Sunday, December 23, 2012

TSN Article: NHLPA Votes to Dissolve - What's Fehr's Next Move?

I wrote an article for TSN entitled, "NHLPA Has Authority To Dissolve - What's Next?". 

The players have voted to grant Donald Fehr the authority to dissolve the NHLPA. 

The question now is what does the NHLPA do? 

It's their move.

Click here to read the article.

Wednesday, December 19, 2012

Your Say Through Twitter: Will You Come Back To NHL Hockey?

I asked people on Twitter if they would come back to NHL hockey when play resumes. Here are some of the responses:


Tuesday, December 18, 2012

Team 1200 Radio Clip: NHL Lawsuit and CBA Talks

Yesterday, I joined Steve Lloyd and Jason York from the Team 1200. I addressed the NHL lawsuit, why they filed it, and why it will be tough for the players to file a lawsuit in a more friendly court.

Monday, December 17, 2012

Collection of TSN Articles on the NHL Lockout & Decertification and Disclaimer of Interest

If you haven't had a chance to read my 3 TSN articles, they  are below. They will help in understanding what on earth is going on in these NHL CBA talks from a legal standpoint. 

Just click on the article to read it.

TSN Article: The NHL Lawsuit & What's Next

I have written an article for TSN entitled, "The NHL Lawsuit & What's Next". I address the NHL lawsuit and what it really means to CBA negotiations.

Here is an excerpt:
Could The NHL Lawsuit & NHLPA Disclaimer End The Lockout Quicker?
Yes. No. Maybe. It's not unreasonable to share the view that the introduction of antitrust litigation will encourage the sides to settle. The players filing their own lawsuit, which would not be a surprise to see this week, may also result in further pressure to get a deal done.

Friday, December 14, 2012

TSN SportsCentre Interview: Decertification & The NHL Lawsuit

I join TSN SportsCentre anchor Jennifer Hedger to chat about decertification, disclaimer of interest and the NHL lawsuit. We cover everything in about 2 minutes. 

Team 1200 Radio Clip - NHL Lawsuit

I joined Dave Gross and Shawn Simpson on the Team 1200 in late afternoon to talk about the NHL's lawsuit. 

Click here to listen to the clip.

Sirius XM Radio Clip - NHL Lawsuit

I joined the boys over at the NHL Network on Sirius XM Radio to talk about today's NHL lawsuit seeking to declare the lockout legal.

ESPN Article: Disclaimer of Interest

ESPN's Scott Burnside interviews me on decertification versus disclaimer of interest. Click here to read it.

Team 1260 Radio Clip: Facts of Life, Silver Spoons, Tootie, Blair, Quantum Leap, Full House & The NHL Talks

I joined Dustin Nielson and Will Fraser at the Team 1260 for my weekly clip. 

We talked about very important issues, including Silver Spoons, the Facts of Life, Lisa Whelchel (Blair), Scott Bakula and Quantum Leap, Jodie Sweetin and Full House, and of course Tootie.

We also addressed how Dustin loves - just loves - the show That's So Raven. He said he watched it "all the time" with his sister and took "a ton of notes" every time Raven-Symone spoke. Dustin made this point: "When is Raven NOT right? Hello? Like NEVER!". Part of this paragraph is not true.

Oh yes - we talked a bit of NHL and the mediation sessions.

Thursday, December 13, 2012

CBS Article: Saints Bounty Decision & What It Means

My CBS article entitled "Saints Bounty Decision & What It Means" digs deep into Paul Tagliabue's decision. We know that Tagliabue reversed the suspensions. Why did he do this and what does this mean for the NFL, Roger Goodell and Jonathan Vilma moving forward.

Here is an excerpt:
Former NFL commissioner Paul Tagliabue has reversed commissioner Roger Goodell's suspensions of Jonathan Vilma, Anthony Hargrove, Scott Fujita and Will Smith. This is despite finding the existence of a bounty program that so deeply mutated into something disturbing and misguided. 
So how to reconcile these findings? Below are the key points distilled from Tagliabue's very legal decision (click here to read his decision).
What is the takeaway from Tagliabue's decision?
Let's start with what it's not. This decision does not stand for the principle that if a coach tells a player to intentionally injure another player, and he does it, he will not be held responsible.

ESPN: NHL Mediation

I was interviewed by Scott Burnside from ESPN on the value of a second round of mediation and the removal of Donald Fehr from negotiations.

Click here to read the article (scroll down a bit past Lebrun article).

TSN Radio Clip: NHL Lockout

I join Jim Tatti and Scotty MaCarthur at TSN Radio to discuss the NHL lockout. We covered a lot.

Here's a link.

Wednesday, December 12, 2012

Non-Guaranteed Contracts & Saints Bounty Gate

Former NFL Commissioner Paul Tagliabue has vacated all suspensions in the Saints bounty case, while upholding the fines. In doing so, Tagliabue shifted most of the blame from the players to the Saints organization citing “broad organizational misconduct.”

An important question to ask is this: do what extent do non-guaranteed contracts encourage players to ignore their better judgement and comply with the direction of a coach?

Non-Guaranteed Deals

NFL players don’t have guaranteed contracts, which means they can be cut if they are under performing. While it may not seem reasonable or fair, this condition of employment was collectively bargained by the NFL and players, and as a result, that’s how things are for the players.

However, it is reasonable and fair to ask whether non-guaranteed contracts make events like the Saints Bounty program more likely. 

When you look at the surrounding circumstances, they are a contributing factor.

NFL Coaches Are Powerful

Perhaps more than any other sport, NFL players fear their coaches. NFL coaches often act as de facto general managers. They can cut or sit players if they are not performing as directed. Indeed, NFL coaches wield a lot of power. Players appreciate that coaches have the power to impair their careers, or worse, end them.

Tagliabue agreed, writing this in his decision:
NFL players on average have short careers; their careers can end suddenly through injury or declining skills; players want to be good, cohesive members of the team, or unit, not complainers or dissenters; and players accept that they work for coaches, in "programs" conceived by coaches. These are programs for which coordinators and assistant coaches are often specially selected and hired to execute. Here we have a classic example: Head Coach Payton hired Defensive Coordinator Williams with directions to make the Saints' defense "nasty."
In such circumstances, players may not have much choice but to "go along," to comply with coaching demands or directions that they may question or resent. They may know -- or believe -- that from the coaches' perspective, "it's my way or the highway." Coaching legends such as George Halas and Vince Lombardi are not glorified or remembered because they offered players "freedom of choice."
Average NFL Salary & Career Span

About half the NFL population makes about $500,000 or less, and the average playing career is somewhere around 3.5 years (depending on who you ask). Agreed – some NFL players are very well paid, like Brees, Manning and Rodgers. However, many players don’t play long and don’t make a lot of money, which can represent an added incentive to follow the direction of the coaches.

And don't forget, players can and are replaced in the NFL.

Socio-Economic Status

A number of players come from disadvantaged backgrounds and want to avoid a return to that life.

Take DE Anthony Hargrove, who was suspended 8 games for his role in the Saints Bounty program.

When Hargrove was 6 years old, the Brooklyn tenement where he lived with his mother and two of his four half-siblings burned down. He ended up living in homeless shelters and foster care homes until his mother died when he was 9 years old. Later, an aunt in Port Charlotte adopted him. In June 2011, Hargrove's older brother Terence Hargrove died after being stabbed numerous times in North Port Florida. Hargrove himself has suffered from drug addiction and spent a year in rehab.

Was the incentive there for Hargrove to follow orders and injure other players? We can’t know for sure since we can’t crawl into his head. However, you have to wonder if the threat of being cut or benched, together with all that comes with it, may have encouraged his compliance.

Background aside, many players may think twice about not following the game plan. Players who make it to the NFL want to stay there – irrespective of background or previous socio-economic status.

Ultimately, in light of a player’s limited earning potential and limited career length, non-guaranteed contracts may make players more likely to ignore their better judgement and comply with orders to injure other players.

Or at the very least, non-guaranteed contracts may create an environment where a player would seriously think about it.

Tuesday, December 11, 2012

TSN Article: NHLPA Decertification vs. Disclaimer of Interest

I wrote an article for TSN entitled Legal Look: NHLPA Decertification vs. Disclaimer Of Interest. I clear up the confusion between the two, which are used interchangeably.

Friday, December 7, 2012

CBS Article: Why NHL Player Vote is Unlikely

I wrote an article for CBS entitled "Why Donald Fehr Should Not Put Offer to Vote". Here is an excerpt:
There is some talk that Donald Fehr should put the NHL’s proposal to a player vote. The idea is that the players may agree to the deal if given that opportunity.
However, a player vote under these circumstances is unlikely. 

Thursday, December 6, 2012

Critical: Long Term Labor Peace for the NHL

It's critical. Absolutely critical.

The NHL and NHLPA should aim for a long term CBA. It is critical for the health of a league, and particularly so for the NHL.

We've heard that the NHL is proposing a 10 year CBA. Since negotiations started this summer, we have seen all kinds of terms proposed, including 6 years by the NHL and as little as 3 years by the NHLPA.

Health of a League

Long term CBAs are so important in promoting stability and growth of sports leagues. When there is extended labor peace, business partners are more likely to invest in a league long term. In those cases, leagues can more easily position themselves to secure long term deals on media rights, naming rights, season ticket sales, suite sales and sponsorships. The guarantee of labor peace provides business partners with the motivation to spend more for longer periods of time. 

And let's not forget that a long term deal makes it more likely that fans will buy season ticket packages. 

So extended labor peace means increases in revenue and attendance, while also promoting growth and stability. 

The NFL gets it with its 10 year CBA with no opt outs. The NBA gets it as well with a 10 year CBA with mutual opt outs after year 6. 

Record Profits for the Packers

Recently, the Green Bay Packers shattered earnings and revenue records in the year ended March 31, 2012. The team reported that revenue hit a record high of $302M, a $19.4M increase, while net income hit $42.7M, up from $17.1M.

In large part, what did team CEO and President Mark Murphy credit for this increase in revenue? The NFL's 10 year CBA.

"To me the fact we had guaranteed labor peace and a 10-year agreement probably was as meaningful as anything,” said Murphy. “At a local level, we have seen since the new CBA has been finalized, [the team] entering into long term agreements with sponsors, and a new preseason TV package that would have not have been possible without the labor deal.”

That's a pretty powerful - and true - statement - "[it] would have not have been possible without the labor deal". And bear in mind the Packers won the Super Bowl in 2011, which reasonably would have generated excitement, interest and revenue.

NHL Needs A Long Deal

The NHL and NHLPA should not want a long term CBA - they should feel like they need it. To say the least, fans are unhappy. Arguably, in 2005 fans were more likely to indulge the NHL because they recognized the business model was broken. There was no cost certainty with 73% of league revenue going to player costs. However, this time around, NHL fans are far less likely to indulge the NHL. Fans don't see a broken business model in need of an overhaul; they see the players and owners grappling over their share of revenue. This has resulted in an erosion of the NHL goodwill, and in some cases, may cause the NHL and its brand irreparable harm.

One way to try and repair the relationship with fans is by signing a 10 year CBA. This would send a clear message to fans that while negotiations did not go as planned, a real effort was made to avoid another labor disruption in the not too distant future.

As well, extended labor peace will help the NHL repair its relationships with its business partners. The reality at this point is that some businesses have allocated their marketing dollars elsewhere and some may not come back anytime soon. However, the promise of labor peace may be the olive branch that encourages disenchanted partners to return.

And the NHL needs it olive branches.

Wednesday, December 5, 2012

Monday, December 3, 2012

Mediation, Arbitration, Decertification & the NHL Player/Owner Meeting

I had the over under on mediation at 3 days. Lasted just 2.

Now we hear that Donald Fehr has agreed to a player/owner meeting with conditions.

Will it work? What’s next? Should I consider starting a cricket pool?

Mediation Fails

It was unfortunately not a surprise to see mediation between the NHL and NHLPA fail. Sport league disputes that involve billions of dollars very simply do not have a profile for settlement at mediation.

We need only look to the recent past for evidence. In 2011, both the NFL and NBA were locked out, both turned to mediation and both to the very skilled and respected George Cohen and his federal agency, the Federal Mediation and Conciliation Service. However, in both cases, Cohen was unable to bridge the divide.

Since those mediations failed, and others as well (the NHL in 2005), it was not reasonable to expect that the NHL mediation was going to meet with success.

Both Gary Bettman and Donald Fehr are bright and intimately familiar with the key issues at play. It was unlikely that mediation was going offer up an epiphany or give the sides an Oprah-Aha moment that would lead to a deal in principle. It was more likely to give rise to moments punctuated with statement like “I don’t agree”, “I don’t think so” and “Hey, that was my muffin”.

Why Don’t the Sides Go To Arbitration?

Unlike mediation, where mediators just try to facilitate settlement, an arbitrator (of which I am one) renders a binding decision. Absent an appeal, the sides must follow the ruling of the arbitrator.

Wrestling over billions of dollars and complex contract issues, leagues are simply uncomfortable with arbitration. The last thing they want – and that goes for the players as well – is having to live with a deal they hate.

We often see arbitration in labor disputes, where someone feels like they were fired without a good reason. We even see it within the sports arena, where players and teams go to arbitration over things like salary. However, to have a third party decide the fate of a league’s business model for the foreseeable future is a no-go and would never happen.

So forget about arbitration. Zero chance.

Bettman’s Proposal: Players and Owners Meet

An admission that the Fehr/Bettman dynamic is not working, the Commissioner proposed that the leaders on both sides recuse themselves for the time being and let the players and owners negotiate directly.

Yesterday, we learned that Fehr agreed to the player/owner meeting – but with conditions. His brother Stephen Fehr will be present. On the NHL’s side, Bettman has countered with Daly.

The meeting was not going to happen without conditions. At law, inequality of bargaining power between employer and employee is an important legal concept and one that courts take very seriously. It refers to one side having more power than the other side by virtue of their position and knowledge. Under those circumstances, the more powerful side can secure more favourable terms of settlement simply by virtue of the power imbalance. 

That’s why you will often see contracts include a clause that provides that the sides have sought independent legal advice. And that’s why contracts with minors are generally unenforceable.

And that’s why players have agents and a Union leader.

In the case of NHL owners and its players, there is unequal bargaining power. The owners operate in the complex and sophisticated world of business on a daily basis. They are comfortable and experienced with that setting. Most players, however, don’t have that comfort or experience. And why should they? They are hockey players that have not had the chance to gain the requisite level of expertise in the field of business.

As well, the owners are the bosses, and there is an inherent imbalance as a result of the employer/employee relationship.

It would be unreasonable to ask an owner to jump onto the ice. It is equally unjust to ask a player to jump into the boardroom. The players may well be very capable to grasp the issues. However, they lack the experience and confidence required to bargain effectively.

So Fehr agreeing to the proposed player/owner meeting with conditions is no surprise.

What If The Meeting Doesn’t Work?

If Fehr and company conclude that there is no room for compromise, the NHLPA could elect to dissolve itself by way of a disclaimer of interest with a view initiating antitrust litigation. The first goal in that case would be to ask a court to declare the lockout unlawful and lift it. If that happened, the NHL would have to resume operations (unless it appealed – which it would). The NHLPA would probably bring the lawsuit in a jurisdiction favourable to players, like California.

However, if the NHL believes that the threat of the NHLPA dissolving itself is very real, the NHL could sue first. They would do this in an attempt to secure a court in a jurisdiction (like New York as the NBA did) that favours the owners. Filing lawsuits first is a good way to try and get a favourable court. With two lawsuits about the same thing in different courts, we would likely see a fight over which court should hear the case. Messy.

Ultimately, the NHL need only to look to Marvin Miller’s legacy, the history of the MLBPA and Fehr’s 24 years as head of the MLBPA to understand why the NHL’s current proposal has not gained traction.

Little will change with a player/owner meeting unless something is given up. It’s less about who is talking and what is being said.

In fact, it's possible that the players may be more emotional than Fehr (actually, bet on it), and a meeting that is not handled with skill and care may set things back, rather than advance them.

Sunday, December 2, 2012

TSN Radio: Naylor and I Chat NHL

I got riled up again. I joined Dave Naylor with TSN Radio to chat NHL. We talked decertification, mediation and why this hasn't settled.

Click here to listen.

TSN Radio Clip: Next Steps in NHL Dispute

I joined Jim Tatti and Scott MaCarthur with TSN Toronto Radio to talk about the failure of NHL mediation and next steps. Logically, we also cover the smash hit TV show, Love Boat.

Just a thought - Gavin Macleod may just have the right touch to bring the parties together.