Cross Checks: 2012 NHL lockout

Intrepid reporters Scott Burnside, Pierre LeBrun and Katie Strang are trying to stay warm while monitoring the NHL-NHLPA talks from frigid New York, while ESPN The Magazine's Craig Custance is working the phones from Detroit. Here's their take on the chances we see a new CBA before the end of the week.

BURNSIDE: Call me Dr. Pollyanna but I still think this gets done, if not Wednesday, then Thursday. I don't see the NHLPA filing a disclaimer of interest and I think both sides understand that there is too much at stake to let it go down the tubes at this point in the process. To lose a second full season in eight years is unthinkable and I think both sides get that and get a deal done.

CUSTANCE: The players can let Wednesday night's disclaimer deadline pass in a show of good faith, but it wouldn't take long to scramble and set up another vote that would give the executive committee the ability to dissolve the union at a later date. I say the two sides keep talking, following the same pattern of progress, followed by setback before a Friday breakthrough.

LeBRUN: The two sides are closer than they've ever been to getting a deal done, and if cooler heads prevail, it could certainly get done over the next few days. However, the potential for one final push back definitely exists. The pension snag (the two sides held another small group session on pensions Wednesday morning) must be overcome to get a deal done. The NHL moved a few key issues in its new counter Tuesday night, but not all the way to the NHLPA's liking. So the question will be: When will both sides feel they've finally hit the middle ground and that each side can't move further? As much as Wednesday night's midnight deadline for the disclaimer is acting as a pressure point, I still think the league's Jan. 11 deadline to get a deal done is also a factor, one which could act to give each side a feeling that they can push just a bit more before the 11th hour. But in the end, whether it's over the next 48 hours or closer to Jan. 11, I feel a deal gets done and we have a shortened season.

STRANG: I wouldn't be fulfilling my duty as resident skeptic if I didn't predict things go off the rails Wednesday. Yes, we can interpret the fact the two sides have swapped three proposals in the past six days as progress, but I think trust between the league and union continues to erode, thanks to the snag on pensions Tuesday. Although I don't think the union will resort to filing a disclaimer of interest, I predict negotiations will go sideways for at least a few days, beginning Wednesday. I still believe a deal gets done, but not without at least one more hiccup.

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 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.

Bettman's return to form is a good sign

December, 31, 2012

NEW YORK -- If there is one moment that captured the NHL lockout and all its foolishness, it was the tortured visage of commissioner Gary Bettman a little more than three weeks ago here.

On that night, with talks hitting the rocks after a brief spasm of optimism, the commissioner was red-faced and out of sorts. Normally so sure with his words, he struggled to contain his anger and to stay on point.

It was a shocking departure from the normally self-controlled, precise Gary Bettman that often makes reporters (OK, and some players and fans) groan.

That was the Gary Bettman who appeared outside the NHL offices Monday night, and if there is to be hockey this season, it must be this Gary Bettman who remains at the helm of the owners’ side.

Against a backdrop of curious early New Year’s Eve revelers en route to Times Square, honking horns and sirens on the Avenue of the Americas, Bettman was once again cautious and circumspect in describing almost three hours of discussion on the owners’ latest proposal.

Those discussions led to internal meetings of league officials that were expected to last most of the night and to lead to further negotiations with the players’ association on New Year’s Day.

“We spent a good part of the afternoon with the players' association. They were responding to the proposal we made Thursday, and their response was a comprehensive one, dealing with a full slate of issues that we raised and proposals that we put forth, and we’re in the process of reviewing their response," Bettman said. "We’re going to do that tonight, and our expectation is that we’ll contact them [Tuesday] morning and arrange to get back together, hopefully, certainly, by midday. We’re going to try and turn this around overnight so we can continue the process."

Pressed to characterize the talks or to quantify any progress that has been made, Bettman wouldn’t bite.

“I think it would be premature for me to characterize it and not particularly helpful to the process,” he said. "We really need the time to go through it and that’s something I said we’ll do, turn this around overnight."

Since this process began, it hasn’t taken long for details of every proposal and counterproposal to leak out into the public domain.

Having a transparent process is never a bad thing but often the leaks were meant to reinforce one party’s position over another or to buttress one side’s argument that the other side was made up of intransigent dolts bent on ruining a season and the game.

During the famous Meltdown in Manhattan earlier in December, NHLPA executive director Donald Fehr, flanked by some of the game’s most influential players, including Sidney Crosby, told reporters the players felt they were very close to a deal. But a short while later Bettman and deputy commissioner Bill Daly, both clearly angered at Fehr’s characterization of the process, insisted the opposite was true.

On Monday, though, both Bettman and Fehr were controlled, divulging little.

It might be an oversimplification, but it appears the less that gets said publicly about the how these talks are progressing, it seems the more work gets done.

If that is true, then perhaps we are truly in the home stretch toward getting a deal done that would see hockey return in about two weeks.

Bettman reiterated that Jan. 19 would be the latest possible day to start a 48-game season, the minimum the commissioner said he felt was realistic.

Things could still go off the rails, of course, this being the National Hockey League after all. But one has to imagine that if they were going to go kablooey, it would have happened on Monday.

But given the comments from both Bettman and Fehr, it seems clear that the players’ response to the owners’ proposal was to build on that document. There were questions, of course, and the players have issues with a number of the elements of the owners’ proposal, like a decline in the salary cap from a prorated $70.2 million this season to $60 million next season.

But it doesn’t appear, at least on the surface, that the players followed an earlier pattern of either ignoring league proposals or, as was the case earlier here, introducing new elements like rules governing transition.

Asked if the players had moved off their last proposal, one that was quickly dismissed by the owners, Fehr said they had but would not go into detail.

“The purpose of the discussion was for us to respond, for them to ask a couple questions and for us to explain some points we made,” Fehr added. “If they have further questions tonight, it wouldn’t surprise me.”

Whether Tuesday begets another step toward a deal or not is anyone’s guess.

The players have a self-imposed Jan. 2 deadline to file a disclaimer of interest that would dissolve the union and set up the possibility of antitrust lawsuits in the United States. If the deadline passes, it doesn’t mean the union can’t file at a later date, but they would simply have to vote again to do so.

“The players retain all the legal options they always had. Those things are internal matters we don’t discuss,” Fehr said.

Who knows, if the two leaders continue to keep their game faces on, maybe the deadline will be moot.

NEW YORK -- Like a rusted-out robot left to decay in a back lot in a bad science fiction movie, the NHL is starting to show the first, shuddering signs of reanimation.

Yes, the resumption of hockey is not guaranteed simply because the NHL and its players continue to discuss the league’s latest and most comprehensive proposal in New York City with a face-to-face question-and-answer session on Sunday morning, with negotiations hopeful within the next day or so. But it shouldn’t come as a surprise to anyone that with a deadline looming to play even a 48-game schedule that there are preparatory signs of life.

For instance, from the time the NHL made a proposal in November that would have seen a full 82-game schedule played, the league’s scheduling guru, Steve Hatze Petros, has been constantly working on truncated schedules based on the moving target of a potential start date.

As part of the league’s proposal of earlier this week, it’s believed a start date of Jan. 19 is the last possible date the league imagines for a 48-game schedule. Commissioner Gary Bettman indicated he doesn’t believe playing fewer games would allow the integrity the league needs for a partial season.

That deadline does not indicate that is when the league is hoping games will start. The sooner a deal gets done, the more games can be scheduled, which means there are various models for various start dates floating about. In other words, when a deal is done, there will be a schedule to fit.

Regardless of when a season might start, a source told Sunday that none of the scheduling models at this stage involve games outside of the conferences. During the 48-game lockout-shortened 1995 season, teams likewise played only teams in their conference.

As for on-ice officials, who are among the forgotten casualties of this lockout given that they do not receive any pay and agreed at the outset of the lockout not to take jobs in other leagues, they had contact with league officials a few weeks ago when the league was hopeful of a Jan. 1 start to the regular season.

Although there hasn’t been contact since, it’s expected the officials would have a brief mini-camp, perhaps two days, as a kind of refresher to go over materials covered at the officials’ weeklong camp held in September before the lockout began.

The officials have been receiving weekly emails going over materials covered in September and they have also kept up with a regular weekly rules quiz during the lockout.

“The guys will be ready to go,” Brian Murphy, head of the NHL Officials Association, told

On another front, senior vice president of hockey operations Mike Murphy and the hockey operations staff have been working with the information technology personnel at the NHL’s 30 rinks during the lockout to upgrade technology infrastructure. This dates back to last season’s clock kerfuffle at the Staples Center that allowed the Kings to score a tying goal after time had officially run out in a game against Columbus. The technology upgrades will, among other things, allow better, quicker video access to the NHL’s so-called war room in Toronto of various feeds from the rinks. Had the season started on time in October, the upgrades would have been ongoing through the season. With the lockout, all upgrades should be in place for the start of a truncated season, a league source said Sunday. A memo to that effect recently went out to NHL arena technology staff.
Steve Fehr and Bill Daly touched based Tuesday in a short phone call, and I wonder if it wasn’t for any reason other than to be able to tell us inquiring media types that they touched base for the first time since last Friday.

I’m joking. Kind of.

Still, with no official talks scheduled for this week, I don’t think the NHL is interested in getting back into a bargaining room until the NHLPA either has a new proposal or at least new ideas that would be worth exploring.

In other words, the league is putting the onus on the NHLPA to make the next move.

Which prompted one NHL player to text me Tuesday and say, "Wait a minute, we made the last offer [Dec. 6] and they still think it’s our turn to make the next move? Makes no sense."

Thing is, ever since the experiment with Ron Burkle and fellow owners fell through in the first week of December, the league has played hardball because it believes if the compromises the Penguins owner and his group were offering weren’t enough to get a deal done, then the league thinks NHLPA executive director Don Fehr is waiting for mid-January -- i.e., the 11th hour -- to finally make his move.

Hence why the league has been unwilling to move much off its last offer.

What’s frustrating for moderate players and moderate owners is that both camps feel a deal is oh-so-close, but both sides want the other camp to make the next move.

In the meantime, you can expect more games to get canceled by the end of this week, which could be the last batch of games wiped out before it’s time to either salvage or cancel the season.

I do not think the league will wait until mid-February, like it did eight years ago, to cancel the season. No way this gets past the third week of January without a tentative agreement or a wipeout.

In order to play anywhere from 48 to 50 games, you need the puck to drop in and around Jan. 20 (to play until late June). So that certainly sets up the first 7-10 days of January as the last possible window for bargaining.

Of course, much depends on whether the players file for a disclaimer of interest (decertification). The executive board will find out when player voting wraps up Friday whether it has the authorization to go ahead and file a disclaimer if it chooses to. My guess is the board will indeed get a yes vote from the rank-and-file.

And don’t forget, the board has only until Jan. 2 to act on that authorization. One player told it was important for the board not to get an unlimited timeline with that giant hammer.

So what will come first? Another bargaining session or a showdown in court?

It’s a big game of chicken.

In the meantime, there’s been very little talk of the Olympics. That’s remained on the back burner until the bigger core issues are resolved. But one source told Tuesday that it’s not written in stone the players and owners must make the Olympics part of the next CBA, that there exists the possibility -- if both sides are willing to do it -- to have a side agreement on the Olympics once further talks with the IIHF and IOC are held.

My guess is NHL players are headed to Sochi, Russia, but that’s no guarantee.

Right now, I just hope we see NHL players in NHL rinks. And that’s no guarantee, either.

NHL lawsuit is a pre-emptive strike

December, 15, 2012

It wasn’t an entirely unexpected legal move, but it’s interesting nonetheless. Examining the lawsuit filed Friday by the NHL answers some of the questions raised during decertification speculation in recent weeks. The lawsuit seeks a declaration that the lockout does not violate antitrust laws, but that’s just the beginning.

Perhaps most interesting is a request made by the NHL that says if the judgment rules that a disclaimer of interest or decertification by the NHLPA is ultimately found to be valid, then all standard player contracts signed under the previous CBA would be void and unenforceable.

“In the absence of a valid CBA or collective bargaining relationship, the provisions of the NHL SPCs will no longer have any force of effect,” the lawsuit reads.

So, basically, everybody becomes a free agent in that scenario. Sure, it might lead to two or three years of court fights, but the idea is a wild one to consider.

“I’m pretty sure the Edmonton Oilers won’t like that scenario, or any team with good young players,” said one NHL source. “Steven Stamkos might get $20 million [a season] from the Toronto Maple Leafs.”

Yes, this is the start of the nuclear option.

The move is a pre-emptive strike that argues that any move toward decertification isn’t a permanent dissolving of the union but instead a tactic designed “only to misuse the antitrust laws in an effort to secure more favorable collective terms and conditions of employment and deny the NHL its right to engage in a lawful lockout."

On Friday, colleague Pierre LeBrun reported that the union’s executive board has been cleared to gauge its membership with a disclaimer of interest vote. The lawsuit says that vote is to be taken over the next four days.

Many players and union leadership have been careful in saying decertification is an option of last resort. Still, the lawsuit argues that “many Union members have publicly asserted that they intend to decertify the Union.”

Among the players the league singled out as mentioning decertification as a “strategy” were Ryan Miller, Brad Richards, Ray Whitney, Shawn Thornton, Cory Schneider, Matt Stajan, Dan “Clearly” [sic; should be Dan Cleary], Chris Campoli, Jonathan Toews, Troy Brouwer, Daniel Alfredsson, George Parros and Andrew Ladd.

The lawsuit cites everything from local radio and newspaper interviews to comments from player Twitter accounts. It’s clear the NHL has been watching.

Other points of interest in the lawsuit:

-- According to the lawsuit, the NHL has produced more than 200,000 pages of NHL and team financial information to the NHLPA, “documents relating to officiating records and broadcast contracts, and other highly confidential and proprietary information of the League.”

-- In case you lost track, the lawsuit breaks down all the CBA offers made between both sides: “... the NHL made oral and/or written proposals on July 13, July 25, July 31, August 28, October 16 and November 8 and the NHLPA made oral and/or written proposals on August 14, August 23, August 28, September 12, October 18, November 7 and November 21."

-- What monopoly? The league argues that professional hockey leagues in Russia, Sweden, Switzerland and other European countries are “viable substitutes for the NHL, as evidenced by the fact that NHL players routinely elect to play in a European league instead of in the NHL.” The league points out that there are currently more than 100 NHL players in Europe and that 400 players played in Europe during the last lockout. “For this reason, the impact of the NHL lockout on the market for the services of professional hockey players is minimal.”
A week that produced zero progress at least produced en eye-catching storyline before the weekend arrived.

The NHL Players’ Association sent a strong message to the NHL when news broke Friday that the players’ executive board voted unanimously in favor Thursday night of asking the entire membership of 700-plus players to vote on whether to give the executive board the power to execute a disclaimer of interest.

The key here is that executive board isn’t saying it’s going to definitely go down this route. But it just wants the hammer IF it decides to go down this route.

It’s actually a clever play by the players. On the one hand, you get across your message loud and clear to the NHL, your prototypical pressure tactic to try to get the league to move off its latest offer, and yet you haven’t actually filed the disclaimer of interest. You’re just hinting at it.

Now, it’s not as if the NHL didn’t see this coming. The league, in fact, prepped the board of governors for such an occurrence last week when it met in New York. And in conversations with league sources throughout this lockout, it’s clear they’ve been ready for this.

On Friday, the league made a preemptive strike by filing both a class-action complaint in Federal Court and an Unfair Labor Practice Charge with the National Labor Relations Board.

The league's play here was a preemptive lawsuit to get the court to declare any disclaimer by NHLPA as disingenuous. The Unfair Labor Practice Charge is to establish that threats to disclaim/decertify is bad faith bargaining. Whether or not the NHL gets its way here, that's way above my paygrade and understanding.

But it's official: the gloves are off in a whole new way now in the NHL's labor impasse.

But it doesn’t mean that those moderate owners trying through the grapevine to keep reasonable dialogue going -- look no further than the governor who gave his idea of a solution/proposal to Scott Burnside -- won’t be alarmed by Friday’s news from the NHLPA camp.

What those moderate owners might fear is that the hardliners are winning over the moderates in the player camp and that what seems like such a small gap separating both sides on the key issues might now widen if this thing gets nasty.

And believe me, it will get nasty if the players go down this route. The league and its owners will just bomb the whole season if the players ever actually officially file a disclaimer of interest. That’s my guess, anyway.

So, in the meantime, for those hockey fans who still care to see hockey this season, and I think I can count you on my fingers now, the hope is that the moderates on both sides step up their back-channeling efforts to get a deal done.

It’s clear from my conversations with a few players Friday that if the NHL ever moved its player contract term limit to six years instead of five, and compromised a little more on the transition rules (compliance buyouts), that would be greatly appealing to many players. At least enough to bring a vote, anyway.

My sense is that the NHL would only consider this if the NHLPA put it on paper in an official new proposal. And I’m not saying the NHL would accept it, but I think they’d look hard at it.

Thing is, my sense is that the players want the league to make that its next proposal, not the other way around.

And so while they stare at each other like Grade 9 students at their first dance, the wheels are suddenly in motion on the other end of things -- nasty, nasty legal options that could guarantee no hockey this season.

Let’s hope option No. 1 still wins out.

You have got to be kidding me

December, 6, 2012

NEW YORK -- What should have been a fairly doable mathematical adjustment this past summer has transformed into perhaps the most ridiculous labor impasse in the history of pro sports.

Honestly, I can’t wrap my head around this one.

Are the owners and players really going to let the season get canned over the differences that remain in the two offers?

I would make the argument that the players are crazy to take that kind of financial hit rather than accept what the league and owners offered Wednesday night.

Similarly, the owners are out of their minds if they don’t see elements in the NHLPA’s counteroffer that they can live with to get hockey back this season.

Are we really going to drop the ax on an entire season because the owners are THAT adamant about five-year term limits for player contracts? And are the players THAT opposed to five-year contract term limits that they will let an entire season’s worth of salary go down the drain?

It’s pure madness in my opinion. All of it. Both sides.

NHLPA executive director Don Fehr has done a masterful job throughout this lockout of telling his players to stay patient and wait because the deal would get better. And when owners upped their "make-whole" provision from $211 million to $300 million Wednesday night -- something the league said it would never do -- Fehr was proved right.

Thing is, you can’t wait and wait and wait forever, and believe the offer will always improve. You have to know when the time is right to cut a deal.

To that end, NHL commissioner Gary Bettman promptly pulled the "make-whole" offer off the table Thursday night, as well as other concessions on player contracting rights. The league had been willing to not touch unrestricted free-agent eligibility, the entry-level system and salary arbitration. Now that’s out the window as well.

You know exactly what Fehr will tell his players. That those things aren’t really off the table, that it’s just a negotiating tactic.

Perhaps. Or maybe Fehr just managed to infuriate the most player-friendly owner in the league, Ron Burkle, a man who has won labor awards for his work in his private business life but somehow finally found a place where his negotiating expertise was unable to penetrate. Yes, the Pittsburgh Penguins' owner absolutely wanted to explode Wednesday night.

Conversely, I question Bettman’s decision to halt talks Thursday night. Why not respond to the NHLPA’s counteroffer Thursday night by saying it’s still not good enough but, hey, let’s meet again Friday and keep plugging away?

Well, I’ve got one theory on that. Given reports that players were having intense, sometimes heated debate internally Thursday as they decided how to proceed, it might very well be that the NHL and the owners smell blood. They might believe the players are finally cracking and that by pulling this week’s new elements off the table, they’ll get those players who are questioning union leadership to nullify Fehr and make a deal with the league.

Who knows, maybe their calculation is right about that. But as one player told on Thursday night after the theatrics were done, why wouldn’t the league submit a full formal offer? That’s the only way players would have a chance to vote on it membership-wide, he figured.

Again, good point.

In the end, once again the drama has overtaken the facts on this night.

I don’t believe the two sides are that far apart at all.

One NHL governor told that they were shown both offers from the league and NHLPA in the board of governors meeting.

"I looked at them both and wondered how this thing isn’t done already," he said.

And those were previous offers. Not the ones from the past 24 hours that showed more movement from both sides.

What we need now is for both sides to exhale and get back to the table no later than Monday.

For the millionth time, there is a deal here. Stop the politics and get it done.