December Could Be The Crucial Month for NHL CBA Talks.

As the calendar turns to December, some NHL observers suggest it could be the crucial month in the ongoing NHL lockout.

Efforts by US federal mediators to bring the NHL & NHLPA closer to a new collective bargaining agreement failed this week, with the two sides too entrenched in their respective positions to reach an agreement.

Some critics believe mediation should have occurred sooner, perhaps a month or two ago. Considering the fact whatever conclusion the mediators would’ve arrived at was non-binding, one can be forgiven for believing the process was mere posturing by both sides in this labor stand-off. Indeed, most pundits and bloggers I’ve followed throughout this lockout expressed pessimism over mediation ending the lockout.

With those pessimists proven right, the lockout enters what could be the crucial month in determining if a new CBA can be reached, or if we’re another season will be lost to a lockout.

Soon after the mediation talks concluded, TSN’s Darren Dreger reported league commissioner Gary Bettman suggested a select group of owners and players should meet without league or PA brass in attendance.

The PA was supposedly considering it, but it would be surprising if they would allow the players to go into a meeting with a select group of owners without legal counsel.

Prior to the introduction of mediation into the NHL labor standoff, a number of pundits and bloggers debated the pros and cons of possible decertification by the NHLPA.

In the wake of the NHL’s rejection of the PA’s latest written CBA proposal, decertification became a topic for serious discussion among the players. Some, like Buffalo Sabres goaltender Ryan Miller, are wholeheartedly for it. Others, like Boston Bruins forward Shawn Thornton, would prefer more education on the matter before considering that option.

Based on recent media reports, it appears the players weren’t ready to take that significant step yet, as it is largely one into the unknown, taking this lockout from the boardroom to the courtroom.

While the threat of lawsuits could force the owners into reaching a labor agreement with the players, the league negotiators could also consider it merely a bluff by the players.

If the PA isn’t bluffing, however, it could put pressure upon the team owners to bargain. On the other hand, the league could simply prepare to shift the battle to court, hoping for either a dismissal of the players’ lawsuits, or that the lengthy process will discourage them enough to capitulate.

Given the time required for the PA to decertify (a vote would be required, then the PA would have to file for decertification with the National Labor Relations Board in the United States, a process which reportedly could take 45 days), it could be until February before it would go into effect, all but killing any hope by that point of NHL hockey this season.

Decertification would also have consequences for the players regarding their health and pension benefits, so it isn’t something to be just taken lightly.

Because decertification takes time, the PA could instead consider what’s called “disclaimer of interest”.

As per TSN’s legal analyst Eric Macramalla:

Disclaiming interest occurs when the Union terminates its right to represent the players. It’s a less formal process than decertification and only requires the Union to renounce representation of the players. It’s easier to do and it takes less time to re-form the Union afterwards.

While they are different, the net effect is the same: the Union is dissolved and the players are free to sue for antitrust violations.

Barring those options, the NHLPA will have to continue to continue the current negotiation process.

Despite much of the gloomy headlines about the seeming lack of progress in the CBA talks, however, the two sides were inching closer together toward a resolution.

Considering during this point in the previous two lockouts, the two sides were barely speaking, the fact negotiations have been more or less ongoing since mid-summer is at least a small indication of progress.

Both sides have agreed to a 50-50 division of hockey-related revenue, but of course the sticking point is whether it should be gradually implemented over the next three-four seasons (which the PA wants, in order to lessen the impact upon existing contracts), or immediately (which the league wants, offering up a system of deferred escrow payment to lessen the immediate impact upon exisitng contracts).

Player contract rights are also an issues, but while there’s been agreement on some issues (term of entry level contracts, elimination of re-entry waivers), the PA is rejecting others, like term limits on standard player contracts and increasing the eligibility age for unrestricted free agency.

It’s obvious flexibility is required on both sides to reach a suitable agreement.

In my opinion, the league should agree to a gradual implementation on the HRR issue, while the PA should be willing to give ground on the term limits on contracts and the eligibility for UFA status.

But of course, what seems simple to me, or to other observers, is not so for the league and PA.

I’ve maintained a meaningful season can be had if an agreement can be reached sometime in December, and I still believe that, but I now feel that if this stretches into January with no resolution in sight, prepare to write off this season.

Others disagree, pointing out decisions weren’t reached on the respective seasons of the last two lockouts until January or February, but I sense things could be different this time, that the owners could decide to shut things down sooner than that if we reach New Year’s Day 2013 with talks still at a stalemate.

A deadline to shut down the season could well be the topic at next week’s NHL Board of Governors meeting.

In the meantime, pressure is likely to increase on both sides to bring things to a resolution.

Already we’ve seen a few reports of players questioning both sides in this lockout and calling for a resolution, including Roman Hamrlik’s recent criticism of NHLPA director Donald Fehr.

On the other side, however, we’ve already learned the owners of the Buffalo Sabres and Ottawa Senators earned scoldings from the commissioner’s office for expressing their wish to be playing hockey, a sentiment also shared by the owner of the NY Rangers.

We’ve also heard rumblings of the Flyers owner apparently expressing his disdain over the direction of the lockout, while Boston Bruins owner Jeremy Jacobs, chairman of the NHL Board of Governors, is coming under increasing criticism for his hard line approach to negotiations.

It’s obvious there are moderates on both sides who believe a deal is there to be had,  and they could push their respective leadership to reach an agreement.

We’ll know by the end of this month if their numbers will be sufficient to force one, or if they’ll be ignored by the hawks on both sides intent on burning down the village to save it.

 

1 Comment

  1. As I understand it, decertification is a prelude to filing a lawsuit under anti-trust laws.

    While anti-trust, or “competition”, legislation generally operates on a national level, most of the players (ie “employees”) in the NHL are, in fact, foreign nationals, non-resident in the USA..

    Keeping that in mind, it seems to me that all the NHL has to do is to point out that there are at least 16 different professionl Leagues now operating in Europe, where hundreds of the NHL’s “employees” are now gainfully employed.

    That these Leagues pay more or less, that the employee is more or less happier there, is really irrelevant to the fact that there is no case for a monopoly existing.

    So “good luck” with that I (sarcastically) say to the NHLPA.

    I long ago ceased to be neutral.
    I am “pro-player” for sure, but definitely “anti-Union”.

    All contracts should be honoured in full, but that can obviously now only be on a pro rata basis.
    It’s nonsense to expect that you’re going to get 100% pay for a year where there is less than 100% of a season.

    Yeah, the owners can be a bunch of dumpsters, but hey, it’s their money out there and their League.
    So, if you don’t like the condtions offered, go work somewhere else and give up the money you signed for.
    Free will.

    And “put your own money out there”, I say to the NHLPA.
    Start your own League, ha ha ha!
    See how long it takes you, see how many of you are actually employed, see what the top player earns.

    What a bunch of misled, uninformed nincompoops, working against their own self interest under the macho rationale of “beating” Gary Bettman and the League.

    rich