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NHLPA executive director Donald Fehr reacts to a journalist' question at a news conference following collective bargaining talks in Toronto on Oct. 18, 2012. (Chris Young/THE CANADIAN PRESS)
NHLPA executive director Donald Fehr reacts to a journalist' question at a news conference following collective bargaining talks in Toronto on Oct. 18, 2012. (Chris Young/THE CANADIAN PRESS)

Eric Duhatschek

Fehr must decide if Bettman’s drop-dead date is a bluff Add to ...

As optimism rises for a resolution to the 105-day NHL lockout, the matter of what happens next essentially lies in the hands of players’ association executive Donald Fehr. Ultimately, Fehr needs to determine if the NHL’s latest proposal represents the final chance to settle a new collective agreement and play a shortened 2013 season, or if NHL commissioner Gary Bettman will continue to play a negotiating game.

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Saturday is the day to lay the groundwork for meetings expected in New York on Sunday, which are when formal negotiations will most likely restart.

Amid the small concessions made by the NHL on contract terms, variance and compliance buyouts came a rather large warning too – that the deadline for saving the 2012-13 NHL season was fast approaching; that Bettman didn’t want to play any later than Jan. 19; and thus an agreement needed to be in place by the end of the first week of January, or time will have run out.

But is that really so?

Thus far, the greatest casualty in the lockout has been the truth.

How many times has the NHL tabled an offer in these negotiations and characterized it as the best they can do?

How many times have the players countered with what they’ve publicly described as the most that they’re prepared to concede?

It’s happened over and over again, to the point where they’ve cried wolf just one time too many to take anything either side says at this late stage of the proceedings at face value – either in their public statements or in their privately “sourced” assertions.

Accordingly, the most critical decision for Fehr will be to assess whether Bettman’s time line is real – and advise his membership accordingly that the time for real negotiations is at hand. Alternatively, if Fehr concludes that the NHL is creating an artificial deadline here, he may well advise them to wait even longer, and see how far the league will legitimately go to get some sort of schedule played this year.

The problem is that both Bettman and Fehr are seasoned bargainers and thus understand full well that in any labour negotiation, neither side shows their best hand until they are fully backed up against the wall. You’d think this would be it, but maybe it won’t be.

When neither side can be believed, you’d have to say the best predictor of future behaviour is what happened in the past. During the 2004-05 lockout, it was widely believed that the drop-dead date would fall roughly in the middle of January as well, because that’s where it fell in 1994-95, during the lockout before that.

In actual fact, it fell a full month later – Feb. 16, at which point they were variously talking about a 40-game season, with a playoff that would spill well into July, or a 28-game season, which would be a playoff in advance of an actual playoff (since 28 games is the maximum any team that goes to the Stanley Cup final can play). So there would have been a weird symmetry to that half-hearted attempt to legitimize a fractional season.

Clearly though the notion of what constituted meaningful play was malleable back then, and the only real consensus was that it would be better to play some games than none at all.

The only good news in the current stalemate is that solutions for some of the more contentious issues seem to be comically simple to find.

In its latest proposal, the NHL stood firm on its demands for a 10-year CBA term, with a chance to re-open after eight years. That effectively makes it an eight-year deal to anyone who isn’t being deliberately disingenuous. If the league gives ground for one more year – and goes to nine and seven – that will essentially bring the term to where it was in the last agreement, seven years.

On the matter of the salary cap reduction:

Right now, the NHL is prepared to play out the 2013-14 season at the level it was set last summer – $70.2-million – but then wants it rolled back to $60-million for 2014-15, at which point the two sides will divide overall revenue at 50-50. It may sound draconian on the surface, until one realizes that the NHL has only ever played one season with a salary cap above $60-million anyway – and that was last year, when it was set at $64.3-million.

The year before that, the sixth of seven years under which the NHL played in the current salary-cap era, it was set at $59.4-million. So the rollback doesn’t require the players to go that far back into the past, and it is certainly a far smaller concession than the 24 per cent across-the-board salary rollback they were subject to in the 2004-05 settlement.

As for “the hill we will die on” – how deputy commissioner Bill Daly characterized contract term and year-to-year contract variance – the NHL moved slightly off its demands for a five-year maximum contract term for free agents with a seven-year maximum term for players re-signing with their own teams. Instead, the NHL offered to go a six-year term for free agents and left the door open to go to eight years for players re-signing with their own teams.

Altogether, there are 22 players signed to contracts of eight years or longer in the current CBA. Of those players, 12 signed to stay with their own teams; nine moved as free agents, and one – Shea Weber – signed an offer sheet with the Philadelphia Flyers that was matched by his current club, the Nashville Predators, and thus remains with them.

Effectively, term lengths for eight years or beyond is a negotiating point that affects about 2 per cent of the NHLPA membership. Usually, they are the core pieces of any team’s puzzle and often, they choose to go down the same path as Sidney Crosby or Alex Ovechkin did and re-sign with their own teams.

Since the five-year entry level system will stay the same under the next CBA, an eight-year term limit would permit a player such as the Tampa Bay Lightning’s Steven Stamkos to sign two eight-year deals with his team, if he wants to stay for what would then be a 21-year career. In that example, Stamkos would get the security that a longer term permits, plus the significant remuneration that it implies.

It is hard to imagine the handful of star players who would legitimately qualify for these types of contracts would turn this into a hill they would themselves die on – and prevent a CBA from getting done.

Still, a word of warning:

Even if there are some logical compromises available to resolve the dispute, history shows us that with Bettman at the controls for the third lockout of his tenure as NHL commissioner, it could legitimately fall either way.

One time, back in 1994-95, they salvaged a deal and played a shortened season. The other time, 2004-05, they failed to bridge what didn’t seem like an insurmountable gap either and lost an entire season.

It’s difficult to know how much poker Fehr plays in his spare time, but the membership seems to trust him and will be asking for his advice during Saturday’s variously scheduled conference calls, which would then be the prelude to face-to-face meetings with the league’s negotiating committee, beginning Sunday.

Right now, Fehr is at the table, his brow is furrowed, and he needs to make the call. Presumably, he will be suspicious because he is always suspicious. Is Bettman really all in? If he is and if Fehr misreads the call, then it could spell the end of the season. It is a tough decision and it is why the next round of talks in this absurdly long melodrama still have the ability to fall right off the NHL’s version of the fiscal cliff.

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