Wednesday, February 16, 2005
Lockout's future holds myriad possibilities
By Scott Burnside
Special to ESPN.com
With the cancellation of the 2004-05 season -- a first for a North American sports league -- the NHL has started down a path into the unknown.
How long with the lockout last? Will the league use replacement players? When will negotiations resume?
There are many theories as to what might happen next, but no one will know where the NHL lockout is going until it gets there.
Commissioner Gary Bettman said the league immediately will turn its attention to preparing for the start of the 2005-06 season, but that may prove to be a futile task. Many experts and observers believe the next urgent need to strike a deal won't be until a year from now, when owners are facing their second straight season without lucrative playoff games and players are facing another season without an income.
Negotiations, whenever they resume, will start from the beginning. All the offers that were made in the 48 hours before the season was canceled and all the concessions that were included -- the league backing off its demand of linking salaries to revenues, the players' association's acceptance of a salary cap and its 24 percent roll back on salaries -- are off the table.
"It's a fresh start. Everything begins anew," NHLPA executive director Bob Goodenow said late Wednesday afternoon.
Here is a look at a number of potential triggers and strategies that might come into play as the next chapter in this unprecedented work stoppage unfolds.
Declaring an impasse
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During his cancellation announcement, Bettman said he wasn't making any "veiled threats," but he cautioned that owners would explore all options in an effort to hold a 2005-06 season.
Declaring an impasse would allow the league to impose its own collective bargaining agreement and open its doors to replacement players. But the many legal hurdles could delay play well into next season, even if the move is successful.
The process of declaring an impasse in the United States is fairly straightforward.
If the owners are confident they can prove they have bargained in good faith but are unable to reach an agreement, they simply inform the union they are declaring an impasse and are unilaterally imposing their final offer (or a variation of it).
The players would then have the option of filing an unfair practice charge with the National Labor Relations Board, challenging the impasse and arguing that the owners did not bargain in good faith.
The NLRB would then examine and weigh several factors in determining if an impasse exists, including the regularity of meetings in mutually agreeable locations, whether there was an exchange of proposals and counterproposals, whether the employer (the NHL) tried to disparage its workers and/or tried to circumvent the union to contact employees directly in an effort to circumvent the process.
While the NHL did reach out to players briefly in the days leading up to the cancellation, it also appears that some NHL players contacted Bettman and/or his top negotiator Bill Daly. It's difficult to determine what impact either of those acts has without looking at the situation as a whole. Oftentimes, there isn't inappropriate conduct, simply hard bargaining.
"There's no exact science," an NLRB regional director said, asking not to be identified given the profile of the case.
Strangely, the league's desire to maintain its impasse posture may actually provide the best chance at a negotiated settlement.
Former Atlanta Thrashers president Stan Kasten, whose tenure as president of both the NBA's Hawks and Major League Baseball's Braves included a number of work stoppages, said the NHL will need to meet quickly and relatively often to be able to prove it's still bargaining in good faith.
"There will be a cooling off period of a month or so, but it can't be much longer than that," Kasten told ESPN.com. "You can't have no communication for three months and no progress. That won't work."
Even if the union sees through the league's intentions, it will be forced to meet at least occasionally, as refusing to do so would support the league's case.
If the league's declaration of an impasse were successful, the players would not be legally bound to return to work. Instead, the situation would change from an owners' lockout to a players' strike, which would set up the use of replacement players.
Those replacement players likely would play under a linkage system. The loss of the 2004-05 season left the owners unable to predict future revenues, but able to argue that the economic dynamics have changed since their last offer, Kasten said. As a result, the owners might be allowed to impose one of their earlier offers.
Still, Kasten cautioned declaring an impasse is not a slam-dunk, as the NLRB is "loathe" to allow them and will search diligently for common ground.
The Canadian conundrum
Even if the NHL is able to declare an impasse in the United States, declaring one in Canada could prove more difficult.
There is significant debate over whether the NHL could use replacement players in British Columbia and Quebec, where legislation prohibits the use of replacement workers.
Part of the confusion is whether or not provincial labor laws recognize the players' association. Individually, NHLers are considered independent contractors and aren't covered by the anti-scab laws, in art because the union does not negotiate their individual contracts. The NHLPA would not comment on whether they would seek recognition in either province.
One provincial labor official, who asked not to be identified, said Canada's pro-union political climate should also be considered. About one-third of Canadian workers are unionized, second in percentage to Italy among countries in the G-8, (a group of industrialized nations that also includes the United States, United Kingdom, Russia, Germany, France and Japan), he said. In Quebec, 40 percent of workers are unionized.
If the NHL tries to introduce replacement players, especially in British Columbia and Quebec, they will face a firestorm of controversy. Hardly a desirable climate for a league that will be desperate to mend fences with its fans, he said.
"It would be viewed as bad business practice and somewhat immoral," he said.
Beyond an impasse, there a number of natural pressure points that might bring the two sides back to the table:
The 2004 draft is scheduled for June 25-26 in Ottawa. Although Bettman said Wednesday there will be a draft before the league plays again, it's unlikely the players would consider it a compelling event, especially since none of the incoming players has a vote with the union, Kasten said.
Gordon Kirke, a Toronto-based sports and entertainment lawyer and former NHL player agent, agreed: "I don't think the draft does anything."
Wayne Gretzky, part owner of the Phoenix Coyotes, said earlier in the lockout that if the season were to be canceled the summer months would likely be void of talk because paychecks aren't on the line.
"From April to October, the players don't get paid, so I can't see us coming to an agreement in August or September," Gretzky said during the World Junior Championship in Grand Forks, N.D.
Because of the preparation needed to begin a season, it's a logical assumption both sides would like to have a deal in place for the start of training camp. Of course, that was the same assumption last year, when a two-day session ended abruptly after one meeting. The lockout was announced a week later.
The owners will have a difficult time finding leverage next fall, as the 300-plus players who found work in Europe this season will be joined by even more teammates looking to secure contracts at the start of the season, rather than after it has begun.
Barring a significant change in philosophy, though, the next critical juncture will be a year from now, Kirke predicted, "because that's when the players are exposed to losing another season."
Given that the average NHL career is about four years, many of the rank and file will be facing losing one half of their NHL earning potential.
From the owners' perspective there will be the specter of losing lucrative playoff revenue for a second straight year, as well as the ominous task of trying to repair relationships with fans and sponsors if the Stanley Cup isn't awarded again.
Still, Bettman pointed out that financial pressure wouldn't play a role in the owners' motivation to forge a new deal.
In the months leading up to the lockout, each ownership group kicked $10 million into a league-held war chest. The commissioner said Wednesday only "a handful" of teams had tapped into the chest "a little bit."
"It's their money to use," he said. "Nobody should be worried about our franchises surviving the work stoppage."
Any speculation that clubs won't have the financial wherewithal to withstand the lockout, regardless of how long it goes, "is clearly off the mark," he said.
Scott Burnside is a freelance writer based in Atlanta and is a frequent contributor to ESPN.com.