Disclaimer deadline looming large over talks
January, 1, 2013
By Scott Burnside | ESPN.com
NEW YORK -- Another day of multiple meetings, conference calls and reporters huddled against the cold on Manhattan sidewalks marked another tentative step toward an end to the NHL lockout.
But while both sides continue to play coy about how much forward traction has been generated since the league presented the players with a comprehensive proposal on Dec. 27, know this: the next 24 hours will prove crucial to finding a resolution to a lockout that will reach its 109th day on Wednesday.
Never mind needing to get a deal done by Jan. 11 in order to get hockey players back on the ice by Jan. 19; the real clock to watch is the one ticking toward Wednesday’s midnight deadline for the NHL Players’ Association to file a disclaimer of interest that would dissolve the union and set the table for a series of antitrust lawsuits against the NHL and its owners.
As the players and owners continued to try to work through issues of pension funding, escrow caps, salary cap levels and transitional rules to a new CBA, the threat of disclaimer looms large even as meetings stretched into New Year’s Day night.
At the most basic level, if the players allow their self-imposed Jan. 2 deadline to file the disclaimer of interest pass, it is a clear signal that a deal is imminent.
If, however, the union files the disclaimer, it throws the process into a state of uncertainty at its most delicate stage.
NHLPA executive director Donald Fehr has not commented on the disclaimer strategy -- he said Monday it was an internal matter -- while commissioner Gary Bettman sidestepped the issue when the two sides broke shortly before 10 p.m. Tuesday.
"It's not something we're focused on," Bettman said.
When the union voted overwhelmingly to give the executive committee the power to file the disclaimer of interest, it established a deadline of Jan. 2 to employ the strategy. If the deadline passes, it doesn’t mean the issue can't be revisited but it would take another vote to give the executive committee the power to disclaim interest.
So while artificially imposed by the union, Wednesday’s deadline has become a bellweather for whether a solution is nigh or not.
If the union does file the disclaimer of interest, the two sides could continue to negotiate and complete a deal, although technically Fehr would not represent the players because the union would no longer be representing the interests of the players as a whole. Instead, the players would have to have legal counsel represent them in talks with the NHL. The NBA did just that when striking a deal 12 days after the NBA players filed a disclaimer of interest.
The NHL could respond in like fashion, continuing to work toward a deal, but the NBA and its structure is a completely different animal and there are mixed signals as to how the process of negotiating a new collective bargaining agreement would proceed with the NHL if the disclaimer of interest is filed.
Given the acrimony that has existed between the two sides, there is the potential that the move could prompt hard-liners on the ownership side to take a more rigid stance on negotiations, perhaps undoing any of the progress made since the owners tabled their last, most comprehensive offer on Dec. 27.
“The disclaimer deadline can act as an impetus for getting a deal done. The NHLPA may well elect to disclaim if no deal by tomorrow,” sports labor lawyer Eric Macramalla, a partner in the Gowlings law firm in Ottawa, told ESPN.com Tuesday night.
“If the players file a disclaimer, they will have the option of filing a lawsuit. However, I suspect they won’t file suit unless they believe they can’t bridge the gap. I don’t believe that is the case just yet. Fehr has said the sides are close, so it would be a surprise to see a lawsuit filed,” he said. “However, if for some reason we hear that things have fallen apart, it then becomes a possibility.”
Tuesday marked another day of counteroffers. After examining the players’ counterproposal through most of New Year’s Eve, the owners presented the players with another comprehensive document.
“They did make a comprehensive response to what we gave them yesterday,” Fehr explained.
“We asked a couple of questions. Now what we have to do is go through the document, try to make some sense out of it, compare it and see what the appropriate thing is to do next. And that’s what we’re going to do. We’re going to start tonight. We’ll continue in the morning; we’ll be in touch with them in the morning. There’s really not anything else that can be said at this point."
Tuesday also continued a pattern of very little in the way of detail emanating from the talks.
"The fact that we're involved in a continuous process is something that I'm glad to see, but we're clearly not done yet," Bettman said.
Asked about what he expected the players’ response to be, Bettman would not bite.
“I don't think it helps the process to give what our expectations are right now," the commissioner said. "It's up to the players' association to come back to us now in response to what they've been given this evening."
The reticence for either side to speak out about the details of the to-ing and fro-ing of the talks at this critical juncture speaks to the urgency of needing to get a deal done to save at least a portion of the season.
Neither side, it appears, wants to be the one that upsets the kind of traction that has been almost entirely absent through this process, or at least the traction that appears to have taken place because the lack of characterization of where the two sides are at also makes it almost impossible to know exactly how close they are to a deal.
The feeling is that they are closer than they were a day ago and the belief was that they were close Monday.
But with the NHLPA’s disclaimer deadline approaching, that question will be answered one way or another on Wednesday.