Here we go. The NHL beat the NHL Players' Association to court Friday, filing a complaint to confirm the legality of the lockout, simultaneously filing an unfair labor practice charge, all because word leaked that the players will vote whether to give their executive board the power to dissolve the union.
Look, the league has got to do what it's got to do legally. But you know what it really should do? You know what it still can do?
The right thing.
And I don't mean the right thing in an indignant, high-and-mighty, moral way. I mean the right thing in a clear-headed, practical way – the right thing for the game and the business, the fans and the sponsors, the players and, yes, even the owners themselves.
The NHL needs to end the lockout.
The owners need to accept the players' proposal as it is, if that's what it takes – and I don't even think that's what it will take. They need to bend on a couple of key issues, and they need to haggle over the other details, and they need to declare victory and drop the damn puck.
Because they've won already. The only question is the final score. And if they have to win in court, too, it's really self-defeating.
This ridiculous situation has escalated again because news broke Friday morning that the NHLPA membership will vote in the near future whether to give the executive board – the 30 elected team representatives, the driving force of the organization – the power to disclaim interest.
If the NHLPA disclaims interest, that means the union no longer represents the players in bargaining. This could speed up the process and lead to a CBA settlement, as it did last year in the NBA, or it could lead to a canceled season and chaos.
The players would be free to file antitrust suits. While the players would be giving up the benefits of a collective bargaining agreement, like guaranteed contracts, the owners would be risking paying triple damages and losing their system, including the salary cap.
Maybe the leak was inadvertent. Maybe it was an intentional warning. Maybe it was done to provoke this specific response, so the league would take the PR hit for starting the legal fight. I don't know. NHLPA officials would not comment.
But this seems obvious: The players don't really want to go through with it.
If they did, they'd have done it by now, and they haven't done it yet. The executive board voted Thursday night to call a vote of the membership. For the union to dissolve, the membership would have to vote to give the executive board the power to disclaim interest, and then the executive board would have to decide to do it. We're still two steps away.
But the players feel they have given and given and given in this negotiation without getting anything back, and because the owners aren't budging at this point, they feel boxed in a corner. They are running out of options. If it's take it or leave it, leaving it means blowing it up.
The NHL is not scared. The board of governors met last week at the offices of the league's law firm, Proskauer Rose, which went through this in the NFL and NBA lockouts. If this is following the Proskauer Rose playbook, there must be a section on defending a disclaimer. I'm guessing these preemptive moves are on Page 1.
"The board was completely and thoroughly briefed by counsel on the subject," said NHL commissioner Gary Bettman last week, "and we don't view it in the same way in terms of its impact as apparently the union may. I don't know. We've never discussed it with the union."
Fine. But even if the owners are confident the courts will rule in their favor, is it worth the risk that they might not? Do the owners want to fight NHLPA executive director Don Fehr and special counsel Steve Fehr, who won those famous collusion cases in baseball and have frustrated them throughout this process? Is it worth the cost and the trouble? Why continue to alienate your players, while continuing to alienate your customers and partners at the same time?
The NHL had an argument earlier, when Fehr was dragging his feet and the players were clinging to unrealistic positions. I made those arguments then. But not now, not anymore.
First, Fehr never fought the salary cap, even though he openly abhors it. The players have agreed to drop from 57 percent of hockey-related revenue to 50, which the owners targeted from the beginning – by Bettman's own admission. They have dropped the idea of a guaranteed share. They have accepted the concept of maximum contract length, when there was no limit before, and they have proposed ways to stop back-diving, cap-circumventing contracts. They have accepted the idea of a long-term CBA.
And what have they gotten?
If it's still on the table, which it technically isn't, they have gotten $300 million of "make-whole" money. That money was part of contracts already signed and won't come close to making them whole for the drop to 50 percent of HRR, even factoring in a typical escrow deduction.
They have gotten a pension plan, funded from their own share. They have gotten increased revenue sharing, which is offset by their concessions. They have gotten to keep current entry-level, arbitration and free agency rules, which they already had – and which they won for accepting a salary cap and 24-percent rollback during the bitter 2004-05 lockout. They have gotten some quality-of-life things, too, like single hotel rooms on the road for everybody, but that's the main stuff.
Still, the owners want more.
They want a 10-year CBA with an out after eight years; the union has proposed an eight-year deal with an out after six. They don't want compliance buyouts or caps on escrow; the union wants to talk about transition rules. They want contracts limited to five years – or seven years for teams re-signing their own players – while the union is at eight. They want salaries to vary by no more than five percent each year, while the union wants current rules, plus the lowest year to be at least 25 percent of the highest year, plus another rule. If a player retires early, a formula would turn the previous cap advantage into a penalty.
Yes, the owners failed to lock down the details in the last two CBAs and regretted it later. Yes, if this works out like last time, the players probably will do well over the course of the new agreement, even if they won't do as well as they did under the old one. Yes, this is the only chance the owners have to get it right.
Yes, team HRR is not league HRR, so weaker teams will still pay more than 50 percent of their revenue, even though the league won't as a whole, and that's why "cash-over-cap" and contracting issues are so important.
Yes, the owners have the upper hand when it comes to leverage. And yes, they hate Fehr with a passion.
If Fehr thinks the sides are so close, as he said last week, then why don't they tie up the loose ends – and there are a lot, like the salary range – and put it to the players for a vote? Are the players really going to sacrifice a season of salary and career over this? Do they really want to try it in court?
But just because you have the hammer doesn't mean you're smart to use it. Maybe the players will break, as they have in the past. Maybe the players will turn on Fehr, as they have turned on other executive directors. If so, so what? For what? Because, sorry, it isn't about principles or economics anymore.
Why don't they tie up the loose ends and put it to the owners for a vote? I know Bettman needs only seven owners on his side, but what if majority ruled?
Even if the owners take the players' proposal as is, they will have achieved a 50-50 split. They will have achieved a more restrictive system. After a transition period, they will never pay the players as a group more than they set out to pay them. They will never have liabilities longer than eight years on their books. They won't have crazy back-diving contracts anymore.
If the owners bend on a couple of things, they almost certainly will get the players to accept a 10-year CBA with an out after eight. We could have labor peace for as much as a decade.
Isn't that enough? Doesn't that achieve the league's goals? Doesn't that address the financial imbalance, and if it doesn't, couldn't the owners increase revenue sharing some more? Wasn't competitive balance outstanding under the old rules already?
At the end of the day, the owners need the union and the collective bargaining agreement it makes possible. The owners need the players and the game they make possible.
The players don't need another reason to hate Bettman and Boston Bruins owner Jeremy Jacobs, the chairman of the board of governors. They need a way out of this – a way to accept this CBA, a way to lose with dignity.
The owners haven't given much, if anything. For everyone's sake, they need to give them that.
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