The back-and-forth dance between the NHL and the NHL Players' Association continued Tuesday night, as the league gave another offer to the union.
As has been the custom, the players took the offer after a short meeting and said they would study it overnight. They expect to meet again with the league on Wednesday.
However, NHLPA executive director Donald Fehr had little to say about the proposal or the state of the negotiations.
"We spent a half hour or so with the owners committee," Fehr said. "They did make a comprehensive response to what we gave them [Monday]. What we have to do now is go through the document, try to make some sense out of it, compare it and see what the appropriate thing is to do next.
"It's better to be meeting than not but I'm not saying anything else more about it."
NHL commissioner Gary Bettman said much the same about the owners' response to the players' proposal.
"The fact we're involved in a continuous process is something I'm glad to see but we're clearly not done yet," he said. "There were certain things the Players' Association asked for and we agreed to and there were some things we moved in their direction and some things we said no to. But that's part of the process."
But the delicate signs of progress in the NHL labour talks have a shadow hanging over them.
It is a dark cloud in the form of a "disclaimer of interest," the right granted to the NHL Players' Association's executive committee by a vote of the players to move to dissolve the union. This would clear the way for an anti-trust lawsuit against the owners and a possible end to the lockout, which will hit 109 days on Wednesday.
But it will also put both the owners and the players on the path to the great unknown, as the ramifications of walking away from the present system, with a collective agreement administered by the union and the league may not be pleasant for either side. While every player could theoretically become a free agent, able to sell his services to the highest bidder, they could be heading into chaos, given the enormous differences in wealth between the league's 10 richest teams and the other 20.
The NHLPA has until midnight Wednesday to act on the disclaimer. At this point, only one thing is clear – if the union does not notify the NHL it plans to dissolve the union by the deadline it means the negotiations that started Monday at the league's headquarters are going well.
If the notice is given it means the talks are headed off the rails, although they could continue. However, it would likely mean no staff member of the NHLPA could take part in any labour negotiations. The players could be represented by the outside counsel that was retained to file the legal work on the disclaimer.
"It's not something we're focused on," Bettman said when asked if the league is feeling any pressure over the disclaimer.
Word trickled out Tuesday from some players that Bettman and his negotiating team seemed a little more approachable in this session, although there were a couple of unexpected hiccups on the topic of pensions. Indeed, it was a rare move in the players' direction by the owners last week in a new offer that re-started the talks, which broke off in anger on Dec. 13.
Both sides concede they are close to an agreement on revenue-sharing, which will see the league's wealthier teams contribute to a $200-million (all currency U.S.) fund that will be shared by the smaller-revenue teams. It was thought they were also close on the league's offer to create a defined-benefit pension plan, a rare move by businesses these days, but some additional demands by the owners on Tuesday stalled this topic. The players know they will be giving up a lot, mostly in their share of revenue, in this collective agreement, so they are resisting the NHL's demands, at least for now, on the pension plan.
The little information that came out Tuesday was that each side felt "cautiously optimistic," a term that has been used far too often in this dispute, a deal could be reached. But this came with a caution that a lot of work remains to be done if a 48-game season can be salvaged, as shown by the pension issue.
One good sign was that both the NHL and the NHLPA shut off their leaks to the media. Neither side wanted to do anything to jeopardize the faint signs of progress.
The major issues for the players are a quick drop in the salary cap in 2013-14 when the first full season of a 50-50 revenue split kicks in, and the resulting clawbacks on their salaries through escrow. The owners want to limit the lengths of contracts to six or seven years, and not allowing a variance in salary from year to year of more than 10 per cent. They would also like a new collective agreement of at least 10 years with a mutual opt-out right after eight years.
In the offer they made last week, the owners called for a pro-rated $70-million cap for whatever length this season is, with the cap dropping to $60-million in 2013-14. Both sides have already agreed to a 50-50 share of league revenue and the $60-million cap is based on the $3.3-billion in revenue the NHL earned in 2011-12, albeit split 50-50 with the players.
The players have apparently asked for a cap of $67-million in 2013-14 and they want the owners to cap their escrow payments at no more than 10 per cent of their annual salaries.
One suggested compromise could see the owners agree to cap escrow at 10 per cent as long as the players agree to their term limits on contracts and accept a 10-year agreement. It is thought the players may accept a contract variance of 10 per cent.