By stuhackel
November 05, 2012

Manhattan skyline Hurricane Sandy A sobering reality: NHL CBA negotiations will resume in New York City, an area that was ravaged by Hurricane Sandy and rightly has more important things than hockey to worry about. (Photo by Brendan Smialowski/AFP/Getty Images)

By Stu Hackel

Should we be excited that the NHL and NHLPA are resuming negotiations again this week? In one sense, yes, of course, because there can be no end to this ill-conceived and ill-considered lockout without talks.

But let's temper our excitement about the owners and players finally getting back together after two weeks of hard feelings and little communication. Until we get some sustained momentum from the CBA discussions, it's foolish to think that we have anything but a long road ahead of us.  During the past two months, we've periodically had our hopes raised that good faith and reason were about to prevail and that hasn't happened yet.

Sure, the secret talks at a secret location over the weekend produced heartening communiques from NHL Deputy Commissioner Bill Daly and NHLPA special counsel Steve Fehr. "We had a series of meetings yesterday (Saturday) and exchanged views on the most important issues separating us," wrote Daly in a Sunday morning email."We plan to meet again sometime early this week.''

Said Fehr: "Hopefully we can continue the dialogue, expand the group, and make steady progress."

Yeah? And?

The most we can glean from this development is that Daly and Fehr may have -- may have -- been able to find some ways to thrash out and prioritize a common set of issues that need resolution and a framework in which to discuss them. It doesn't mean they are closer to agreeing on anything more than that. These are mandatory steps, so let's not belittle them, but they are only a few paces on a much longer street, and that street almost certainly has lots of potholes and detours along the way.

Sorry for not taking the "glass half-full" approach, hockey fans. We've tried doing that a few times. For example, when talks started and progress was made on secondary issues, the sessions appeared to set the stage for progress on the primary ones, but didn't. After that, we weren't all that put off by the owners' first harsh proposals on the core economics -- others called the league's so-called offer "an act of war" (and, in retrospect, maybe they were right) -- but the players surely were offended. Then, we were heartened when the players submitted their first counter-proposal, which seemed like a reasonable approach to solving the owners' concerns. Nope. More recently, we were let down when the owners finally said they were prepared to split revenue 50-50 and honor existing contracts, and the players said they'd agree to that -- only to learn that "50-50" and "honoring existing contracts" mean different things to different people.

Each time, that half-filled glass got knocked over, spilling its contents on the bargaining table. So we'll keep the glass empty this time and let what transpires dictate how much hope we pour into it.

There is some important evidence -- aside from the history of these negotiations -- that should give us pause. The first piece is the timing of these latest talks. They come right on the heels of the news that the league may have shifted its thinking early last week and revised its "make-whole provision" to embrace the players' demand that existing contracts be honored. That, undoubtedly, was the carrot to get talks started again, right before the league employed the stick cancelling the Winter Classic and threatening the entire season, an act that Bruce Arthur of The National Post likened to "a hostage situation and shooting a hostage to prove you're serious" on Sunday's edition of TSN's The Reporters (video).

Our friend and SI college Michael Farber then remarked, "It strikes me as curious that hours, literally, after the cancellation, we hear stories that, 'Well, the NHL is moving on the make-whole provision.' To me it looks like spin...'We're trying to change the conversation here,' the NHL (implied). 'You're angry at us for this but, boy, you're going to love us now that we've started the negotiations, so don't hate us because we've cancelled the Classic.'"

"So much of the back and forth seems scripted," Farber added, "and I think that's what bothered people."

And it should bother people because the script, as any number of commentators have noted, seems lifted right out of the previous lockouts we've witnessed during the past few years. CBC's Elliotte Freidman most recently made the connection between the NHL lockout and the NBA's in 2011 in his column last week. He wasn't the first.

Others, like David Zirin, blogging for The Atlantic, have gone so far as to allege that all four of the lockouts during the last 14 months in the NFL, NBA and NHL are being masterminded by the New York law firm of Proskauer Rose Goetz & Mendelsohn as part of a "conscious, industry-wide strategy." Both Gary Bettman and the league's general counsel, David Zimmerman, practiced law at Proskauer. The firm hosted the NHL owners at their Times Square headquarters when the Board of Governors voted to approve the lockout in September. Bob Batterman, a current Poskauer partner advises the NHL on its lockout strategy, as he did for the NFL, and his fellow partner Howard Ganz represents the NBA and Major League Baseball. "In practice," Zirin writes, "this has meant that in four sets of negotiations with four very different economic issues at play, we get the same results: lockouts and a stack of union complaints with the National Labor Relations Board. It’s been great for owners and awful for players, fans, stadium workers and tax payers."

Not so sure this lockout has been great for the owners, at least not yet.

Of course, it could be that what we're seeing now is in the script, too: calling for the sides to start reaching some understandings. It's possible that on the owners' and players' sides there is enough dissatisfaction with the way things have gone, and concern that a full season might, once again, get flushed down the toilet, that the playbook calls for negotiators to ease up on their hardline positions. There were hints last week that some players wanted answers when Don Fehr flew to Minnesota. "Putting out fires" is how one league source characterized it. And with the schedule evaporating, a number of owners have to be on the phone to Bettman wanting to know how long this will last and when it's going to end so they can start repairing the relationship with their teams' fans, not to mention getting them back in their arenas. Corporate sponsors and broadcast partners can't be overjoyed, either, and they must be ringing up the Commissioner and his lieutenants. So a tactical shift is in order.

But that doesn't mean that the sides will be abandoning their strategies. I'll be happy to be very wrong about this, but I have a hard time believing that this thaw indicates a resolution is at hand. if only because of the complexities of the outstanding topics involved.  Even if the negotiation teams settle on what constitutes an equitable split of revenue and figures out how that blends with the owners honoring the players' existing contracts, there is still a myriad of items to get through, like the "individual contracting issues" (namely, free agency, the Entry Level System, salary arbitration, contract length, and bonus provisions) that need resolution. There are also very thorny subjects like the ones raised by David Shoalts in Monday's Globe and Mail about how low-revenue teams dislike aspects of the league's salary cap proposal and fringe NHLers object to having their salaries counted against the NHL cap when they are in the minors. Each of these matters could bog down that talks. We've seen it before.

Meanwhile, the clock ticks and life goes on without the NHL. The massive hit that the Northeast took from Hurricane Sandy last week is bound to cripple some areas in one of hockey's strongest U.S. regions, and despite some rosy images and proclamations, recovery is not in sight for many of those who were worst affected. If and when the CBA is completed and the players return, there's no telling yet how the destruction from the storm might impact the NHL's business. You'd like to think that the negotiators have considered this in their thinking about what the league's comeback will look like at the box office -- maybe that's what prompted the NHL to rethink the "make whole" provision. But since Sandy wasn't part of the script, you can't know for sure.

So let's not get too excited and start filling those glasses -- at least not yet. We're still a very long way from home.

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