What next after CBA talks disaster?
By Stu Hackel
They won't be talking this weekend, but in the aftermath of the CBA train wreck this past week, the NHL and the NHLPA now have to go about the business of picking up debris and trying to reassemble it into, well, something.
Right now, this mess isn't going anywhere and with all the ill will, it's anybody's guess at the moment what that something will be, what shape it might eventually take. Red Light habitually shies away from making predictions -- a good practice, especially when it comes to these talks, as the most recent events remind us.
Taking into account the herky-jerky character the negotiations have assumed, it's best to keep our expectations low. That said, here are a few possible plot lines for what might lie ahead.
Scenario 1: After a brief cooling off period, the owners and players will get back to the table and try to hammer out a deal. Gary Bettman's fuming retort aside, Don Fehr was not wrong to say that the sides are closer to a deal now than ever after this week's negotiations -- if the owners restore what they swiped off the table on Thursday evening.
Pat Leonard in The New York Daily News looked at many of the main points in the dispute, where they stood before the NHL withdrew them, and concluded that the sides had resolved the revenue split, had tentatively settled the player pension issue, were close to resolving the length of the CBA, contract variability, and the misnamed "Make Whole" provision (what the NHLPA calls "transition payments"), and had moved closer on the maximum length of individual contracts, but were still apart on compliance issues.
Now, things fell apart because the owners have dug in and don't want to meet the union's movement toward them on the length of the CBA and individual contract length. In his blog post about where each side is on the major issues EPSN.com's Pierre LeBrun writes, "Bettman said the offer was off the table, but the reality is, if the players next week are willing to play ball with what the league proposed, that deal is still available. What the players have to figure out for themselves is whether waiting this out longer will help them get more. There’s no question the patience that Fehr has preached to his membership has paid off, the best example being the owners moving from $211 million to $300 million in make-whole."
LeBrun believes that the players should take the offer as it stands and when it comes to getting this over with, that makes Scenario 1 is the best case. But, depending on the mood among the players, it may not be the most likely.
Scenario 2: We see a quick resumption of talks, but the players try to get the owners to move off the issues on which the league says they won't budge, like the lengths of the CBA and individual contracts. While there are no doubt players who want to take the deal if it's back on the table, there may be more who want ownership to move more in their direction, believing that the union has already given enough. The players have remained quite strong and unified as a group thus far, confident that when they hear each side's lead negotiator say their side has been the one that has done the most to reach a deal, it's Fehr who is being more truthful.
In her interesting new piece for Grantland on the CBA negotiating tactics, Katie Baker writes, "For all the sound and fury, it seems clear the question of who will come out ahead in this deal has been settled: Almost all of the meaningful movement to this point has come from the players' side. They agreed to a 50-50 revenue split, down from the 57 percent they have been receiving. They budged on contract term limits and the length of the CBA (though not far enough to satisfy the NHL; those issues are two of the remaining sticking points). They submitted, implicitly, to the idea that teams may not wind up paying in full all the contracts that their front offices offered and inked — some of them just weeks before the expiration of the last CBA.
"By comparison, the NHL hasn't yielded much of anything. Some of the items on which the league considers itself to have compromised — arbitration rights and the parameters surrounding free agency, for example — are merely remaining unchanged from the last (already owner-friendly) CBA. Others aren't exactly generous: One of the league's biggest concessions to date has been its willingness to create a "make whole" fund that would help ease the transition down to a 50-50 revenue split from 57-43 — meaning the NHL has grudgingly agreed to pay some, though likely not all, of the salaries it contractually owes.
"So when considering this whole unholy mess, it's worth remembering that when the NHL talks about how far it has moved toward the middle in these labor discussions, it's not really in terms relative to the status quo, but rather in comparison to the lowball-y offer the league opened negotiations with back in July."
Baker adds, "If the NHLPA is guilty of trying, a bit disingenuously, to make the league look like the bad guys by overemphasizing just how close everyone is, the NHL has damaged its credibility too: by saying time and again that they are making a final, take-it-or-leave-it, we-can't-do-better-than-this offer — and then, weeks later, doing better than that."
It's up to Fehr and the players to figure out if the league can move further toward them or if it is truly dug in. It's a conceivable route for the talks to take, but it likely won't mean a quick resolution to the lockout. It might lead to a deal or it may put us right back where we are now with less time remaining on the clock before the season is canceled.
Scenario 3: Let's say Thursday's wild scene has angered everyone so much that the cooling-off period is not so brief. Bill Daly doesn't return Steve Fehr's phone calls, and doesn't even leave him any more voice mail. And even if they talk, there's no desire for a resumption of formal negotiations. A few weeks go by as the owners try to sweat the players, raise the level of their uncertainty by having the clock tick down to Doomsday and the cancellation of the season. The idea behind that would be for the owners to pressure the union into folding, and push Don Fehr to come crawling back to the league and say, "We'll take your last offer and live with those items you won't move on."
Of course, at that point, knowing that he had the upper hand, Gary Bettman could respond with, "Forget that," and reduce the owners' offer even further. Would the players concede in such a fashion? It depends on how strong they are in their convictions and how long they, as a group, can hold on to them.
Right now that doesn't seem to be a likely scenario. It's certainly not impossible. It would be the owners' dream and they may try it. But apart from some isolated Roman Hamrliks and such, the players have not shown many overt signs of caving and Don Fehr doesn't do the crawl. (For some interesting and illuminating background on Fehr, here's a Sports Illustrated profile from his days as head of the Major League Baseball Players Association.)
Scenario 4A: It's possible that the owners and players will get back together, but diddle around and hold out their best offers until the last possible moment, playing brinksmanship until the eve of cancellation. Then someone blinks and the deal gets done.
Scenario 4B: They play brinksmanship and neither side blinks, meaning a deal doesn't get done. It's not impossible.
While observers like me wring our hands and fret about the extensive damage being done to the game, Bettman has a slightly different approach. Asked on Thursday if he was concerned that a deal isn't reached, some franchises might be put in jeopardy, he replied, "My bigger concern is that if we make the wrong deal here, there are more franchises in jeopardy."
The fear of making "the wrong deal" is, perhaps, the biggest factor driving each of these parties. Twice before, Bettman has previously locked out the players and then claimed victory. And twice before, the workings of the CBA had the owners spending more on players than they wanted to. (Of course, they'd be happiest spending nothing). He can't win the negotiation and lose the CBA a third time.
(UPDATE: Eric Duhatschek in The Globe and Mail wrote about this phemonenon in his Saturday story. His contention is that this is the way it always goes and the way it will go again, writing "The players will win because the minute the ink is dry on a new collective agreement, agents and general managers will find clever ways to circumvent the spirit and language of the new deal....That’s not going to stop Bettman and Daly from trying to plug the most costly and egregious loopholes. It’s simply their way of trying to protect the owners from themselves, and the main reason Daly described contract term limits as 'the hill we will die on' as negotiations ground to a halt again.")
And Fehr knows he's already had to make all sorts of concessions. He can't close a deal that surrenders so much that it causes his members to wonder what was the point of forfeiting so many paychecks and so much playing time. So, yes, the standoff could continue beyond the point when the schedule can't be played. That is one worst-case scenario. There is one that is equally, if not even worse, than 4B, however, and that is...
Scenario 5: It's the one I hope has no basis in truth, but I'm afraid it has at least some: What if the owners' real motive is not to make a deal as much as it is to rid themselves of Fehr? No one on the owners side will ever admit that, but this strain of thinking is out there, without question.
The owners' extreme dislike of Don Fehr may have begun when he insisted that realignment not proceed last fall. But since this CBA process started, they have spent so much time demonizing him that one has to believe they are at least partly convinced that he is their problem, not the fact that they can't figure out how to save their struggling franchises, because it's Fehr who stands in the way of their favored solution: shifting the burden onto the players.
On CSN Bay Area, Ray Ratto writes about this very thing, and it's worth reading. Ratto said that baseball's owners realized 17 years ago that "the deal is more important than the personalities, and the deals got done." Have the NHL's owners realized that? Too frequently they act like a hockey team that has forgotten the puck, more interested in chasing after the opposition's pest than playing the game.
The NHLPA certainly suspects getting Fehr out of the process is a primary goal, as union staffer Matthieu Schneider told the SiriusXM NHL Network Radio audience on Friday (audio).
The NHL is a league that functioned for years with the PA as a company union and the antagonisms only began when Bob Goodenow succeeded owner-friendly Alan Eagleson. Without that old "special relationship," the owners had to find another way to do business and that's how Gary Bettman ended up as commissioner, his main task already clear to him the day he agreed to take the job two decades ago -- and, on Sportsnet.ca, Steven Brunt writes that in Fehr, Bettman has met his mirror image. This, too, is worth reading.
The goal of someone in Don Fehr's position is to get the best deal he can for the players, not to not get a deal. If it's true that the owners are more focused on eliminating Fehr -- and I'm not convinced they are, but others certainly think so -- they are going to pursue whatever path in these negotiations they believe will put him in the worst position with his membership, and that could mean not making a deal at all. That would be very foolish for all sorts of reasons, but the owners have made numerous miscalculations in this conflict. They may not be above being foolish on this.
Scenario 6: Decertification or disclaimer of interest. We talked about that briefly late last month and linked to Eric Macramalla's post on TSN’s website. Here's another link, from Grantland's Gabe Feldman on the NBA's disclaimer of interest and how it's a quicker process than decertification. Believed to be a risky tactic that, under the threat of antitrust litigation, could force the owners to negotiate, or backfire and turn the entire picture into a chaotic mess, it's an option for the NHLPA. Some observers believe the union might even consider going that route before the season's cancellation is upon us.
There are almost certainly other possible outcomes that I haven't considered. After Thursday's carnival -- which no one could have anticipated -- we should be prepared for anything.
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