining far apart on the issues they're discussing. As noted on Thursday, the PA presented proposals on revenue sharing among the clubs and the "make whole" provision to honor existing contracts within the 50-50 split of revenue between the owners and players. The NHL apparently responded and all indications are it wasn't pleased with them. And the NHLPA wasn't pleased with the response from the NHL. It seems that both sides are resubmitting previous offers. But nothing was  dismissed in a matter of minutes as the league did, walking out of the talks in October, the last time the PA made a proposal. Is this progress? Well, yes, it is if they continue to work at their differences and try to hammer out some agreement on them, or if they can figure out some other way to reach an understanding, perhaps accepting something they dislike in exchange for getting something the other side dislikes. That's bargaining and what should have been going on from the outset.

NBCSports.com's Pro Hockey Talk blog has obtained a copy of the memo Don Fehr sent to the players after Thursday's session (provided by a player, as PHT's Mike Halford reports) and it provides an excellent overview of the what transpired from the PA's perspective and where the union sees the hang-ups as talks go forward. Here is the text:

Today, we met with the NHL off and on over several hours.  A number of matters were discussed, including our proposal for a new pension plan, revenue sharing, the players’ share and salary cap issues, and the owners’ “make whole” concept.  Present today were Chris Campoli, Mathieu Darche, Ron Hainsey, Johan Hedberg, Manny Malhotra, and Kevin Westgarth (David Backes was present for part of the day), as well as Mathieu Schneider, Joe Reekie, Steve Webb and Rob Zamuner.   

No new proposals were exchanged on pension issues, but we will discuss this issue again tomorrow (Friday). We did receive a proposal on revenue sharing in response to the proposal we made this week, but this subject still needs considerable work. 

In addition, we received a revamped proposal covering players’ share and cap issues, their so-called “make whole”, and player contracting issues.  The owners finally did formally give us their “make whole” idea, which in dollar terms is similar to the discussions Bill Daly had with Steve Fehr a few days ago.  While a step forward, a significant gap remains.  Moreover, at the same time we were told that the owners want an “immediate reset” to 50/50 (which would significantly reduce the salary cap) and that their proposals to restrict crucial individual contracting rights must be agreed to.  As you know, these include – among other things – losing a year of salary arbitration eligibility, allowing the team to file for salary arbitration in any year that the player can file, extending UFA eligibility to age 28 or 8 seasons, limiting contracts to 5 years, and permitting only 5% year to year variability in player contracts.   Individually each is bad for players; taken together they would significantly reduce a player’s bargaining power and give the owner much more leverage over a player for most if not all of his career.   

In short, the concessions on future salary we have offered (at least $948 Million to $1.25 Billion over five years, depending on HRR growth) are not enough.  We are still being told that more salaries must be conceded, and that very valuable player contracting rights must be surrendered.  So, while we are meeting again, and while some steps are being taken, there is still a lot of work to be done and bridges to be crossed before an agreement can be made. 

We will review today’s discussions over night and tomorrow morning before meeting again with the owners. Following our meeting tomorrow with the league, we will be able to provide a broader update.

As always, please contact us if you have any questions or comments.

Best regards.

Don

As Halford writes, "Despite the letter’s somewhat pessimistic tone, there are signs for optimism. Talks have yet to break off — the NHLPA and NHL have met for over 17 hours over the last three days."

Some in the media have remarked at various points this week that this is a critical moment in the talks and the season hangs in the balance. Damien Cox, blogging in The Toronto Star, has an opposite view: "(What) you have to avoid is believing that we are at a critical stage, or at the brink, or that D-Day is upon us, or any of the terms bandied about to suggest the talks are at a pivotal moment. They're not," he writes. "The 1994-95 lockout was ended on Jan. 11. The 2004-05 season was cancelled (finally) on Feb. 16, and there were even talks after that. We're not even in mid-November yet. Given history, how can anyone possibly say we're at a make-or-break point? That's just phony drama, mostly generated by the media, with little basis in fact.

Right now, both sides are bleeding, and both are assessing on a day-to-day basis how much more they want to bleed, and measuring their losses against the possible gains, and calculating how far they can push the other side for maximum advantage. That's all this really is at this point. Math, with some poker thrown in."

Here it is live in '89 with Clarence Clemmons on sax.

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