NHL Labor Negotiations Fall Apart After 'Constructive' Talks; NHLPA Decertification Could Be Next Strategy To Prevent Lost Season

   on December 06 2012 10:34 PM

Hockey fans have reacted to the NHL lockout with anger, grief and disillusionment, but they can now add heartbreak with the news that what looked like hopeful negotiations between NHL ownership and the NHL Players Association have fallen apart. After already seeing nearly half the season canceled, it now looks likely the league will terminate an entire season for the second time in just eight years.

Fans had their hopes up when NHLPA Executive Director Don Fehr said the union had made an offer that offered “a clear outline to end this dispute.” But the NHL, led by Commissioner Gary Bettman and Deputy Commissioner Bill Daly, not only rejected that offer, they reneged on the crucial “make whole” payment plan designed to cushion the players when they see their revenue stake drop from 57 to 50 percent, according to Greg Wyshynski of Puck Daddy.

Bettman and Daly accused the players of trying to spin public opinion into an “emotional frenzy” and said the union was “cherry-picking” the details of the deal. Katie Strang of ESPN reported that Bettman accused Fehr of teasing the public about how close the two sides were, calling his assessment “incomprehensible.”

The league’s make-whole offer stood at $300 million before it was taken off the negotiating table. The league sought a 10-year collective bargaining agreement with the potential for an opt out after year eight while the NHLPA wanted an eight-year agreement with an eject button after six years.

“The players have gone a very, very long way,” Fehr said. “The players have done far and away the lion’s share.”

This is the third lockout under Bettman’s tenure and, while he’s never been popular with fans, one ray of hope might be that during the 1994-1995 lockout the league didn’t strike a deal until mid-January and would go on to play 48 games. When asked about the next step on Thursday, Bettman added that he couldn’t see the league playing less than that number this season.

"We have moved dramatically; we are proposing a long-term system that will play the players billions and billions of dollars over its term, but we have to have a system that works right," Bettman said. "It's all part of the package. I am disappointed beyond belief that we are where we are tonight. We're going to have to take a deep breath and try and regroup."

Early on in the process, the league hired a public relations firm in an attempt to sway fans, but whatever fruits that effort provided seemed to have evaporated by Thursday night.

“I'd have a lot more respect for NHL's ownership propaganda if those four guys stood in front of media and answered some tough questions. Fehr has,” Wyshynski said.

So what’s next? If there’s going to be any hope for a season in Bettman’s 48 game window, the league and union will need to meet again, and soon. Both men said they expect to return to the negotiating table but would not speculate on a specific date. Bettman told the media “owners need to take a breath.”

Katie Strang reported that she was told by multiple sources to “expect a serious discussion soon amongst union on possible decertification/disclaimer of interest.” If the union were to decertify, it would open up the NHL to lawsuits that would probably expose the league’s relatively weak position in anti-trust court.

Larry Coon broke down the dynamic for ESPN during the NBA lockout last year, although the scenario is applicable to this NHL's situation. It's worth noting that before Bettman became NHL commissioner he worked as NBA boss David Stern and the two are known to still communicate. 

“In many normal businesses, employers fight unionization and would be thrilled if the employees decided to get rid of their union,” Coon wrote. “But in the sports world, employers benefit from the existence of the union -- so the employees can use the dissolution of the union as a threat.

“So far the NBA players have kept the dispute within the realm of labor law by continuing to negotiate as a union. If the players dissolve the union -- either by decertifying or through a related process called a disclaimer of interest -- they surrender their collective bargaining rights, lift the shield of protection provided by the non-statutory labor exemption, and shift the venue from labor law to antitrust law.”

Without a union, individual players can challenge the league’s right to trade them between teams, the idea of a salary cap, a maximum salary cap, entry-level deals and a slew of other business practices.

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