The NHL has had three major work stoppages since 1994. On each occasion, the league’s owners, led by commissioner Gary Bettman, locked out the players. And every time, the NHL Players’ Association and the NHL failed to reach an agreement after lengthy, heated negotiations. The current CBA will expire in 2022. Both the NHLPA and the owners could choose to opt out of the existing agreement this September, effectively ending the deal in 2020. What are the chances we’ll see another lockout? Pretty good based on recent history. Is there anything that can be done to stop it? Mandatory Binding Arbitration is one option.
The first lockout began on Oct. 1, 1994, on the eve of the regular season. The owners wanted a salary cap and a formal collective bargaining agreement. The lockout lasted 104 days, reducing the season to a 48-game schedule. The two sides, without the help of a mediator, finally agreed on a CBA, but there was no agreement on a salary cap. The heated negotiations and three-month lockout created an adversarial relationship between the players and owners that still exists today.
In 2003, the NHLPA and the owners started to negotiate a new CBA in advance of the expiring agreement. After 11 months of unproductive negotiations, the owners once again locked out the players on Sept. 16, 2004. Negotiations continued for five months with the help of federal mediators. The NHLPA resisted the implementation of a salary cap, resulting in a cancelled season. The two parties finally reached an agreement, including a salary cap, in July 2005, with an estimated cost of the lockout to the league and players placed at $3 billion.
The most recent work stoppage occurred when the owners locked out the players at the start of 2012-13. The most contentious issue was the percentage share of hockey-related revenues that the players and owners would receive. The negotiations involved a mediator with an agreement reached in January 2013 and the season reduced to 48 games. The result was the cancellation of 625 games and a cost to the league estimated at $1 billion.
Bettman, Fehr and the CBA
The NHL and NHLPA continue to support a CBA to negotiate their terms of conducting business. This arrangement assumes the parties can effectively reach an agreement, with both sides benefitting from the conditions of the contract. There is no formal dispute resolution in place to resolve conflicts when talks reach a stalemate, leaving the risk of a lockout or strike.
Some pundits believe these work stoppages are the result of the inability of Bettman and NHLPA executive director Don Fehr to work together effectively. According to Jonathon Gatehouse, author of The Instigator: How Gary Bettman Remade the League and Changed the Game Forever: “These are two guys who have made careers about being dispassionate about other people’s passions.”
The players don’t trust Bettman because of the league’s history of locking them out when an agreement isn’t in place before the start of a new season. Meanwhile, the owners don’t like Fehr.
Mandatory Binding Arbitration
Perhaps, then, it’s time for the CBA process to add a Mandatory Binding Arbitration clause to the contract.
The MBA process is intended to eliminate the negative effect of egos and antagonistic relationships on productive negotiations. It’s designed to give the parties a chance to reach an agreement that is acceptable to all stakeholders within a specific time frame. If that doesn’t occur, an arbiter will intervene and impose a binding agreement that is deemed fair to all parties. In the case of the NHL, the MBA decision would be made in the off-season in order to eliminate work stoppages and minimize financial losses.
Would Bettman and Fehr accept an MBA clause in the next CBA? It would require them to relinquish control over the negotiation process. They would need to recognize that this mechanism is a viable solution to future stalemates and that potential financial losses would be averted.
Braden Shaw, an attorney with a background in sports law, believes MBA is the answer. In his article, The Solution to NHL Collective Bargaining Disputes: Mandatory Binding Arbitration, he argues: “The alternatives of not reaching an agreement are unacceptable: financial loss, the potential of deterring loyal fans from supporting the league, loss of valued stakeholders such as sponsors and advertisers, compromised broadcast agreements and loss of arena jobs and league employment positions.”