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Collusion question goes right to the heart of NHL lockout

Nicholas J. Cotsonika
Yahoo Sports

The alarm sounded as soon as he said "unwritten rule." In his infamous interview last week with the Island Sports News of Victoria, B.C. – the one that cost the Detroit Red Wings a $250,000 NHL fine – Hall of Fame executive Jimmy Devellano invited howls of collusion.

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NHLPA boss Don Fehr had success fighting owners' collusion when he was baseball's union head in '80s. (Getty)

"I will tell you there is an unwritten rule that you don't do that, but they did," said Devellano, referring to the Philadelphia Flyers' signing of restricted free agent Shea Weber to the massive offer sheet that the Nashville Predators matched this summer. "… If you're asking me if it's right, I would say there is, again, an unwritten rule. … We all know it in the NHL, but not everyone follows it."

Not good. Especially not good when the executive director of the NHL Players' Association is Don Fehr and his special counsel is Steve Fehr. The brothers won three collusion grievances against the baseball owners in the 1980s, leading to a $280-million settlement and free agency for affected players.

The NHLPA has not done a serious investigation. The union has been busy with collective bargaining. And even though teams rarely signed restricted free agents to offer sheets under the last labor agreement, it's debatable whether the players would have a case. But that doesn't mean the union isn't taking this seriously and won't raise the issue in the future.

And collusion goes to the very heart of the NHL lockout, now almost two weeks old and threatening the cancellation of regular- season games. The whole point of the salary cap system is to accomplish legally what collusion would accomplish illegally – to hold down salaries and restrict players' rights – and the whole point of this fight is that the owners feel their system hasn't accomplished enough.

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We say the owners need to be saved from themselves. Well, yeah. They do, and they know it. Owners want to win so badly that they will push themselves beyond the point of financial sense, just like players will push themselves past the point of physical sense.

If the owners try to keep themselves in check, they usually fail, and if they succeed, they could be breaking antitrust law. The NHL owners sacrificed the 2004-05 season to force the players to accept a salary cap. Owners want clear boundaries in the boardroom just as players want clear boundaries on the ice – keeping them from pushing too far and, more importantly, their competitors from pushing too far.

In theory, the rules keep the game fair and everyone healthy. The problem is, the rules are imperfect, and people find ways to bend them, break them or elude them altogether. The owners want to tighten the system; the players want to keep it as loose as possible. The owners want to keep each other in check; the players want to keep that in check.

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NHL commissioner Gary Bettman faces a neverending challenge in keeping owners in line. (Getty)

In "Lords of the Realm," a fascinating book about baseball's labor history, John Helyar writes that commissioner Peter Ueberroth would call the owners dumb, stupid and irresponsible for their runaway spending in the 1980s. He would force them to justify their behavior, while making sure to say they were free to do what they wanted and telling his lawyers to stop him if he smacked of collusion.

"He put them through rigorous show-and-tell exercises on their finances," Helyar wrote. "As they came into the quarterly meetings, the owners were handed binders of salary data, organized team by team and detailing total payrolls, deferred pay, money owed to released players and other data. Then, one by one, the owners had to stand up and discuss the numbers and the outlook. The exercise took up much of the session and kept everyone's feet to the fire."

Compare that to a recent column in the Globe and Mail by Ken Dryden, describing NHL commissioner Gary Bettman in the late 1990s and early 2000s. Dryden, the Hall of Fame goaltender who was then president of the Toronto Maple Leafs, said Bettman would criticize the owners' runaway spending "at first forcefully, over time as if possessed."

"He presented elaborate charts: Here's what the league and individual teams take in, here's what we spend," Dryden wrote. "It makes no sense. Here's what winning teams spend, here's what losing teams spend. There's no correlation between spending and performance (there was, in fact, some correlation). It makes no sense.

[Also: Nick Cotsonika: League, union holding out for CBA jackpot down the road]

"He would run a roll call of teams, and one by one take team owners, with all their private business splashed up on a big screen for everyone to see, to the principal's office. Here's what you're doing – you idiot – here are the results you're getting – you moron – and, always prefaced by the antitrust defeating phrase, 'Of course, you have the right, as everyone does, to make any decision you want' – what are you going to do in the future – you total fool."

See any parallels?

Here is where the parallels break down: Ueberroth's tactics worked, Bettman's didn't. The baseball owners effectively froze free agency; the hockey owners kept spending big. The baseball owners regularly used the term "fiscal responsibility," which Helyar writes was a "codeword for short-term contracts, no free agents and owner conformity;" Devellano mentioned an "unwritten rule" that is undefined.

Baseball failed to get a salary cap; hockey succeeded.

"If owners couldn't restrain themselves," Dryden wrote, "Bettman knew they needed a collective agreement that would do that for them."

[More: The Vent: Fans voice outrage over NHL lockout]

When Major League Baseball lost those collusion cases, its CBA included this key line: "Players shall not act in concert with other players and clubs shall not act in concert with other clubs." The NHL's last CBA included no such language. It also said teams had the right to match the offer sheets their RFAs signed, and if they didn't, they could receive compensation in the form of draft picks – the higher the salary, the higher the price in picks.

The NHL could argue that offer sheets were rare not because of an unwritten rule but because of the written rules, which were agreed upon by both sides in bargaining. Teams often felt an offer sheet would be futile, because the other team would match, or that it wouldn't be worth the cost, because it would require a price so high the other team wouldn't match and would result in the loss of as many as four first-round draft picks.

The league could point out that there were still some offer sheets, not none, and that RFAs signed lucrative contract after lucrative contract even without the help of offer sheets.

Finally, the league could allege that collusion works the other way, too. Do agents manipulate the market to make sure their clients receive the highest prices? Did Zach Parise and Ryan Suter work together as unrestricted free agents this summer when they signed matching 13-year, $98 million deals with the Minnesota Wild?

[Also: NHL cancels entire preseason]

Proving collusion is as difficult as proving other slippery, shadowy offenses, like tampering. But here is the potential problem for the NHL: If anyone could do it, it would be the Fehr brothers, and if anyone would try, it might be the NHLPA. Since Don Fehr took over as executive director, the NHLPA has been unafraid to challenge the league, even if the challenge is unprecedented or seems like a long shot. See the realignment battle. See the Alberta and Quebec court cases.

The NHLPA could argue that there doesn't need to be specific language in the CBA barring clubs from acting in concert. Free agency implies that a individual player is free to deal with individual teams, and all you need is antitrust law to keep two or more teams from ganging up to set prices.

The union could ask some hard questions: If the written rules in the CBA are enough, why would anyone need an unwritten rule, too? Did an unwritten rule make offer sheets even more rare than they would have been otherwise?

Why don't more teams do what the San Jose Sharks did in 2010? They signed Niklas Hjalmarsson to an offer sheet. Had the Chicago Blackhawks not matched it, the Sharks would have had a defenseman they wanted. The 'Hawks matched, but it still worked out well for San Jose. The Blackhawks' salary cap problems worsened, and they walked away from an arbitration award to Antti Niemi. The Sharks signed him and got a goaltender they wanted.

What are GMs afraid of, barn fights? Did teams shy away from hurting each other when they could have been – or should have been – taking full advantage of the CBA, and did that hurt players?

Though restricted free agents have signed lucrative contracts even without offer sheets, how much more lucrative could they have been with more offer sheets? Even though salaries are capped, individual players might have been affected. And what about issues beyond pure salary, like an RFA having some control over the length of his contract or where he plays?

Maybe there was collusion here. Maybe there wasn't. If you're the union, wouldn't you be going nuts right now if you thought this was an open-and-shut case, CBA talks or no CBA talks? As it stands, you might look into it later, if only to gain leverage or rattle some cages, or you might just try to protect your players a little more in the future, proposing language barring the owners from "acting in concert" in the next CBA.

But if you're the NHL, you don't want to give the union any reason to attack what happened under the last CBA, and you don't want any excuse for your owners to come close to collusion under the next CBA. You want zipped lips during this lockout, and you want your system locked down.

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