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NHL lockout now a painful farce

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ice skating clowns

Send in the clowns: Federal mediators are joining the NHL lockout circus, but neither side has to listen to them. (Photo by Todd A. Swift/Getty Images)

By Stu Hackel

After getting drunk on the spirits of Operation Hat Trick in Atlantic City, we awaken to the long hangover that is the NHL lockout. That’ll sober you up real quick.

By now it should be clear to whoever is still paying attention to this ongoing farce that no one really knows what’s ahead and anyone who is offering a prediction is just guessing. All we can say with relative certainty is that the next time the players and owners get together — which looks like it will be Wednesday — they’ll be joined by members of the Federal Mediation and Conciliation Service. Will that matter? At this point, any suggestions to help break the stalemate would be useful, but most observers are doubtful they will matter. The mediators have not been asked to settle the dispute, only make recommendations — and neither side is obligated to follow them. If you subscribe to the belief that one side isn’t interested in agreeing to anything unless it gets its way (and you are free to choose your side here), mediators likely won’t change that.

How the FMCS, an agency of U.S. federal government that handles arbitration and mediation of labor disputes and contract negotiations, got involved is somewhat unusual. Generally, they contact parties who are in negotiations and remain in touch with them during the process but have to be invited in to help the process. Sometimes they succeed; the FMCS last week helped end a brief lockout of Steelworkers Local 13-07 in Kansas City, MO, by Milbank Manufacturing Co.

About a month ago, according to Larry Brooks of The New York Post, the NHLPA had suggested to the NHL owners that mediators come in to assist, but the owners declined (and Don Fehr pretty much confirmed that in this interview over Toronto’s TSN Radio 1050). Now, the FMCS has said it invited itself in and both sides agreed. Why did ownership change its position?

It’s quite possible that the talk of the NHLPA decertifying put the owners in a position where they had to agree. We’ll go into decertification a bit below — it’s complicated stuff — but if the players were to proceed with that tactic, it could potentially expose the owners to anti-trust litigation and any indication that they had not negotiated in good faith or made every reasonable effort to reach an agreement would cause a judge to frown — and you don’t want to make a judge frown in court. Losing an anti-trust lawsuit is sort of like picking up a “Chance” card in Monopoly and learning you have to pay all the other players three times the amount of the worth of your hotel on Boardwalk. So the owners now have a different perspective on bringing in mediators.

Before we touch on decertification, which was all the rage on hockey blogs and among hockey Tweeps until Monday, let’s look at what will surely be a footnote in the mediation saga (which may itself end up as a footnote to this whole lockout): the sad tale of Guy Serota.

An anonymous bureaucrat — whose 15 minutes of infamy will always be linked to a parody of the Knack’s “My Sharona” — “G-G-G-Guy Ser-ota” — this FMCS commissioner was named as one of the three mediators in the NHL CBA matter along with Deputy Director Scot L. Beckenbaugh and  Director of Mediation Services John Sweeney. When their names became known, some enterprising fans and journalists began searching for whatever they could find on the web about them and Serota’s Twitter feed turned up containing some pretty vulgar stuff that some characterized as “inappropriate” and “clunky and uncomfortable.” But hostile remarks toward comedian Sarah Silverman smacked of anti-Semitism, among other things. Reached by phone, Serota told a reporter that his Twitter account had been hacked, and then it was deleted. Then Serota reappeared under another account and hockey’s Twitterverse, which had shifted from obsessing over decertification to obsessing over mediation, jumped all over Serota and began altering the words of Knack lead singer Doug Fieger. The whole thing reflected so badly on the FMCS that they pulled him off the case!

Well, that was fun.

OK, back to the lockout. Here’s the deal: Decertification seems to me like pulling the goalie: You have a chance to tie the game and win it, or you might give up an empty net goal and lose. It’s a tactic the players may use to get the owners to seriously bargain instead of rejecting whatever the NHLPA puts on the table, but it is fraught with peril. Essentially, it is a process that would dissolve the union, and that would make the lockout null and void. It also removes a lot of protections that the players and former players now have and, as noted above, opens up the possibility of anti-trust litigation. On “The Morning Show” over Montreal’s TSN 690 Radio on Monday, Bob McKenzie mentioned that the mere threat of decertification helped bring the sides to an agreement in the NBA and NFL lockouts (and Bob had more thoughts on the subject in this TSN article). But it has great danger attached to it for the players if they lose in court should things get that far. Still, there is a growing sentiment among them that it is the way to go, or is at least worth further exploration. Whether they will decertify remains a wide open question and maybe the biggest unknown of all.

Ownership certainly wouldn’t like that and they say that the process to decertify itself is so time-consuming that it would mean the season would have to be cancelled. That would, of course, give the owners another reason to say it is the players who are responsible for this mess. If lawsuits do result, they could drag out so long that it would impact the start of next season.

A number of experts in the field have written about it, one of whom, Eric Macramalla, posted this on TSN’s website and it’s well worth reading if you want to know more about decertification. If you want a quick explanation of the decertification process, you can read Jeff Klein’s blog post for The New York Times.

It’s all very dizzying. The Red Wings’ Todd Bertuzzi tells The Detroit News that he believes the season will be lost. The Jets’ Ron Hainsey, who is on the NHLPA negotiating committee, told The Winnipeg Sun, “Well, I’m not sure if going into mediation will solve this or not. But it will be a new perspective injected into this, with the intent of seeing if they can bring us closer together. I think it is an avenue worth a shot.”

The Canucks’ Corey Schneider tells The Vancouver Sun, “The appetite for decertification is much stronger than it was before. Through this whole process, we’ve viewed that as a last means. We didn’t want it to come to that so we’ve always pushed to negotiate, negotiate.”

Pittsburgh’s Sidney Crosby is so doubtful that the season will happen he’s more seriously considering playing in Europe. “I probably hadn’t thought about it quite as much as I have the past few days,” he said (quoted by Dave Molinari of The Pittsburgh Post-Gazette. “It’s definitely been something … with the way things are looking now, it’s not looking too good.”

Nope, it doesn’t. But no one knows what’s next. Like the song says, “Que sera, sera.”

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  • Published On Nov 27, 2012
  • 13 comments
    lsd156
    lsd156

    All I know is that, as a Kings fan, I waited 43 years for a title, and now I get to enjoy it for two years!!!  Thanks greedy owners - and yes I agree they haven't been bargaining in good faith and will be burned by decertification....

    GregJakubowski
    GregJakubowski

    Dean,

     

    My son has season tickets for the Blackhawks. When he inquired about a refund for this year, he was told he would lose his right to purchase season tickets next year. He would have to put his name on the waiting list (~8000) to buy season tickets again.

     

    Dollar Rocky is paying 2% simple interest on the money he is holding from STH's.  I understand the Wild is paying 10%.

     

    Greg

    Thomas Baker
    Thomas Baker

    To answer a question down below, the Carolina Hurricanes are issuing me a full refund of my two season tickets. I cancelled them in the belief that the 2012/13 season is a lost cause. Even if they do eventually make an agreement, who wants a partial season? Not me. I have moved on to the AHL for this season. Good Hockey at a lot less cost. I just purchased tickets for the Charlotte Checkers at $20 each. Those same tickets would cost $85 each for the Hurricanes.

     

    I have a real problem with the reporting here only finding fault with the owners. The players and the union are a greedy bunch and the dirty little secret is the players are not going to miss any meals or go broke with a 50/50 split of revenues. The owners bear the total cost of running the league while trying to make a profit. And profit is not a dirty word. Without profit there would be no NHL.

     

    The owners are not totally clean either. If they are going to keep teams like Columbus, Phoenix and Florida, they need to do a better job with revenue sharing to keep these teams afloat or accept contraction.

    SteveGillis
    SteveGillis

    Union must go or face strike next contract- the union will then hold all the cards hostess- hockey is the 4th fav sport here in the usa - they cannot withstand a lockout and a strike- owners will be kissing up to the players in the next contract- baseball had a hard time over a strike- there is no room for a mediator here

    chico_hawk
    chico_hawk

    I think decertification for the players is merely a roll of the dice in a situation where they already don't have much to lose, other than avoiding the owners dictating yet another CBA to them... while the mere threat of decertification should scare the living daylights out of Bettman & the owners...

     

    Decertification means no more collective bargaining - each player negotiates on his own terms, no more standard player contracts, no more cap, no more revenue sharing, etc.  The resulting chaos & uncertainty will create a free-for-all that will end up hurting & perhaps bankrupting several smaller markets.  That will mean the loss of marginal player jobs league-wide, where big markets absorb top players rom failed franchises (dumping their own marginal players in the process).

     

    In a way, this would be comparable to contraction, which, I think from a fan perspective would be healthy for the NHL & its product on the ice...tho revenues would surely take a major hit (along with equity values of all but the strongest franchises, i.e. original 6 + Philly) and obviously some marginal players would be demoted to the minors...but I think it would break the ownership stranglehold they seem to want to impose on all players & I think that would do nothing but good ultimately for the fan.

    seanthompsonla
    seanthompsonla

    beyond frustrated...becoming apathetic and will soon ask for my ticket money back that's being held by the Kings....

     

    so sad to sit back and watch them destroy their own sport. it's beyond ridiculous.

    MattJanosko
    MattJanosko

    Stu, a few weeks ago I commented suggesting that maybe the NHL owners offering a much lower requirement for unrestricted free agency (3 years instead of the required 7 or even when a players first contract is expired regardless of years...1, 2, etc.) as possibly a massive concession to the players in the hopes and possibility that the players might love this concession and therefore accept some of the other ridiculous draconian offers the owners are suggesting for the players in other areas.

     

    In my comment I mentioned how Marvin Miller had the foresight to not offer/ask/demand total free agency but only after 6 years of service time causing a slow trickle of talent that, in turn, raised salaries dramatically due to the laws of supply and demand. I mentioned I seen an interview of Mr. Miller illustrating that genius and foresight...I also mentioned I couldn't find it online (and still can't). However, with Mr. Miller's passing today I found this article on SI.com today mentioning what I said and seen and what he said in that interview.

     

    I know you gave an argument suggesting otherwise how having total free agency regardless of time served would cause even more increases of compensation for players which would obviously be something the owners wouldn't want...and you made a valid point.....but I'd like you to read this article because a) it probably explains and illustrates the point I was making (or trying to make), and, b) I would like to hear you thoughts again on a possible no service time requirement for unrestricted free agency in the NHL as a possible deal breaker with the players agreeing to other owner demands in this lockout after reading this article.

     

    I think this article illustrates much better what I was talking about in the terms of supply and demand and how on the surface complete unrestricted free agency regardless of service time whenever a players contract is up might be a salary explosion for the players....but, in reality, it might not (and probably wouldn't be) when massive amounts of players are on the open market and massive amounts of options for teams due to this are available thus just basically keeping salaries at a controlled level due to fair and open market behavior as opposed to now and especially illustrated this past summer in the NHL free agency shopping and spending spree. Just think of it in these terms: if gold wasn't so rare and owned by so few....how valuable would it really be? Not like it is now...that's for sure.

     

    http://sportsillustrated.cnn.com/2012/writers/tom_verducci/11/27/marvin-miller-free-agency/index.html?eref=sihp&sct=hp_wr_a2

    DeanJordan
    DeanJordan

    I am wondering what the other teams are doing in terms of season ticket refunds at this point for cancelled games?  Are team issuing refunds at this point or are they holding on to the season ticket holder's money?

    PaulSteven
    PaulSteven

    so, FMCS is going to try fix hockey.  Why couldnt they save twinkies

    Stu Hackel
    Stu Hackel moderator

     @Thomas Baker First of all, it's not dirty, it's not little and it's certainly not a secret the players are well paid.

     

    Secondly, the players are willing to live with a 50-50 split of Hockey Related Revenue -- which is not all revenue, as we've discussed before (the owners make a fair amount of money related to the operation of their teams the players are not permitted to share in, and only they know what their real profit picture is). The difference in the sides is not on the percentage of the split of HRR but the fact that the players also want the owners to honor the existing contracts that they signed prior to the lockout.

     

    Thirdly, the "problem" you have with what what I've written is that I don't agree with the way you see the world, not that I've intentionally misrepresented how the owners have conducted themselves in these negotiations. The fault I find with the owners has nothing to do with who is greedy and who is not, but the manner in which the owners have not negotiated in this entire process, because it's been essentially their way or no way. They have offered the players nothing in these negotiations, not a thing that improves on the expired CBA when it comes to the core economics, after the players worked for seven years under the last deal and produced record revenues for the owners. That's where the owners profits come from, by the way -- the players, and their "reward" was to be offered slashes to their pay and diminished contract rights. It is not a "concession" when after demanding the players take 43 percent of revenue the owners say, OK you can have 50 -- especially when the players used to get 57 percent. A concession would have been giving them something north of 57. But the players are fine with 50-50, and all they are asking is that the contracts they signed be honored. And now, they aren't even asking they be honored in full.

     

    If a fair deal is the goal, I don't believe the owners have done enough to achieve one. You may think that's one-sided, but that's because the owners' offers have been one-sided. That's how it has played out in these talks and if you have any information to the contrary, I'd be happy to hear it. If reality makes the owners look like the less agreeable party here, well, I can't help that.

    Stu Hackel
    Stu Hackel moderator

     @MattJanosko Matt, thanks for sticking with this theme and helping me understand your point. I appreciate your persistence.

     

    Here's what I got from Tom Verducci's fine story that you linked (and if you understand it differently, please let me know): Miller wanted six years as the term for free agency, and not anything less or more. He believed that is when an above average ballplayer would be at his peak value and be able to maximize his worth in the marketplace. And because he felt six years was the perfect time, he opposed Charlie Finley's suggestion to make all the players free agents. It wasn't Miller whose ideas you seem to follow, but Finley's. It was Finley, not Miller, who seemed to think the supply and demand factors of making all the players free agents would keep salaries under control, but, again, no one among the owners wanted to go along with him either. I think part of that is because baseball teams spend a lot of money and resources developing their players in the minor leagues and they want a return on their investment, not lose their players after one season. There is some parallel here with the NHL since so many players spend at least some time as minor pros before making the NHL (and that's unlike NBA and NFL, which get their players directly from college programs). But whatever the other owners' rationale, Finley was alone on that.

     

    Now, you seem to believe the NHL players would embrace the idea of becoming UFAs sooner, but I think Miller's concept about finding the time -- whatever it is for hockey  -- when a player's value as a UFA is at its maximum, is likely something NHL players would embrace and I don't think that's three years or less. Most recently in the last CBA it was seven years and that seemed to work pretty well for the players. Zach Parise and Ryan Suter, for example, both cashed in big time and that wouldn't have happened had they been UFAs after three years. In fact, that's one of the big fights in the current negotiations because when it comes to UFA's the owners want it to be eight seasons if the player is 28, while the players want it to stay at seven if the player is 27. There seems to be an understanding that three years is too soon. The Entry Level system is for a player's first three years (and another big part of the current mess is because the owners don't want a player to have any salary arbitration rights for another two years after he goes through the Entry Level period. So a player would have very little leverage for five years -- and the average NHL career is only five years, which is why the union is opposed to that).

     

    Anyway, the bottom line here is that I don't think the ideas you embraced are Miller's, but Finley's. And, if I recall our previous discussion about them, I didn't think that the quicker path to free agency would be beneficial to anyone and nothing I read in Verducci's story has changed my thinking on that. But again, thanks for sticking with it and trying to help me understand your point and if I'm missing it, feel free to take another shot.

    Tiger Al
    Tiger Al

     @Stu Hackel The players should have settled a month ago, Stu. This is all on Fehr. 

    MattJanosko
    MattJanosko

     @Stu Hackel First, thanks for taking the time to respond and especially to read the link I posted because from your response it did illustrate much better my original comment several weeks ago. And you grasp what I was getting at.

     

    Anyway, I can't remember but I don't think I said that total free agency without service time requirements was anyone's idea in particular. I believe what I originally said several weeks ago was that Miller had the foresight and genius to NOT want that and to rather have a slow trickle of free agent talent in order to capitalize on the market as opposed to the market being flooded with talent every single off-season (Miller says basically the exact same thing in that interview I originally mentioned in the PBS documentary "Baseball"...really wish I could find that online for you. I have no doubts that Finley would want latter scenario....after all, as cooky as he was he was also a businessman, a very successful businessman and not exactly an idiot but rather smart when it came to matters of business and finance.

     

    I totally understand what you point out if such a scenario were made available to players in the NHL...makes sense and, after all, I wanted your opinion on the matter (thanks again). However, I'm not so sure that the players would turn that down (they may for the same reasons you mentioned....but they may like it, too). I have to admit that it would be interesting to see how a sports league would do in a totally free capitalist marketplace like the rest of us enjoy in our respective endeavors of work.....no draft, no service time requirements for free agency....I actually wonder if it might even be more beneficial for small market franchises as opposed to now when big market teams just wait for small market teams to lose their players to free agency or by trades prior to free agency so the small market teams can at least get something in return.

     

    Anyway, I appreciate the response and the scenario I illustrated to you was just something that popped into my head while reading about this asinine lockout. Thanks again for the response and I really enjoy your blogs. Hopefully, if and when the NHL starts back up again I may send along some very interesting stats I've worked on in my free time regarding player comparisons over different era's in the NHL's history....that's if we ever have another NHL season again.