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Mistrust shows up to bedevil CBA talks

By Stu Hackel

Another day, another series of talks for the NHL and NHLPA : Day 110, to be precise, and while there have been some positive developments this week, there is still no certainty that an agreement is imminent or even assured in time to preserve a 48-game season. The supposed deadline for that is Jan. 11, with the schedule beginning on Jan. 19. Neither the deadline nor the puck drop can be guaranteed.

That's because some outstanding issues -- like the salary cap, pensions, and contract limits -- remain and the sides are not close to agreeing on how to resolve them. There are new suspicions on both sides as well that have kept the anxiety level high. Both Gary Bettman and Don Fehr said after Wednesday's marathon talks, which extended into early Thursday, that some progress had been made, but there were still some hard miles to travel.

UPDATE:As of Friday morning, Day 111, the two sides were conferring with a mediator and no formal bargaining session had been set.

UPDATE: As the clock ticked, there were no large-group negotiations Thursday afternoon or evening, only a small group session on the critical pension issue. The absence of talks on the core economic issues dividing the sides got's Pierre LeBrun righteously agitated, writing, "The most embarrassing work stoppage in the history of pro sports has found a way once again to show it might also be the most irrational ever of its kind." His piece is worth reading. And in The Winnipeg Free Press, Gary Lawless quoted a "veteran member of the NHL’s board of governors" saying the season's cancellation is only a week away. Yahoo Puck Daddy's Greg Wyshynski, for one, was not surprised by the story and had some salient observations on it which you can read here. Meetings are scheduled to resume Friday morning.

Mistrust has to be bubbling: The owners apparently attempted to slip into the deal a provision that removed harsh financial penalties on clubs that improperly reported (i.e., hid) Hockey Related Revenue. The ploy was detected by the players union, and during talks early on Thursday the penalties were re-instituted. If you need any more of an explanation about why this wholly wasteful and damaging lockout fiasco has dragged on -- and on and on and on -- this one little episode tells all you need to know.

Potentially more troubling, the NHLPA plans an expedited vote beginning Thursday evening to reinstate its right to file a disclaimer of interest, the fast-track method of decertification that could unleash the anti-trust law hounds at the owners' legs. The earlier provision to file expired at midnight on Wednesday, to the great relief of the league. The threat of filing the disclaimer, which would make the owners vulnerable to litigation (a tactic the union can use when it believes the other side is not negotiating in good faith), was at least partially responsible for the resumption of talks last week. There was some sentiment among the players that they still need that weapon to keep things going. Some reporters following the story say that the NHLPA believes once the deadline passed, the tone of the league negotiators changed.

UPDATE: More on the vote to reinstate that right to file a disclaimer of interest here on the Tracking Blog.

In fact, word is that Don Fehr was authorized by the NHLPA Executive Committee to invoke the disclaimer by himself on Wednesday if he believed the situation required it, but he declined to use it, perhaps concerned that it might disrupt the talks. "So wait," tweeted Yahoo Sports Nick Cotsonika. "It was Don Fehr himself -- the bogeyman, salary-cap crusher -- who decided against disclaimer last night? Hmm." And he continued, "Say what you want about Fehr. He has his ideology and his strategy. But he is practical and represents his constituents."

If nothing else, the expiration of the first disclaimer has allowed the PA to ask the U.S. District Court to dismiss the NHL's suit against the union that was filed when the news broke last month that they players were going to vote to decertify. If you have the inclination and lots of time (or, as The Globe and Mail's Dave Shoalts tweeted, "If your life is completely bereft of meaning"), you can read the NHLPA's motion here.

Part of the good news disclosed on Wednesday was that a Federal mediator, Scot Beckenbaugh, had rejoined the process on Monday and probably has played a significant role in keeping things on track. He's been in on these talks twice before, actually inviting himself because the league wasn't especially keen on mediation. But with a new urgency for some semblance of a season upon them, the owners have changed their attitude on the assistance. They are going to need it because the unsettled items seem thorny.

First, is the matter of the salary cap for 2013-14. The owners want it set at $60 million, and the players object to it being that low, seeing as how it will probably cost jobs as teams try to fit under a number that a few clubs have already exceeded. As we noted on Monday, the Canucks already owe $60.7 million to just 13 players in 2013-14, the Flyers owe $59 million to 16, and the Bruins owe $57.1 million to 16. All NHL teams are required to have 23-man rosters, so filling them out with little or no money to spend is going to require that some players be moved or dumped.

The league agreed on Wednesday to allow a second player to be bought out by each club ("compliance buyouts," they are called) and their salaries would count against the players' share of HRR instead of the cap. The players want a higher cap, perhaps $65 million. The league is reluctant to give on this, in part because $60 million means a floor of $44 million for the have-not clubs, about $10 million less than the floor was supposed to be for this season. (It will still be that figure, but prorated based on the shorter season.) Last season's floor was $48 million.

The players have suggested keeping the floor at $44 million but raising the cap over $60 million. The league has resisted, believing a bigger spread between the top and bottom might hurt the NHL's competitive balance, its parity. Some observers (Larry Brooks of The New York Post, for example) have pointed out that some low-spending teams like the Hurricanes and Oilers have made the Stanley Cup Final and even won the Cup. They believe this parity argument from the owners is a ruse to cut salaries.

This gives you an idea of the difficulty surrounding the unresolved portions of the CBA, and the pension issue seems to be even more tangled. Not much is known about the details (we linked to Pat Leonards' New York Daily News item yesterday, and Yahoo's Cotsonika also has some insight on it and other stalled matters), but it was thought that the pension issue had been agreed upon a month ago. Not so, because apparently this is another item that the owners changed in their most recent offer.

“It’s a very complicated issue,” Bettman said after the Wednesday-Thursday talks. “I mean, the number of variables and the number of issues that have to be addressed by people who carry the title actuary or pension lawyer are pretty numerous and it’s pretty easy to get off track, but that’s something that we understand is important to the players. If we can get the issues resolved, we’re hopeful we can satisfy the players on that but that’s still a work in progress.”

For now, we wait and see how -- and if -- the sides can manage to plow through these things. We've already waited over 100 days, and we're going to have to wait some more.

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