By Stu Hackel
Another page is ripped off the calendar and we find ourselves at Day 90 of the NHL lockout. Chances are very good that this foolish interlude will hit triple digits, further damaging a league that was — long, long ago it seems — finally starting to gain momentum in the crowded sports landscape, and a greater degree of acceptance and interest among casual fans.
The biggest shots fired yet in this civil war — the possibility of the NHLPA filing a disclaimer of interest to disband, a legal move that could permit a judge to rule on the legality of the lockout and subsequently expose the NHL to anti-trust litigation — is now on the agenda with news Friday afternoon from Pierre LeBrun of ESPN.com that the union’s executive board unanimously approved a measure to authorize a vote among the players on the maneuver.
In response, the NHL filed a class action complaint in Federal Court in New York seeking a Declaration confirming the ongoing legality of the lockout. The league also filed an unfair labor practice charge with the National Labor Relations Board alleging that by threatening to “disclaim interest,” the NHLPA has engaged in an unlawful subversion of the collective bargaining process and conduct that constitutes bad faith bargaining under the National Labor Relations Act.
Ladies and gentlemen, start your lawyers.
As Chris Johnson of Canadian Press reported, the exact same sequence of events took place in the NBA lockout last year. The sides reached an agreement shortly afterward, the owners changing their stance on “maybe 15 or 20 different issues,” according to Jeffrey Kessler, the lead negotiator for the National Basketball Players Association in that dispute. There is no guarantee this dispute will end similarly, however.
There is no word yet on when the NHLPA will put the measure to a vote. UPDATE: The voting will begin on Sunday and continue through Thursday. More details here.
Here’s an article from TSN’s legal expert Eric Macramalla on disclaimer of interest and what it is intended to do. And here’s his earlier story on decertification, which accomplishes the same thing as the disclaimer, but involves a longer process.
If the NHLPA membership approves the measure, Don Fehr would write a letter informing the NHL that the PA no longer represented the players. It would indicate that the players no longer believe they can reach a deal with the owners. It’s possible the threat of legal action could force the owners to negotiate items on which they have been holding firm. It appears, however, they could refuse since they have taken up the challenge in court.
“The consequences are you would not have collective bargaining anymore, so the owners would have potentially some antitrust exposure,” Richard D. Furlong, a Buffalo labor lawyer told John Vogl of The Buffalo News. “The owners could not collude and basically join together to set the price of labor outside the context of collective bargaining. There are exceptions in collective bargaining that would otherwise be illegal. So if you’re not engaged in collective bargaining, it would put the owners in a precarious situation with respect to antitrust laws.”
Furlong added, “The bottom line is that this has been done before by unions within the context of collective bargaining in sports, and it has put the employers back on their heels with respect to the antitrust statutes. (NHL Commissioner Gary) Bettman probably is and should be worried about this.”
Representatives of the owners and players had spent the last couple of days talking with Federal mediators, and no progress was reported. The two amigos, NHL Deputy Commissioner Bill Daly and NHLPA special counsel Steve Fehr, were supposedly going to chat on the phone on Friday to figure out what comes next. But the PA’s plan may have changed everything.
This was already growing ugly. As Jeff Z. Klein reported earlier this week in The New York Times after speaking with advertising and branding experts about the impact of the NHL’s recurring work stoppages, “Even if they make rapid progress (in negotiations), the damage done by the third lockout under Commissioner Gary Bettman is likely to affect the league well into the future.”
The impact on surrounding businesses has been devastating, too, and The Buffalo News reports that U.S. Senator Kirsten Gillibrand has prompted the local office of the Small Business Administration to host a seminar to provide strategies on how to survive the lockout for businesses suffering without Sabres games. Even President Barack Obama urged the owners and players to wrap it up, telling them to “Do right by your fans.”
Any sane person would think that there would have been some sort of urgency on the part of the engineers to get this bargaining train moving and finally pull it into the station. But, sadly, it is stalled again, and is now, perhaps, derailed. This development is bound to mystify many observers – like CBC’s Elliotte Friedman and Sportsnet’s Mark Spector — who evaluated what was known about where the talks have gone and perceived that a deal was within reach. All that was required was some judicious compromise on the part of the owners.
This could also further alienate longtime fans, who are calling for boycotts (like the “Just Drop It” group that in a few days has grown fourfold, from 4,000 to around 16,000 pledges to curtail spending on the league and its products), ranting on Twitter, and producing funny and pointed YouTube videos lampooning the talks.
“How hard can it be?” they’ve all wondered. “Why don’t they just get this done?”
Real bargaining has only taken place intermittently since July and it has often been highly contentious. The players have seen the NHL slowly move in their direction over time — despite claims by the owners and their surrogates that the deal would only get worse the longer the players waited. The owners have already gotten massive concessions and believe they can soften the players up even more by threatening a lost season. The gaps have closed considerably from where we started after the owners’ initial lowball offer, a miscalculation from which this process has never recovered.
For those directly involved, confusion, apprehension and anger continued to surface. One unnamed NHL governor floated an idea to ESPN’s Scott Burnside for a compromise deal and laid it all out. Meanwhile in St. Louis, according to Jeremy Rutherford of The Post-Dispatch, the Blues are worried that even a more favorable deal for the owners still won’t help that club’s situation.
On the other side, the Predators’ Colin Wilson told Paul Friesen of The Winnipeg Sun that he doubted the sincerity of Commissioner Gary Bettman’s anger last week when the NHL broke off talks. “I still think he came out trying to look mad, sway the media,” Wilson said. “That’s what they do. Everything they do is strategic. I’m pretty disgusted by it. I really don’t enjoy him. He doesn’t care for the game.” It’s a widespread opinion of the commissioner.
“And therein lies your problem,” Friesen wrote. “The game could be burning down, with franchise pillars falling in major centers across the continent, but if the news came from Bettman’s mouth, the players wouldn’t believe it. No wonder this fight is so difficult: it’s not just about this CBA, it’s about the last one and the next one, too. The last time, the players lost a year and still caved to the owners’ demands for major pay cuts and a salary cap. Now that’s not good enough.”
No, it’s not, not if the owner’s main intent in this lockout has been, as Charles Pierce of Grantland put it in his scathing piece this week on Bettman and the NHL, to “pick off what meat is left on the carcass” of the NHLPA after the last lockout. That’s why, Pierce says, the PA hired Donald Fehr. Knowing the owners were coming after them for more, they needed — and he invoked a reference from The Godfather here — a “wartime consigliere.” (For some background on the owners’ nemesis, read this 1993 profile of Fehr by Sports Illustrated‘s E.M. Swift.)
These two sides have been warily sparring for months, presenting moving targets to each other, remaining elusive and hard to pin down. If there’s been no deal yet, it can only be because there was no willingness to get one done.
Like a number of people who have followed developments, Sam Carchidi of The Philadelphia Inquirer believes the NHL had a date in mind for beginning the season in order to play a 48-game schedule — early January. Until there’s a read deadline, he told NHL Home Ice on XM-Sirius Satellite Radio, “Each side is waiting for the other to break, hoping to squeeze out as much as it can.” Nick Cotsonika of Yahoo Sports called it “high-stakes poker or low-speed chicken,” although he doesn’t believe the NHL was going to announce a deadline, even if it had one.
At this point, however, a deadline deal qualifies as an optimistic scenario, if not an obsolete one. Last weekend, we looked at all sorts of potential plotlines and a few continued to stick in the craw. In one, the sides stared each other down and neither blinks at the deadline, losing the season. Since whatever comes out of this negotiation or potential litigation will set the ground rules for the NHL’s economics for the next decade, more or less, it was possible neither side was going to back down.
Another possible scenario looked at the owners’ other intent — to rid themselves of Don Fehr, break the union, and punish the impertinent players for being disrespectful of all they have done for them. That would motivate bad faith bargaining and willfully allow more pages to be torn off the calendar until a season-saving deal is too late. It would be aimed at getting the players to revolt against their executive director.
Instead, we are our way to the courts — or at least the threat of them if someone has a quick change of mind about the way they’ve been negotiating. That’s the initial idea behind the disclaimer of interest. But if this ends up in court, we could be headed into uncharted legal territory and, perhaps, a long winter without the NHL.
The further this goes, the uglier it gets, for the sport, for the business, for the fans, for those whose incomes and livelihoods are dependent on games being played. Could be that because it started bad, it can only end bad. We worried that this was becoming a slow-motion train wreck last month. Now we have to start worrying about how ugly this train wreck is going to be.
Here’s what I thought was the original
But the real original was by Robert Pete Williams (thanks to Jess Vermont for the tip).
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