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Once Players Accepted 50/50 Split, Lockout Should Have Ended

So says Ron MacLean of CBC and Hockey Night in Canada.

 

Filed in: NHL Talk, NHLPA, | KK Hockey | Permalink
 

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Of course it should have ended after the players agreed to 50-50.

The season should never have missed a game.

Where I disagree with Ron is in the why it should have ended.

What’s happened here is that the PA gave away between 32 and 34 games worth of revenue (39-41.5% of a full season), of which their share assuming the 3.2 B of last year would have been 624 million to 664 million dollars under the 50-50 split.

For that, they got… what?  A marginally better pension that can be re-opened at any CBA down the road?  50% of HRR instead of their old 57%?  Term limits at 7/8 years instead of 6/7 years?  An extra 4.5 mil per team of cap space over one year (value < 135 mil)?  Even the big win of ‘make whole’ is largely a charade because it’s a) deferred and b) rolled mostly into the cap number of this year and next.

And in addition to that lost 624-664 they’ll have whatever short term revenue damage the lockout inflicts.  I don’t think it will be much or that it will last long, but still.  Dollars are dollars.

What I said within a few days of the NHL’s opening offer at 43% was that the deal was going to be at 50-50 of HRR under previous definitions.  All the PA did was spend 624-664 million dollars of their own money to get there.

But hey, they showed fight and toughness and solidarity.  Yay.  That really worked for them.

Posted by HockeyinHD on 01/06/13 at 06:56 PM ET

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Ron has perfected sanctimonous second guessing. He has made a career out of it.

Posted by timbits on 01/06/13 at 07:07 PM ET

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sanctimonious, OK smug, it is easier to spell.

Posted by timbits on 01/06/13 at 07:08 PM ET

bezukov's avatar

Posted by HockeyinHD on 01/06/13 at 06:56 PM ET

This wasn’t a strike, it was a lockout.  Under any labor-bargaining paradigm, a lockout is an action of ownership.  There just isn’t anyway to color the dispute as the union’s fault unless you’re going out of your way to be mindlessly fair; or to put the cart before the horse and prove a preconceived notion.

Posted by bezukov from the kids are alright. on 01/06/13 at 08:11 PM ET

redxblack's avatar

Exactly. They could have played without a CBA while negotiating. Both the US + Canada have a status quo period where an expired contract is mostly in place until a new one is agreed upon. The owners wouldn’t go for that, because there’s no “no strike clause” at that point. So the players offered to keep the entire contract, including the no strike clause, and the owners said no. This entire lockout was less about money and more about getting rid of the union. As a result, the players got 7% more than what was initially offered and lost half a season.

Posted by redxblack from Akron Ohio on 01/06/13 at 08:38 PM ET

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As a result, the players got 7% more than what was initially offered and lost half a season.

Considering the players were getting 57% of HRR the league offering 43% it was cleary intended to get to 50/50. This isn’t rocket science, they had no illusion that they would get 43%.

Posted by timbits on 01/06/13 at 08:57 PM ET

phillyd's avatar

They could have played without a CBA while negotiating.

Why does everyone keep saying this? In the NHL, in 1992, they started the season without a CBA and the players struck on April 1st. MLB’s CBA expired in December of 1993 and they walked out in August of 1994. Since then, you’ve seen every major sport, except MLB, have a lockout in some form. The NBA has had 2 that have lost parts of the season, the NFL had one that minimized training camp (no real big loss there except for teams that had rookies or free agents in prominent roles) and the NHL had 3 including the lost season. There is no way ownership in any sport in this day and age will let their season begin without a CBA because the longer negotiations drag on into the season, the more leverage the players get. Right or wrong, that’s just business.

Posted by phillyd from Southern New Jersey on 01/06/13 at 09:27 PM ET

bezukov's avatar

Posted by phillyd from Southern New Jersey on 01/06/13 at 09:27 PM ET

Your point is well taken, but that doesn’t mean they couldn’t have.  Lockouts are needlessly destructive to both labor and capital.  In this case it was about squeezing blood from a turnip.

Posted by bezukov from the kids are alright. on 01/06/13 at 10:10 PM ET

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There just isn’t anyway to color the dispute as the union’s fault

I don’t think the lockout was the union’s fault.  I think the fact that games were missed was the Union’s “fault”, although I don’t really care about “fault” at all.  That’s a peripheral issue.  That’s the plaintive cry of a child… “It’s not my fault!” 

Or Han Solo, maybe.

Anyway, my point isn’t about “fault”, it’s about being really stupid.  It was really stupid of the PA to spend around 650 million dollars of their own money to end up with a deal that was strikingly similar to the one they could have had and not missed a single dollar.

They were going to ‘lose’ this lockout because they had an inferior position from which to bargain.  An NHL season was wildly more profitable for them to play than it was for the owners to play.  Therefore, any cessation in a season hurts the PA way more than it will hurt the owners.

So, they lose.  Smart, emotionless negotiators would have recognized that early on, made the best deal they could without losing real dollars, and then tried to get the next negotiations on a more even footing.  Once the PA got all juiced up about what an evil bastard Bettman was, smart and emotionless went out the window.  Once the league hired Fehr, who isn’t going to be anywhere around the NHL by the next CBA, they threw looking ahead to the next CBA out the window too.

They could have played without a CBA while negotiating.

People keep saying this and they keep being spectacularly wrong.  I don’t know why it’s such a common misconception.

It is impossible to play without a CBA.  It cannot be done.  What you are really saying is that the league could have resumed under the terms of the OLD CBA.

Which means the PA would have little to no interest in bargaining.  It kicks the can down the road a year.  We know this is true because exactly how much negotiation happened in the full year prior to the expiration of the last CBA?  None, right?  Why?

Because there’s no point in negotiation when only one side has anything to lose.  Hell, we just saw the PA pee away 650 million for no real reason at all beyond personal animus… and you actually think they’d have negotiated with more commitment when they weren’t losing anything at all?  Come on.

This entire lockout was less about money and more about getting rid of the union.

That’s wrong.  I know that’s wrong because they signed a deal that was all about money.  If it was all about destroying the union, they dump the whole season and open in 2013 with replacement players + whoever wants to show up from the ‘old NHL’.

This entire lockout was about getting the split to 50-50.  I know this is true because the NHL told us months ago they wanted 50-50 and then the deal they signed was… 50-50.

As a result, the players got 7% more than what was initially offered and lost half a season.

You may be the only person on the whole planet who thinks the initial 43% offer was anything other than a mirror to indicate where the NHL was prepared to settle.

I mean, it was such a transparently obvious ploy I’m shocked anyone didn’t recognize it immediately.  The players used to get 57 and the leagues first offer is 43… oh, dear, wherever could they be targeting for the final number?  Mayhap the one exactly in the middle of them?

Posted by phillyd from Southern New Jersey

100% accurate, top to bottom.

Your point is well taken, but that doesn’t mean they couldn’t have.

It just would have been pointless, stupid and wasteful to do so.  Possible, yes, just really dumb.

Lockouts are needlessly destructive to both labor and capital.  In this case it was about squeezing blood from a turnip.

That’s a little hyperbolic.  It’s about a group that made 1.824 B a year collectively and nudging that number down to 1.6 B.  ‘Blood’?  ‘Turnip”?

The average NHL salary is still going to be very close to 2.5 million bucks a year.

This was more like dipping some bottles of Congac from the barrel.

Posted by HockeyinHD on 01/07/13 at 05:42 AM ET

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I don’t think the lockout was the union’s fault.

If memory serves, you think it is “at least equally” the union’s fault.

Posted by Garth on 01/07/13 at 07:53 AM ET

J.J. from Kansas's avatar

It is impossible to play without a CBA.  It cannot be done.  What you are really saying is that the league could have resumed under the terms of the OLD CBA.

Again, untrue and wrong. On both counts. The difference between impossible and unlikely seems to consistently escape you. That must be it, because during this entire affair, you’ve set yourself up as fairly anti-hyperbole and that would be the only other way to define saying it’s impossible with emphasis when it’s not true.

although I don’t really care about “fault” at all.

HAHAHAHAHAHAHAHAHAA

Posted by J.J. from Kansas on 01/07/13 at 08:08 AM ET

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Again, untrue and wrong.

No, you are wrong.  The league cannot perform without a valid CBA.  It cannot be done.  What you are suggesting is that the league should have continued to play under the old CBA until a new one was devised, which is stupid and pointless for the reasons I’ve already explained.

HAHAHAHAHAHAHAHAHAA

-shrug-

That’s been a big difference in our positions throughout this situation, JJ.  I approach them from a point of rational clarity, and you tend to approach them from a position of incensed bias and partiality.

You spend so much time whining about ‘fault’ and ‘fair’ you burn up all your brain cells before you get to things like ‘reality’.

The reality was that the PA was going to lose this lockout in every measurable way from the moment it commenced.  The imbalanced emotionality of the PA as a negotiating unit made that loss much worse than it should have been, both for them as financial partners and for us as people denied a source of entertainment.

That being the case I didn’t waste much time with ‘fault’, at least as it related to the actual issue.  Both sides had the terms under which they would play, and neither side moved much off of them.

The reality was that the current negotiating landscape vastly favored the owners.  As we saw from the nature of the deal which was signed 650 million dollars in players revenue later.

Whining about ‘fault’ while blithely ignoring reality is what led so many here to so many incredibly offbase positions.

Posted by HockeyinHD on 01/07/13 at 08:28 AM ET

J.J. from Kansas's avatar

No, you are wrong.  The league cannot perform without a valid CBA.  It cannot be done.  What you are suggesting is that the league should have continued to play under the old CBA until a new one was devised, which is stupid and pointless for the reasons I’ve already explained.

Show me the law that forces collective bargaining… or the law that forces the exact terms of the old agreement in the absence of one.

You are mixing up impossible with unlikely. You are also changing what I am saying to suit an argument. I am not suggesting the league should have continued to play under the old CBA, I am saying that it is possible both sides could have played hockey with no CBA in place. Even while unnecessarily limiting the discussion, you are wrong when you say impossible.

That’s been a big difference in our positions throughout this situation, JJ.  I approach them from a point of rational clarity, and you tend to approach them from a position of incensed bias and partiality.

HAHAHAHAHAHAHAHAHAHAHAA

That being the case I didn’t waste much time with ‘fault’, at least as it related to the actual issue.

The laughs just keep coming.  Please keep this up. Hahahahaha.

Posted by J.J. from Kansas on 01/07/13 at 09:04 AM ET

redxblack's avatar

It is impossible to play without a CBA.  It cannot be done.  What you are really saying is that the league could have resumed under the terms of the OLD CBA.

This is factually incorrect. Since they had an expired CBA in effect at the end of the CBA and a new one was yet to be negotiated and finalized, it falls into the Status Quo Period for both US and Canadian Labor Laws. I do not know the Canadian law nearly as well, but in the US this is under the national labor relations act. Here’s a cutnpaste from a legal dictionary for the relevant case law:

During the time a collective bargaining agreement is in effect, the employer may not change a working condition that is a mandatory subject of bargaining, without first bargaining with the union (29 U.S.C.A. § 158[d]). Even after the collective bargaining agreement expires, the employer must maintain the status quo and may not unilaterally change mandatory subjects of bargaining, until the parties have reached an impasse (Louisiana Dock Co. v. NLRB, 909 F.2d 281 [7th Cir. 1990]). This proscription against unilateral changes continues even if the employer disputes that the union is the exclusive representative (Livingston Pipe & Tube v. NLRB, 987 F.2d 422 [7th Cir. 1993]; NLRB v. Parents & Friends of the Specialized Living Center, 879 F.2d 1442 [7th Cir. 1989]). Once good faith negotiations between the parties “exhaust the prospect of concluding agreement,” the parties have reached an impasse, and implementing unilateral changes in working conditions does not constitute an unfair labor practice (NLRB v. Plainville Ready Mix Concrete Co., 44 F.3d 1320 [6th Cir. 1995]; United Paperworkers International Union v. NLRB, 981 F.2d 861 [6th Cir. 1992]; Southwest Forest Industry v. NLRB, 841 F.2d 270 [9th Cir. 1988]).

So yes, they could have played at any time, but the league would not have had the no strike clause. That’s why the NHLPA offered to extend the contract, because functionally they could have played under the old, expired terms and conditions anyway. That’s why the league locked them out - to force givebacks. Note that the lockout has ended, but there’s still not CBA signed. Hockey will take place, even though no pen has touched paper on the new CBA. That kinda shoots the theory that it can’t be played without a CBA to pieces.

HD - you’re factually incorrect on the pursuant parts of labor law that govern expired labor contracts. This lockout was wholly on the owners who did not want to allow hockey to be played until they got all the terms they demanded. That they jerked the players around with a 43% take-it-or-leave-it offer is a given. That they continued jerking into January should be obvious.

Posted by redxblack from Akron Ohio on 01/07/13 at 10:50 AM ET

bezukov's avatar

I don’t think the lockout was the union’s fault.  I think the fact that games were missed was the Union’s “fault”

That’s a distinction without a difference.  It was managements decision to miss games or lock the players out, or whatever cute distinction you try to draw out of this.  Playing word games isn’t going to distract me or anyone else from the point; which is that the NHL is responsible for the loss of the season up to this point.  The owners have the keys to the zamboni, not the union.

Posted by bezukov from the kids are alright. on 01/07/13 at 11:06 AM ET

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The lockout was the owners’ fault. Didn’t need to happen. Not for what the league needed to “fix” their finances (or at least kick the problems 5 years down the road). Up revenue sharing to what it is now, freeze growth of salaries until it gets to 50% implement the term limits to what they are now and the players never would have been angry enough for this fight. That’s not a formula for missing tons of games.

However, that it extended so long was everyone’s fault, but Donald Fehr and the PA have a greater share of the blame. What Ron doesn’t mention is, no matter how many times the PA said they accept a 50-50 split, the first time they did accept a 50-50 split was about two weeks ago.

Posted by larry on 01/07/13 at 02:30 PM ET

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Your point is well taken, but that doesn’t mean they couldn’t have.  Lockouts are needlessly destructive to both labor and capital.  In this case it was about squeezing blood from a turnip.

Posted by bezukov from the kids are alright. on 01/06/13 at 10:10 PM ET

No, Philly’s right. Had Fehr not wanted to strike, he would have proposed a 1 year extension. What he did propose was to play without a CBA and use the financial terms of the last one. The only difference between those two is that the latter approach allows Don Fehr to strike.

Posted by larry on 01/07/13 at 02:32 PM ET

redxblack's avatar

He did. The NHLPA offered to extend the CBA by one year while negotiating. That was shot down out of hand by the league.

Posted by redxblack from Akron Ohio on 01/08/13 at 10:10 AM ET

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