I was sort of surprised by the appearance of decertification stories in the Globe and Mail and LA Times yesterday. Suddenly, it’s everywhere, the players talking about decertifying their union – Darren Dreger’s talking about it, Nick Kypreos is talking about it…everyone’s talking about it.
I am not entirely convinced that the membership of the NHLPA is particularly serious about pursuing this, as opposed to using it as a bargaining chip. James Mirtle had an interview with Ryan Miller in which Miller made some comments that I thought were telling:
After watching the other sport leagues go through labour disputes last year, it is apparent that until decertification is filed, there will not be any real movement or negotiation. Many things in our negotiation are very consistent with the NFL and NBA negotiations, and both of those leagues filed papers necessary to decertify.
…Decertification becomes part of the script because Gary Bettman and the owners are trying to get a sense of how far they can push us and at some point we have to say ‘enough.’
“They want to see if we will take a bad deal because we get desperate or if we have the strength to push back. Decertification is a push back and should show we want a negotiation and a fair deal on at least some of our terms.
One of the arguments that the NBPA faced, or would have faced in court, when their union disclaimed interest in the CBA negotiations (for more on the distinction between disclaimer and decertification and why it matters, check out this piece by Gabe Feldman at Grantland and, for people who like legal academia, this paper (PDF) by Nathaniel Grow)) is that the disclaimer of interest was a sham, something that the union was doing to gain a tactical edge in the labour negotiations. This become harder to refute where one of the union members is basically saying: “This is TOTALLY a sham for leverage” although a good lawyer would undoubtedly minimize the importance of what Miller’s saying if the issue were litigated.
The timing of all of the stories turning up everywhere is kind of suspicious too. Nobody’s really talking about it and all of a sudden everyone is talking about it? With Miller making the comments he did? The @walsha-bot and Ian Pulver singing the praises of a free market when you haven’t heard anyone talking about it before? To me, the decertification (I’m using decertification to cover both decertification and disclaimer) angle looks like something they’re using as a stick to wave at the owners to try and force them to bridge the (not particularly large) gap that remains between the parties.
One counter-argument to that. Damien Cox has, off and on, been saying something that I think makes a lot of sense: isn’t it weird that Don Fehr decided to go and run the NHLPA? He made a name for himself in baseball and presumably made something like a zillion dollars as the MLBPA head. What’s the incentive to get back into it with the NHLPA and do a deal that goes from 57/43 to 50/50? What does he get from that? Money? He’s presumably rich. Ego? How does that serve his ego? Bill Daly basically said the same thing today on Sportsnet, kind of suggesting that Fehr wasn’t motivated to make a deal.
It’s never made sense to me. One plausible explanation (and, something that I think NHL owners have been worried about, judging by some comments that have been made about Fehr not having the same skin in the game as hockey people do) is that he wants to take hockey players from playing in a cap system to one in which there’s no cap. I could see that serving his ego, being a metaphorical head for the wall worth coming back for. (Note: I’m not using “ego” in a bad sense here, only in the sense that we all have reasons for the things we do and ego, or trying to better something we’ve done before, is one of them.)
I believe free markets produce better outcomes for sports fans, so I’m in favour of blowing up the union and entering a post-collective agreement era in professional sport. I hope that Fehr wants to blow things up. On balance though, I suspect this is something that the players are trying to use as a threat and I can’t imagine that they’ll actually decertify and enter a Randian world. There are a lot of things that people are talking about as being reasons not to do it that strike me as pretty lame: the loss of agent certification, disappearance of pension plans, loss of guaranteed contracts…I suspect a lot of that’s nonsense. For one, workers pay for pension plans themselves, by making less money now than they otherwise would. If I was pulling down $2MM a year, I wouldn’t worry about a pension plan. Guaranteed contracts? Lots of guys don’t really have guaranteed contracts now. They have two way deals. There’s nothing preventing the negotiation of terms that guarantee a contract and, if the sporting experience in much of the world is any example, they’d probably become standard for pretty much any NHL regular.
No, the real reason I suspect that this won’t happen is the uncertainty. Personally, I think the uncertainty is within reasonable bounds: top tier hockey, in some shape or form, would exist next year, even if the season is lost. The Phoenix Coyotes might not. Some teams aren’t going to be able to support the payrolls they once did. There will be people who would profit immensely – I think I’ve made a reasonably good argument over the past few years that stars get screwed under the current CBA – and there would be some guys who would lose out. My suspicion is that the pool of money available to the players would grow but that the distribution would be much different. There would be big winners and big losers. Making some sort of deal with the NHL ensures that hundreds of guys continue to make ridiculous piles of money. They might make less than they want or feel is fair but life as they know it, more or less, will go on.
Here’s the thing though: I think that if they don’t, they’re just going to do this again in five years or seven years or whatever the length of time is. This is something I wrote in August of 2010:
I think that this would be a fascinating negotiation to be part of and what’s contained in Brooks’ piece doesn’t really surprise me. If Brooks is right, it looks to me like the NHL is going to try to (in part, at least) address the problems created by revenue disparity by driving down the amount paid to the players leaguewide. The NHL is, I think, so screwed up and has so many teams with so many disparate interests that this is about all they can do to try and create a system in which all of their member clubs can thrive.
The negotiation on the percentage is going to be an interesting one. It’s understandable that the NHL is going to try and drive it down. At present, they’re the only serious employer of elite hockey talent in the world and if they cut the pot of money by $135MM or so annually, it will still be paying more money than any other league in the world for hockey talent.
It will be an interesting experiment to see what happens if the NHL can push down the player’s share of revenue. Until there’s some reason not to keep doing it – reduced revenues or losing the prestige and money that comes with being the best league in the world, they’ll try to drive it down further. At some point though, there will be some response, whether because the players perceive a clearly better option or some owner or owners within the NHL do.
The thing I wonder is this: how is any of that not true in five or seven years? 50% – 45% – 40%…why would the owners stop, until there’s some reason to stop? Everyone gets a nice boost in the capital value of their team, the number of cities that could plausibly support a team increases (which makes possible some expansion and a nice lockout dividend) and everyone makes more money for five to seven years. Remember that Bettman quote from earlier in the lockout? “There seems to be this notion that the 54% escalating to 57% we agreed to seven years ago is a perpetual entitlement.” You can just file that away for any future negotiation. “There seems to be this notion that the (FILL IN BLANK) we agreed to seven years ago is a perpetual entitlement.” Sure, they won’t have guys like Mark Spector arguing that 50/50 is fair because that’s how mom used to split the candy, but he’ll just seize on something equally stupid and support the owners?
In other words, it seems to me that a decertification threat, followed by a CBA within the next couple weeks is great in terms of getting hockey back on the ice but doesn’t do anything to solve the players’ larger problems: when next time comes, they’ll be asked to take less, regardless of how the league does between now and then. Making a deal now does not solve the basic problem: hockey’s done really well for the last seven years and the owners want to pay them less and limit their rights. I think they’ll end up making a deal, because they’re reasonably close, and I can’t tell guys with short windows to make millions of dollars that they’re wrong to pass on uncertainty and grasp the golden ring, but they should be clear what they’re doing: the only way to ensure that the NHL doesn’t just do this again in five years or so is by pursuing the decertification angle and being successful in doing so. Otherwise, this will just happen again.
Maybe the players don’t care about that. I’m not sure I would if I was Shawn Horcoff, for example. Hopefully enough of them either don’t care, misjudge things or have a taste for wild uncertainty that, for once, the best interests of people who like to watch hockey get served, even if only by accident, and the North American sports labour movement starts to move beyond collective bargaining.Email Tyler Dellow at firstname.lastname@example.org