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2012 NHL Lockout: The Disarmament CBA

If fans continue to get fed up with PR tactics on both sides of the CBA war, both sides may end up having to disarm to save the sport.

Cameron Spencer

The NHL's latest CBA proposal, released almost immediately after news that they had hired a political strategist to help them with their image among the fans was a brilliant proposal for PR and little more than a starting point for actual negotiations. While the NHL may have turned the tide in the battle, both sides are slipping farther towards losing the war for fan interest. While it may be comforting to be able to point the finger at the other side as to why you're both now poorer for continuing to fight longer than you should have, it's not quite as comfortable as having those fans' support (and, let's face it, their money).

One of the questions brought up is why don't both sides just agree to binding arbitration? The deal could get done relatively quickly and could solve some of the bitterness of the fight. The problem is that binding arbitration is a tactic aimed at creating a fair deal and neither side is particularly interested in what's fair over what's most-beneficial to themselves. The fact of the matter is that a lockout is the ultimate leverage held by the league and that, while the players have cried for the league to allow the season to be played during negotiations, the fact that the NHLPA has yet to promise that they won't go on strike at a strategic moment without a CBA is all one needs to know about the true intentions of that very public cry.

We've heard the lockout being called a "nuclear option" before, and it's basically true. The owners can't cancel the season without a lockout and they can't go through a lockout first before trying to exert even more pressure on the NHLPA with the use of replacement players. A players' strike carries the exact same weight as far as being the most-powerful negotiating pressure-tactic that the NHLPA has at their disposal.

Meanwhile, the fans just want to see hockey.

Sure, a lot of us (in dwindling numbers) are biding our time and keeping track of these negotiations, analyzing them as we would the scoresheets which should be coming in daily by now. But by-and-large, we care about a system that produces hockey and creates the best-possible balance of all the factors which make up the spirit of the game. We would certainly not rather be watching and analyzing the public soap opera that's playing out which is preventing us from seeing hockey.

If both sides could take away any lesson from this week's PR fighting, it's as Luntz Global Group likes to say "It's not what you say, it's what they hear." My proposal?

A 30-year CBA

The CBA has exactly two purposes:

  1. Insulate the NHL from antitrust lawsuits by having the workforce sign off on an agreement that lets individual entities work in unison to protect their league from some of the inefficiencies and inequities of the free market.
  2. Prevent both sides from using strikes and lockouts as bargaining tools

That's it. Technically, it's really only the first purpose as the second one has to be specifically written into a CBA, but that's basically what it's for. The old CBA included specific wording which prevented lockouts and strikes (both leaguewide and individually), and there's no reason to believe a new one wouldn't.

Just about anything else can be collectively bargained into a CBA, including methods of changing it (again, the old CBA was changed recently as part of the "Kovalchuk Rule", those changes and the methods by which they came about were dictated by the CBA itself.)

If the sides have a firm grasp on how beneficial long-term labor peace (if only in appearance) can be to their league, they could craft a 30-year CBA that simply has built-in methods to change it. Amendments to the CBA give it all the flexibility it needs to adapt to all of the changes that will happen in hockey for the next three decades. Players and owners can be at each other's throats from day one of a new 30-year CBA and every summer from there, but the presence of a lockout/strike-preventing provision in their agreement would prevent them from holding the sport and its fans hostage to warrant capitulation.

What's better is that, by putting arbitration requirements onto conflict resolutions, when either side says they're trying to implement a change "for the good of the game", they kind of actually have to mean it, because that's what the arbitrator is for.

Here's how I'd do it:

  • Minimum 4-year term where any arbitration has to be mutually-agreed upon by both parties.
  • After that, every other second year is an open arbitration session in August. Either side can bring up a topic for arbitration. The side not electing arbitration must be notified of the intent and the outline of what will be decided no later than February 15th of that year.
  • Arbitration rules and arbitrator selections follow the same structure as under the last CBA.

Essentially, the NHL and the NHLPA can have their little wars in private and settled by a private judge every two years if they just love fighting.

To realism

In all honesty, after saying all of this, I don't think there's a chance in hell that either side agrees to a 30-year CBA where their fights have to be kept in private and their right to hold the sport hostage would actually have to be awarded back to them in an arbitration case. Like I said above, if this fight were about what's actually fair, they'd have already gotten an arbitrator in here and would have hammered out their differences in time for the season to have started on the 11th. A proposal like this eliminates the biggest teeth from the mouth of either side for getting their way. I just don't see a reason they would do it.

Of course, the more fans are scared off by those teeth being bared so often, the more motivation there may be to maybe agree to cap them and at least put on a cuddly face for the public.