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NHL Refuses to Actually Negotiate with Players, Lockout Continues

October 19th, 2012 at 9:36 AM
By Matthew Heimlich

It has been an interesting, but once again unproductive week in the NHL lockout.

First, there was the Deadspin report, which uncovered that that NHL had hired infamous GOP consultant wordsmith Frank Luntz (the man who turned the "estate tax" into the "death tax" and "rich people" into "job creators", among others) to help them win the PR campaign against the players.  The report indicated that the NHL was going to go public with the message that the players were not all in lockstep behind their union leader Donald Fehr, and that although the owners had perhaps overstepped with their initial offer, there needed to be "shared sacrifice" between the owners and players in order to come to an agreement.

Next, after previously denying that he would negotiate through the media, Gary Bettman and the NHL owners essentially made a press release out of their most recent offer (a breakdown can be found here), starting their propaganda war against the players.  The big tagline for the owners in their proposal was that it would be a "50-50" revenue split between the owners and players, essentially in line with the split in the other major North American sports leagues.  Initially, this caused some buzz that the two sides might come to an agreement and save the regular season.  However, with these things the devil is in the details, and in this case, there are several demons in the owners' proposal that need to be exorcized.

First, there is no working definition of what "hockey related revenue" is in their proposal.  Therefore, the players have no idea the size of the pie they would be splitting with the owners, and what revenues the owners would potentially keep for themselves.  This is the most crucial issue in the whole process, and the players would need some concrete definition before even considering signing any agreement.

Second, and most damning for the vitality of this proposal, was the provision about "making players whole" for the absolute reduction in salaries over the course of the CBA.  The players are understandably unwavering about wanting to be paid the full value of the contracts they have already signed.  What the owners suggested is that the players, not the owners, compensate those who lost money in years one and two of the CBA through their profits in years 3 through 6.  Outside of the simple arithmetic that the players would obviously not have a 50-50 split over these years, and would already be facing cuts in their slice of revenue, is the absurd concept that all of the players would have to subsidize some of their own contracts.  Though the rest of the proposal has its good and bad points, these two facets are the true dealbreakers.  And for the NHL's talk of "shared sacrifice", there is little being sacrificed on the part of the owners for the player's benefit.

The NHLPA countered with three proposals of its own.  Two of the plans include revenue shares being based on growth, as opposed to the set 50-50 split offered by the league.  The third plan essentially offered that the NHLPA would accept the 50-50 revenue split if the owners would agree to pay the players all the money they were owed on their current deals.  All three counter-offers were quickly rejected and Bettman left the negotiations to head back to New York.

It is difficult to say that the NHL is negotiating in bad faith, because it hardly appears they were negotiating at all.  The reality is that anything they present to the players union is going to be modified, which is a normal part of any negotiation process.  Instead of staying in Toronto to continue negotiating with the players, the NHL summarily rejected the NHLPA's counter-proposals and left the negotiating table.  

They are also continuing to lose the PR battle in this matter, despite the expert help of Mr. Luntz.  The title of their proposal included language indicating that this offer was intended to save the full season and was in the interests of the fans.  Their tactics clearly show that the fans are of little concern, when they refuse to participate actively in a real negotiation process.  

The bottom line is that the NHL's most recent proposal is one that should have been made months ago and although flawed, can provide the foundation for the next CBA.  That is, of course, if the NHL decides to stay at the table after their offers get modified.  Everyone knew the revenue share was going to be approximately 50-50.  That fact that is has taken this long to get here is a direct reflection of the owner's unwillingness to engage in true negotiations.  And as a result, the fans, the team and stadium employees (who are too often forgotten in all this), and the game suffer.

Tags: Law, NHL, Sports, Sports Law

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