At a critical point last week – with its self-proclaimed best offer on the table, its deadline to save a full season fast approaching – the NHL allowed team executives a 48-hour window to answer players' questions about its latest proposal.
What's wrong with that?
Well, here's what: The NHL did not tell the NHL Players' Association first.
Neither NHL commissioner Gary Bettman nor deputy Bill Daly wrote a letter or sent an email or made a phone call or typed a text to their NHLPA counterparts – executive director Don Fehr and special counsel Steve Fehr – giving them a simple heads-up.
The NHL did issue an internal memo, outlining ground rules to make sure no one did anything illegal – like negotiate, press for a deal or encourage dissension in the ranks.
But clearly the NHL is frustrated and tired of its message passing through the Fehrs' filter. That explains why the league – despite Bettman often saying he doesn't negotiate publicly – posted its latest proposal on its website last week. That explains why the league would attempt an end-around.
Was it necessary? That depends on whether the Fehrs have been giving inaccurate or incomplete information to the players about the league's proposals, and so that depends on whom you talk to, whom you believe.
Was it effective? Was it worth it? We'll see. Even if you give the league the benefit of the doubt – that this was just about information, not infiltration – this could be another mistake.
It seemed sneaky. It looked like an attempt to undermine the union. It fed the perception that the league cannot be trusted. If anyone stepped across the line, it could open up the league to charges of unfair labor practices.
Instead of clearing the path to a deal, it might have created yet another obstacle. Bare minimum, it created another sad sideshow.
"Club executives were provided an opportunity to respond to Player inquiries on our most recent proposal and on the status of bargaining generally for a limited period of time," Daly wrote in an email. "Clubs received strict and unequivocal guidelines for these communications, and were directed to advise Players to work through their Union. …
"We consider it a non-event."
Problem is, the union considers it something else.
The PA version: Most of the contact was initiated by team executives, not by players. One player received a text from an owner with whom he had not spoken in months. Others received calls from executives offering to answer questions. It came off as a coordinated campaign.
Team executives are prohibited from speaking to the players and the public about collective bargaining under NHL By-Law 17.17. They are subject to massive fines, like the $250,000 one the Detroit Red Wings swallowed when senior vice-president Jimmy Devellano spoke out of turn. And now they can talk? And only now, as NHL leadership took minutes to reject three NHLPA proposals, with the clock ticking on an 82-game schedule?
"Most owners are not allowed to attend bargaining meetings," Steve Fehr told the Canadian Press. "No owners are allowed to speak to the media about the bargaining. It is interesting that they are secretly unleashed to talk to the players about the meetings the players can attend, but the owners cannot."
To be clear, it is nearly impossible to independently verify how much contact was made between team executives and players, who initiated the contact in how many cases and whether anyone crossed the line. It remains to be seen whether the union has a legal case.
The memo warned team executives to stay inbounds.
"We understand that some of you are being contacted by one or more of your Players and that your inability to respond substantively is creating some awkwardness in your relationships," said the memo, obtained by Yahoo! Sports.
The memo said NHL By-Law 17.17 would not be applied through 11:59 p.m. Friday provided executives followed the rules.
"A failure to follow these rules can both set us back in our effort to resolve this work stoppage and cause serious legal problems," the memo said. " … [The rules] have been designed in light of the fact that the NHLPA is, in fact and in law, the sole collective bargaining representative of the Players and that any effort to motivate Players must be to have them act through their union, not instead of or in opposition to it.
"As a matter of labor law you are permitted to express the views and opinions of the Club and the League concerning the proposal currently on the table.
"YOU MAY NOT: 'Negotiate' with a Player. This means you may not explore alternatives or variations to the proposals on the table from either side because that would be prohibited 'direct dealing.' "
In the NHL's mind, as long as the league is complying with the law, its communication policy is an internal matter. This is none of the union's business. This is only an issue because the union has made it an issue. This is a distraction from the union's unwillingness to negotiate.
But NHL leaders have to understand whom they're dealing with – and that this goes beyond the law. The owners are dealing with the Fehrs, veteran sports labor litigators who aren't afraid to go to court if they think they have a case, even if it's a long shot. (The Fehrs already have attempted to have the lockout declared illegal in Alberta and Quebec.). The owners are dealing with players, who aren't lawyers or negotiators, but athletes with hot emotions and long memories.
The players focus on what they gave up during the 2004-05 lockout – an entire season of their careers, a salary cap, a 24-percent rollback – and not how well they did under the last agreement. They focus on the league's first offer this time – 43 percent of hockey-related revenue, severely restricted contracting rules – and that colors how they view what is on the table now.
There was logic behind the NHL's first offer. It was along the lines of the first offers of the NBA and NFL in their recent negotiations. It set the midpoint for the hockey-related revenue split at 50/50. What was the NHL going to do, start at 47 percent for the players? Then the midpoint would have been 52, and Fehr could have negotiated toward that. Assuming the league's end game is about 50/50, the sides actually might have been farther apart right now.
But the NHL did not account enough for the resentment and mistrust left over from the last negotiation, that the players wouldn't see it as a starting point but as a rallying point, that it wouldn't bring them to the table but drive them away. It backfired from that standpoint.
And so might this.
The players feel bullied. They feel they can't trust the league. They know they are going to give up a ton when this is over, but they are trying to hold on to what they can, including their dignity.
They have to get over their grudges and be realistic, but is the league helping or hurting its cause? Is the league making the players question Don Fehr or line up stronger behind him?
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