Lockout theater: CBA talks between NHL and NHLPA fall apart in dramatic fashion
NEW YORK – It was theater, a tragicomedy, at a Times Square hotel a block off Broadway. First on stage was Don Fehr, with the players behind him like a chorus line. As the executive director of the NHL Players' Association told the audience how the union had given the NHL a "clear outline" to end the lockout – knowing full well the proposal had not met the owners' explicit conditions – his brother's iPhone rang.
Steve Fehr, the NHLPA's special counsel, tried to answer but had to let it go to voicemail. He checked it after the uplifting press conference, as the players gave hopeful interviews to reporters, and heard the news: the owners not only had rejected the players' proposal, but had pulled key lements of their own proposal off the table.Surprised?"No comment," Steve Fehr said.
"Obviously, you'd like to make a deal," he said with a laugh. "But this is a very up-and-down process."
The players were hushed and herded back on stage in silence. Steve Fehr checked his phone and whispered something into the ear of Winnipeg Jets defenseman Ron Hainsey. Then Don Fehr reemerged and informed the audience that "it looks like this is not going to be resolved in the near future," even though "we are clearly very close, if not on top of one another."
For the finale, it was NHL commissioner Gary Bettman and deputy commissioner Bill Daly, blaming Fehr for "spinning us all into an emotional frenzy that maybe we're close and we're going to be playing hockey tomorrow" – deflecting attention from the fact the owners were driving the sides farther apart.
"Actually, it's not the first time he's said we're close when we weren't," Bettman said. "I don't know why he did that, especially when he knew the parameters that had been laid out last night and what had evolved over the week. I find it almost incomprehensible that he did that."
"We went in great detail as to how they didn't meet those parameters, and we both said, 'We don't know where we go from here. We don't have any ideas with respect to next steps,' " Daly said. "They knew there was a major gulf between us, and yet they came down here and told you that we're close and we could have a deal."
We can only hope that this (bleep) show was for show, that it was all part of a brutal negotiation full of slick strategy and stupid stunts.
We don't know if Bettman is bluffing or really means it this time, whether this will get the union to crack and the players to turn on Fehr, the way they turned on his predecessors. We don't know if Fehr is being brilliant or badly misreading the situation, whether he will get a better deal for the players or make this worse for them. And we won't know until this ends – possibly after the union dissolves, antitrust cases are filed, another season is wasted and a growing game shrinks.
But we do know this: There was a chance for someone to be a hero this week, for the season to be saved like a damsel in distress, and while some auditioned for the role – like Pittsburgh Penguins’ co-owner Ron Burkle and captain Sidney Crosby – both of the leads were villains again.
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Look at the players' latest proposal on the surface, and Fehr is right. The sides are clearly very close – or should be. As he said: "After the positions the players took today, there doesn't seem to be very much room [between the sides], certainly not unbridgeable room."
The players accepted the owners' offer of $300 million in "make-whole" money or transition payments, which are intended to cushion the blow to existing contracts as the players' percentage of revenue drops from 57 to 50. The players were at $393 million, and now Fehr said: "We think there is a complete agreement on dollars."
The players bent on contracting issues. They accepted a term limit on individual contracts, proposing a maximum of eight years. They accepted a limit on back-diving, cap-circumventing contracts, using existing rules while requiring the lowest year be at least 25 percent of the highest year.
The players bent on the length of the collective bargaining agreement. They proposed eight years with an opt-out after six, when they never wanted to go longer than five years before – and the league had proposed six- and seven-year deals before this week.
What the sides needed to do now, Fehr said, was talk about transition rules.
After giving up so much – most notably in the percentage of revenue – they had given up even more. After complaining they were getting nothing in return, they claimed one small victory: a pension plan, funded by their own money. This was a reasonable offer. This was progress – or should have been. Even if the owners said no, they should have wanted to keep negotiating.
"As players," said Phoenix Coyotes captain Shane Doan, "we want to play."
Still, this wasn't going to fly, and Fehr knew it.
The sides tried a new approach this week, officially at Bettman's suggestion. No Bettman and no Don Fehr in the main room. It turned out to be just Daly and Steve Fehr with six owners – including four fresh faces – and a group of almost 20 players. The idea Tuesday was to talk big picture and find out what both sides really needed. Things went well. There was hope on both sides. The optimism carried into the NHL's board of governors meeting Wednesday.
Then the optimism "almost inexplicably disappeared," in Bettman's words, when the sides talked specifics after the board meeting. The owners offered the $300 million in "make-whole" money, up from $211 million. The players said their priority was now a pension plan, when that was not their priority in the past.
"The union's response was shockingly silent," Bettman said. "There was almost no direct reaction. It was, 'Thank you. We'll take the hundred million dollars.' The owners were beside themselves. Some of them I had never seen that emotional. And they said they don't know what happened, but, 'This process is over. Clearly the union doesn't want to make a deal.' "
The players wanted to keep talking, and cooler heads prevailed. The owners made another offer. They agreed to the pension plan, and they backed off some contracting demands, leaving arbitration rights and free agency eligibility as they were under the old CBA.
But as part of that, they drew three lines in the sand: The owners had to have individual contracts limited to five years, with teams allowed to re-sign their own players for seven. Daly called it "the hill we will die on." They had to have a 10-year CBA with an opt-out after Year 8. And they could not accept transition mechanisms like compliance buyouts and escrow caps that would pay players outside the system.
"We got a response that quite frankly was insulting to our owners," Daly said. "They wanted to leave the room. The players asked them to stay. They considered that. They went back to the players and said, 'We'll stay, and we'll reengage if you agree to the three things that we say are important to us.' "
"We needed to have those key elements; we don't need movement to those key elements," Bettman said. "We needed those key elements because that was as far as we could go in light of everything else we had put on the table."
The players demanded restrictions be lifted so Fehr could rejoin negotiations Thursday, despite the progress that had been made. They asked for federal mediators to become involved, even though mediation failed last week and the sides were supposedly close.
The owners sent Daly and league lawyer Bob Batterman to hear the players' response. They were looking for a "yes" or a "no." They got a proposal instead. After an hour-long meeting, after going over where the players had fallen short, Daly and Batterman left.
Then Fehr took the stage.
"What we got today quite frankly and disappointingly missed the mark on all three respects," Daly said. "So for the union to suggest that somehow we're close is cherry picking, and it's unfortunate."
The owners are dictating. The players are cherry picking. The clock is ticking.
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This drama appears to be approaching its climax.
Fehr has been playing rope-a-dope from the beginning, frustrating the owners with his moving targets – from revenue sharing to honoring contracts to pensions – and ignoring the owners' deadlines and ultimatums. It has been effective. The owners' attempts to discredit him and pin him down have failed. The players have seemed united. Bettman has made his best offer multiple times, only to make it better. Little by little, the owners have kept backing off.
Obviously Fehr feels the owners' last best offer still hasn't come. The drop-dead date, though undefined, seems to be about a month away. In 1994-95, the sides reached an agreement Jan. 11 and played a 48-game season. Bettman said he couldn't imagine wanting to play fewer games than that this time, though he waited until Feb. 16 to cancel the 2004-05 season.
Are the owners really going to die on the hill of contract term limits? Are they really going to scuttle a season because the players want the CBA to be two years shorter, or because they want compliance buyouts and escrow caps? Have the owners really taken the entire "make-whole" concept off the table, along with everything new they proposed this week, if that will help get a deal done? That seems asinine.
But what if this really was the owners' last best offer? What if Fehr angered players who wanted to vote on the owners' proposal and the owners sense weakness? What if he ticked off the moderate owners who came to make a deal and aligned them with the hardliners? What if this backfires?
The owners are barred from speaking publicly by their own bylaws, but the four fresh faces released statements Thursday night. Burkle: "I hope that going backwards does not prevent a deal." The Toronto Maple Leafs' Larry Tanenbaum: "I question whether the union is interested in making an agreement."
Obviously the owners aren't afraid of the union's nuclear option – dissolving the union via a disclaimer of interest or decertification. Bettman said the board of governors was briefed on the possibility Wednesday and the lawyers don't feel it would have the impact others do. The league feels the union wouldn't win in court, the players wouldn't have the guts to try it, or both.
"It's easy to say, 'Well, just keep negotiating. Keep offering more and more and more and more,' " Bettman said. "At some point, you have to be in a position to say, 'This is what we need. This is what we need as a league. This is what we need as a game. This is what our 30 clubs need to be competitive and healthy.' And if you don't have that, you have to make the tough judgment and the tough calls."
The bottom line remains the same: The owners are backing off demands; the players are making concessions. The sides are close enough to make a deal. They should be playing hockey. But Bettman and Fehr are too busy playing other games, and we're still waiting to see who will blink.
It isn't curtains for the season, not yet, but this act got old long ago.