Donald Fehr will lead the players' charge into the next round of CBA negotiations. (Photo by Scott J. Ferrell/Congressional Quarterly/Getty Images)
After a year on the job as executive director of the NHL Players’ Association, Donald Fehr is as calm as he ever was during his 26 years running Major League Baseball’s players union. He’ll need that calm in the months ahead, as the NHL collective bargaining agreement expires Sept. 15 and the focus will turn increasingly to the 63-year-old and his efforts to negotiate with what many believe will be an aggressive group of owners.
The Hockey News spoke to Fehr regarding issues pertinent to a possible lockout, including what appeared to be the first salvo fired, when the NHLPA and league couldn’t agree to ratify proposed realignment.
The Hockey News: In regard to realignment, many have focused on your rejection of the league’s plans, but fewer have focused on the league’s insistence of a hard deadline, which is ultimately what caused your rejection. This isn’t the first instance the league has been aggressive with the PA during the current CBA, is it?
Donald Fehr: The league went into their owners meeting, they came out with a realignment plan, and obviously it required the players’ consent. We got into the details on it, we found out the background and information and there were two significant issues from the players’ standpoint: one was assurances as to what the travel would be, and unfortunately, we weren’t able to get those assurances. The league was not in the position even to give us a drafted schedule, which makes any analysis very difficult.
The second issue was access to the playoffs, where in the proposed seven-team divisions you’d have a permanent advantage in terms of access, because you’d only have to beat three teams to qualify, whereas in the eight team divisions you’d have to beat four. The players looked at it, but we weren’t in a position to consent. Whether the deadline was aggressive or not, I don’t really know. All I can say is that we offered – and if the league wants to, we’d be willing now – to meet with them to discuss these issues and see if a resolution could be found. So far, that’s not something they’ve indicated they’re prepared to do.
THN: Has the PA looked at making a counter-proposal for realignment, something that would address the concerns you have regarding travel and competitive advantage? Or do you sit back and wait for the league to drive the bus on that issue?
DF: When it comes to bargaining, we’ll take a hard look at playoffs and schedules and all that stuff and come up with our own ideas. Whether those will be related to the specific realignment proposals we got last December has yet to be determined.
THN: Is it unusual in your experience with baseball to look at hockey now – from what I understand is a $2.4 billion business prior to the 2004-05 lockout to a more than $3 billion business today, yet the owners still are rumored to be asking for concessions from players?
DF: Let me get into the numbers a little bit. The industry in terms of hockey-related revenue was at right about $2 billion before the lockout and the first year after the lockout. We expect it to be a little over $3 billion this year. I’ve heard rumors, of course, that the owners are going to be asking for significant concessions or major concessions or enormous concessions, and whether that will prove to be true remains to be seen. I’ve been in this business long enough to be satisfied that their positions will become clear when the time comes, and we don’t need to invent imaginary horribles until we get there.
THN: Each previous CBA has been held up as a victory for the owners, a so-called “idiot-proofed” system that can save the owners from themselves. Yet by the end of every CBA, it seems we have only more proof that market conditions – including any one owner’s willingness to throw lots of money around – is what actually sets salary levels. On some level, do you philosophically agree that owners have to take more ownership of their own choices and stop off-loading them on to the backs of players with increasingly rigid salary controls?
DF: There’s a lot of assumptions built into your question, and I don’t want to indicate I’m subscribing or not subscribing to any of them. With that said, let me respond this way: in my prior life (in baseball), we were in a world in which you didn’t have caps and management as a result of that had to manage its business on a team-by-team and an overall basis. There was fairly extensive revenue sharing negotiated with the union which went a long way toward alleviating some of the problems. That worked very, very well in baseball. There’s no doubt the last decade-and-a-half or a little more, baseball is far and away the most stable of the four sports. I don’t think there’s any doubt about that. And I think there may be a lot that can be learned from that.
Everybody has responsibilities in an industry like this: if you’re on the players’ side, it’s to perform; if you’re on the management side, it’s to manage the various respects of the industry, either team-by-team or overall. And it goes without saying everybody has to do their job. But that should not suggest I’m indicating there are failures there. We don’t know that yet.
THN: When the NHL is in bad marketplaces losing upwards of tens of millions of dollars each season, that loss has to be reflected somewhere, and with the NHL it comes out of the hockey-related revenue pie and results in smaller paychecks for the players. Yet players essentially have no say in the location (or possible relocation) of teams. Is this something that players are interested in talking about in the next CBA – more of a voice in the business end and a true partnership with the owners?
DF: A so-called true partnership, if that connotes joint managerial control, joint ownership and all of those things, is a pretty tall order and so far as I know has not been adopted in any professional sport. If you take a step back from that and talk about whether you could develop vehicles in which you discuss a wide range of issues both in the abstract to the extent you can predict them, and then when they arise, in an effort to reach agreements, rather than having one side or the other make a decision, is that a good thing to do? I think it’s a good thing to try, yes.
I don’t mean to suggest that would necessarily be the case in every situation or that it would necessarily be successful when tried, but if you can get agreements and buy-in and consensus, I think it sets a good ground to move forward as other situations arise.
THN: All four major sports leagues are managed in labor negotiations by a single firm, Proskauer Rose. Is that correct?
DF: No. I would say that firm has acted as outside counsel at various times for the leagues. But they’re the lawyers, and decisions are made by clients, not by lawyers.
THN: Okay. I ask that because you see where the other sports have been trending toward the deals recently struck by the NFL and NBA, where revenue is split 50/50 by and large, and most other elements are ancillary to the deal being signed than that one main issue. Is that something you pay mind to specifically in terms of “the writing on the wall”, for lack of a better term, in the overall sports picture, do you think hockey is inherently different in the way the financial pie is split up?
DF: Let me give you a number of different responses to that. First of all, there’s a danger in extrapolating from too few data points. In this case, you have three: you have the concessionary bargaining that took place in the NFL and NBA that was accompanied by lockouts and a lot of conflict in both cases, and then you have the successful bargaining in major league baseball, where there was no cap, and no threat of a cap, no strike and no lockout, and no threat of a strike or lockout. So you can extrapolate whatever you want from three data points, but most statisticians will tell you that’s a dangerous thing to do, because you haven’t got enough.
The second thing is, I’ve always believed, and my experience since I’ve gotten to the NHLPA confirms, that the four sports are different. The ownership is different, the nature of the industry is different, the economics of the sports are different, and I think all the (labor) agreements are self-contained. And you should approach bargaining in that fashion. So that’s the way we’re going to do it, and it remains to be seen what positions various people are going to come in with. But I’m not going to pre-judge that.
THN: Another issue that is certain to get public attention is the issue of player safety and the level of its importance to the PA. How would you characterize that at this stage? Obviously, finances will likely be the driving issue, but how do you see the safety issue playing out.
DF: I don’t think there’s a single driving or most important issue. There may be a range of issues that have importance, and how those play out in the bargaining process in terms of what gets the most attention remains to be seen. That said, obviously, player safety issues are of really paramount importance to the players, whether it’s concussions, whether it’s other kinds of injuries we’ve seen, whether it’s the aspects of safety issues that result in disciplinary proceedings, whether it’s equipment, boards of glass, or whether it is rules.
My standpoint, from what I’ve gleaned in talking to players, obviously they’d like to make the game as safe as possible, but they still want it to be a hockey game. If you’re gathering from my comment those two may be a little bit in conflict with one another, I think that’s right. I don’t know anybody who wants to take the physical contact out of the game, and as long as you have it, especially as players get bigger, get stronger and move faster, you can’t avoid injuries altogether.
That said, I would expect the players will continue the internal discussions they’ve been having with each other and to an extent with union staff, about what can be done to take some of the risks out of the game or to minimize them, and I’d expect that to be discussed in bargaining. My hope is, and I think my expectation is, too, that when we get to the point of discussing that with the representatives of the NHL, there’s a common purpose in mind. Hopefully we’ll be able to do some good things.
THN: Equipment has continued to be an issue in regard to player safety, yet we haven’t seen a huge amount of change in some of the hard-shell shoulder and elbow pads. Is that something the league and PA have to push manufacturers harder on to respond more quickly? Or is that out of your hands and left to the business decisions made by equipment companies?
DF: No, I don’t think it’s out of our hands. Certainly, if they act together, the NHL and NHLPA can control the kinds of equipment that will be required, permitted or prohibited. You can’t say ‘do something completely different and have it here by 6 o’clock tomorrow night’ because that would be impossible. But if you factor in enough lead time and development time, I don’t think those are issues.
Player safety is a major issue. It’s a major issue for players for all the obvious reasons, it’s a major issue for owners, because I don’t think owners want players hurt any more than players want to be hurt. Hopefully we’ll figure out a way to make some meaningful strides in this regard.
THN: To follow up – do you as the executive director have to make the case to players and show them the financial correlation on some of these issues?
DF: The answer is it depends on what issue and what player. There are a whole lot of players, especially guys who’ve been around for a while, for whom the relevant considerations are obvious; they’ve lived with them day in and day out for years. There are others who, for one set of reasons or another, haven’t had that experience, or perhaps very young players haven’t had it. It varies by player and by issue.
Having said that, there’s nothing about this stuff that in any fashion is beyond that which you’d expect players to pick up on very readily and easily. Part of my job, and part of the union staff’s job, is to make sure they understand the issues and the relevant considerations. Because players in the end have to make decisions as to what positions they want to take, what agreements they want to make, what kinds of things they don’t want to do. Obviously, making those judgments on an informed basis is what you want.
THN: When you stepped into this role, was a priority for you to shake up a constituency used to having their business affairs taken care of for them and getting them to speak their minds to you? Was there a feeling out process where you had to encourage that voice, and maybe poke them with a stick to let them know you’re there to represent them?
DF: Not really. What there was, I think, was the necessity for me to spend some time introducing myself to players, making sure they understand my background and the limitations of my background. I’ll tell you what I mean by that. In terms of how I view what a union is, it is not something that’s distinct from the players. It is the players. And then there’s union staff. That’s what I am. The union is the players.
Sometimes, especially with a group of players who haven’t been through bargaining before – which is about half the players in the NHL now – you do need to take some time explaining to them how bargaining works, what their role is, the fact that not only are they welcome at negotiating meetings, that they should come to negotiating meetings, that there’s nothing that’s off-limits from them, and so on. But you get an awful lot of help from veteran players in that regard. My job is to make sure players make informed decisions and that there is a very solid consensus on what we should be doing.
THN: In regard to the supplemental discipline process, some have observed that punishments can’t really have the desired effect when a player’s union fights as much for the aggressor or alleged aggressor in any incident as the target of that aggression. Do you sense the players want fines and suspensions in the next CBA to have more teeth in that regard?
DF: You pose some interesting questions. Whenever you have somebody in the States and in Canada, and in any societal and quasi-judicial system which is modeled on the Anglo-American system, you have this notion that before you can be penalized, you have the right to have a hearing, there has to be evidence, somebody has to prove you did something and that the penalty meets the offense in some fashion or another. And that’s true even if everybody in the world thinks you’re guilty. The process matters. And the process in this case is something I think the players may well – we don’t know for sure yet – but may well want to pay serious attention to. And in that regard, everybody’s got a right to be defended, and that’s what the union’s obligation is.
You have to look at it in that regard. You’re defending the process, you’re not defending, per se, the individual or the specific set of circumstances. And I think virtually all players agree, that before somebody is told ‘you can’t play for a long time, and we’re going to take tens or hundreds of thousands of dollars away from you,’ that there ought to be a process in place that everybody thinks is fair – fair meaning, if it happened to me, I would be satisfied with the process. Not ‘I think it’s fair what happened to you’.
THN: What about repeat offenders? In my experience talking to players, they give me the sense the game is fast and things happen at a high rate of speed and you’re not going to rid the game of incidental collisions or borderline hits, but they don’t like repeat offenders – and I think of Daniel Carcillo, who recently had his 10th run-in with an NHL disciplinarian, and yet still wasn’t suspended even 10 percent of the season.
Contrast that with your old sport of baseball, where punishments for steroid abuse can run more than 100 games. Don’t league punishments have to carry more weight to be effective, especially for those repeat offenders who seem to be the biggest focal point of player frustration?
DF: All of those things and a lot of other considerations are what we talk about in the office and with players, and when we get to the point of discussing them with the NHL, it may be appropriate to have some conversations publicly about that. I’m not prepared to do that now.
THN: I’m certainly more skeptical regarding the NHL’s claims than I was in 2004. In terms of the public relations war, is that important to you on some level? It seems like it’s almost unwinnable, given the frustrations fans have and how easy a target players can be.
DF: You always want the media and fans to understand the issues. And in everybody’s idea of a perfect world, you want everybody to agree with you. I’m no different than you are or Gary Bettman is in that regard. And you do what you can to explain the issues, but if you or one of your readers came to me as a lawyer and said ‘I have this problem and I want you to represent me,’ and I said, ‘Great, let’s put out some very incomplete, sketchy notion of what this dispute is about, and then we’ll go take some opinion polls, and then I’ll do whatever the opinion polls tell me to do,’ you’d quickly find another lawyer.
To a large extent, that’s true here. You have to make decisions based on the facts, you have to make decisions based on what the players want to do. And you have to make decisions based on what the players want to do when they’ve made informed decisions. To the extent those decisions can be explained and understood, that’s great and wonderful, and you should try and keep at it. But that doesn’t mean you make a judgment based on what you think the public view is.
THN: I’m interested in sport as a microcosm of society as a whole, and I look at the overall labor movement worldwide as having been on the wane since I was a kid in the 70s. And yet through Occupy Wall Street or other groups, you see the social movements are starting to have a little more teeth to them. Do you think people are more cognizant in general of labor movements and maybe with particular mind to the sports labor movement, how have you seen the attitude toward unions play out?
DF: In North America, essentially what we saw was that in 1981, President Reagan broke the U.S. air traffic controllers in their strike, and that summer, there was another strike – the 50-day baseball strike. I was Marvin Miller’s general counsel at the time. That was sort of the signal that it was okay to go beat up on organized labor, and that began this long trend, which continues in large part today, of essentially saying, ‘I’m having trouble competing, so let’s move to Alabama or Mexico or Taiwan or Bangladesh, whichever’s cheaper at the moment to do this, and we’re going to blame organized labor for what our problems are.
You can’t really blame the workers, because you don’t want to look at them, so you say the union is something different than what the employees are. Which is not right. So you’ve seen that. I would like to believe that trend is beginning to change, that people are beginning to realize there was a reason unions were there, that there was a reason people joined them, that they served a great leveling force and that they were, far more often than not, something that served the public good. Whether that will turn out to be the case is not something I’m willing to hazard a guess on. I hope it will.
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