Dithering NHL, union need to deal

The NHL and NHLPA have danced their little dance. The music is about to stop and everyone will either go home happy or shuffle out to the parking lot to begin a fight no one can win.

It's time to shake hands and agree they are better off together than apart. The breakup, if it becomes a firm reality rather than just a scary possibility, will rob both the current players and the league of money and so much more.

The end game isn't unthinkable but certainly unpredictable. Maybe one side will come out the other end in OK shape. Maybe the other side does. Or maybe they both end up unrecognizable from their current positions of strength.

Millionaire players could lose guaranteed contracts amounting to generational fortunes. Billionaire owners could watch their franchise values plummet and see their player assets disappear.

So much of the picture surrounding the NHL work stoppage gets fuzzier by the day, but there is one element gaining clarity.

They're either going to play or they won't and we will know one way or another soon.

If the NHL is to play a 48-game season, the briefest commissioner Gary Bettman is willing to allow, they must start in or around Jan. 20. Back up seven days for a training camp plus three or four days more to get players to their teams and a collective bargaining agreement would have to be in place by Jan. 10.

If talks aren't moving rapidly in the right direction by Jan. 7 or so, this season is finished.

NHLPA executive director Don Fehr and Bettman continue to keep their respective sides in check. But at some point, likely in the days just after Christmas, they will have to provide a status report that simply says: Either we deal now or we don't play.

The fork in the road provides one simple path and another that is unpredictable yet undeniably difficult.

First, the simple path. The NHL and NHLPA come to terms on a CBA and there is labour peace for the next eight to 10 years.

Seems like a good choice.

Now, the treacherous one. The union is in the midst of voting to give its executive the ability to file a disclaimer of interest. The vote, which requires a two-thirds majority, will certainly pass and, once it does, the NHLPA will have two weeks to file the disclaimer.

At that point, the union will in essence be dissolved -- allowing the players to retain counsel and sue the NHL under antitrust law, seeking an injunction to end the lockout and force the owners to put them back to work.

Their argument? Under U.S. federal law, league restrictions such as the entry draft, limits on player movement and the salary cap are anti-competitive and illegal once they are conducted outside the context of collective bargaining.

In other words, a disclaimer by the NHLPA could create chaos for the NHL.

Players could enter the league as free agents and become free agents the moment their contracts expire.

Declaration

The NHL, however, made a legal move of its own and filed a class-action suit against the players, seeking a declaration that the lockout is legal -- or in the alternative, a declaration that all existing NHL contracts are void and unenforceable.

Players could be free to sign wherever they liked but the guaranteed contracts of $50 million to $100 million some have secured would go out the window.

Maybe they would be replaced by similar big-ticket deals. Perhaps not. Don Fehr cannot, with any degree of certainty, tell his players what is beyond the horizon.

Once the union is disbanded, there is nothing to stop the NHL from scheduling a season for 2013-14 and unilaterally implementing a system it believes could be defended in court. Then, anyone who wants to play could come and play.

Lawsuits could move forward while the action on the ice continued as if in a parallel universe. The NFL operated in such a fashion from 1987 until 1992 before the owners and union reached a settlement.

There is great uncertainty for both sides if they continue down this legal slope. Both have much to lose.

The players have put themselves in a strong position over the last couple of decades and could now be risking it all.

The NHL, prior to this stoppage, was a league on the rise in many areas. Tweaks were needed to make all franchises healthy but burning the structure to the ground and then rebuilding wasn't anyone's preferred course of action. It still isn't.

Both sides have much to gain by reaching a deal in the coming weeks and that's why they will.

If they don't, they deserve each other and all the headaches that come their way.

Make the deal already.

gary.lawless@freepress.mb.ca Twitter: @garylawless

Gary Lawless, Winnipeg Free Press

Republished from the Winnipeg Free Press print edition December 19, 2012 C3