NHLPA sets another vote for right to file disclaimer of interest as talks stall

NEW YORK — The Globe and Mail

Donald Fehr is seen in this file photo. (Reuters)

A sudden change in tone by the NHL is cited as the reason why the players engaged in a second vote on Thursday to dissolve the National Hockey League Players’ Association.

This wiped out the growing signs of optimism around the labour talks, as there were some smaller committee meetings Thursday evening but no full bargaining session. However, the NHL announced negotiations will resume Friday morning under the eye of a U.S. federal mediator, who was brought in this week.

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Hanging over it all was another player vote to give the NHL Players’ Association’s executive committee the right to file a disclaimer of notice with the NHL and move to dissolve the union. The vote began at 6 p.m. Thursday and was expected to take 48 hours.

In the meantime, despite a few predictions from player agents that a new collective agreement was in sight, an air of gloom settled over the NHL headquarters. There was word from some player sources that once NHLPA executive director Donald Fehr decided not to exercise the disclaimer of interest by midnight Wednesday during negotiations with the NHL (he was given the sole authority to do so by the executive committee), the league’s attitude changed.

No longer faced with the threat of a union dissolution followed by an anti-trust lawsuit against the owners by the players, NHL commissioner Gary Bettman and his negotiators were said to have become more rigid. They dug in on the key issues of a salary cap in a new collective agreement’s second year, player pensions, compensation variance on contracts and the length of the agreement.

This would explain Fehr’s subdued demeanour when the lengthy session that began Wednesday night ended in the early hours of Thursday morning. Like Bettman, he said there was progress in some areas and none in others but he did not appear to be a happy man.

The league presented the union a package on hockey-related revenue (HRR) on Thursday morning that the players felt was missing language about penalties for teams that hid revenue. The penalties were restored after the meeting but in a negotiation in which trust between the sides is a major problem, it was a setback to hopes for an agreement in the next couple of days.

By the end of the day, the only meetings of substance were with the pension committees on each side and it appeared there was no progress there, either.

Add it up and it was no wonder the union moved quickly to hold a player vote to put the disclaimer-of-interest hammer back in Fehr’s hands. Given the change in the league’s attitude when it was no longer there, it was clear what the owners think of the possibility of facing an anti-trust suit.

The union also filed a motion in U.S. District Court in New York, asking it to dismiss the NHL’s class-action lawsuit concerning their disclaimer of interest. The league is asking the court to declare the lockout legal as a pre-emptive strike against the union’s disclaimer strategy.

In their motion, the union’s lawyers argued the league cannot ask for a ruling on events that have not taken place and they are trying to force the players to stay in a union, which is against their rights under the National Labor Relations Act.

The motion said the NHL “fails to meet its burden of establishing an ‘actual controversy’ of ‘sufficient immediacy and reality’,” and the complaint should be dismissed.

The owners did make a significant concession to a request by the players but it has not been enough to spark any momentum in the negotiations for a new collective agreement.

They are now willing to allow two compliance buyouts per team instead of one. This would allow a team to buy out a big player contract without it counting against the salary cap. But it will still count against the players’ share of the revenue.

Apparently, the players were willing to take the bite out of their revenue share in the belief it would allow teams more flexibility in player moves. This would potentially create more opportunities for free agents.

The players did come a little closer to the owners on the matter of the salary cap but a significant gap remains. The owners still want a $60-million (all currency U.S.) salary cap in 2013-14 with a $44-million floor.

The issue of the floor is prominent again because many owners do not want to see it go above $44-million. The players want the 2013-14 cap to be $65-million, which would create a little more money for free agents. They have also offered to keep the floor at $44-million.

But Bettman wants to maintain a salary range of $16-million from the floor to the cap because of the fear a wider gap would allow rich teams to load up their rosters and affect competitive balance.

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