Donald Fehr: The players’ defender

Thanks to CBS Sports

As a public service to those fans simply not interested in hunting down stories about the lockout across the continent on the weekend, Flyers Faithful is pleased to reprint portions of a Friday piece from the Globe and Mail, profiling NHLPA Executive Director Donald Fehr.

The NHL had just announced that it was cancelling 82 regular-season games due to the owners’ lockout of players when NHLPA chief Donald Fehr sat down for a Q and A with columnist Jeff Blair.

Among his thoughts? There is some merit to the concept of a soft salary cap and luxury tax — and just because the players did not ask for the current salary cap to be done away with in their initial proposal, which came as something of a surprise based on Fehr’s history with the only major sport without a salary cap (Major League Baseball), there might come a time when they put it on the table.

And if you want to know why Fehr has stressed the need for discipline on the part of the players during the lockout — something even his harshest critics within Gary Bettman’s office admit he has done well — you need to go back 30 years to another labour battle and a school baseball field in southern California.

Q: Does the court of public opinion matter for you and the NHLPA?

A: Obviously the public matters. Those are the fans, the people who ultimately buy the tickets and watch the game on TV and you want to try and explain everything you can. You want to see if the fans can understand your position, that the public perception of the particular dispute is as close to what we think the facts and the circumstances are.

If you’re asking me about public opinion in the sense of taking a poll of people who are not familiar with the comprehensive nature of negotiations and all the rest of it, and then negotiating on the basis of what the results of that poll happen to be? The answer is no, any more than you would if I was representing a reader in a lawsuit and I said: ‘I have no idea what your legal position is, let’s take a poll and see what they say.’

Q: How important is it that when this is all said and done, the reputation of individual players hasn’t been damaged?

A: It’s essential that the players be involved and be involved intimately and knowledgeably, that they participate collectively and make the decisions that need to be made. When you get into negotiations which involve dispute, there are going to be times when the conversation is more heated than you might like it and tempers might flare. I would be very surprised if anybody on the other side took off after individual players or tried to make them look bad and if they did I think the only effect that would have would be to enhance that player’s stature in the eyes of other players enormously.

Q: Why is the concept of revenue sharing so important to the players?

A: Three reasons. First, unless you have an enormous portion of your revenues centrally generated – like the NFL – you are a local revenue sport, and you have the likelihood, if not the virtual certainty, that you will have a disparity in revenues. In hockey, you have a wider disparity than in any other sport as far as I can tell.

What that means is that the problems the owners complain of tend to be focused on the teams that have the lower revenue. So, the question is: Are the higher revenue teams going to be willing to help out, in whole or meaningful part, the weaker teams? You have to remember that if you get to be a team in the NHL, you didn’t just decide to set up shop and join the league. Somebody had to agree that you could have a franchise, they had to agree on the purchase price, where you’re going to be, what the circumstances are … what your capital requirements would be and what your lending limits will be. They all have responsibility for one another.

The second point is, from a bargaining standpoint, when things don’t go well, where does the responsibility lie and where should those teams look for help? We think the other teams ought to be in the business of doing that.

Third, one of the things that makes negotiations tremendously difficult is for somebody to say in effect: ‘We have teams that aren’t doing so well, so let’s lower salaries on the teams that aren’t doing so well so we will be comfortable with it. Forget whether any management failure had a part in it. But we’re also going to lower the salaries on the teams that are making very large profits by the same amount.’

That sort of means we’re going to pay the players based on the worst performing, least efficient, most undercapitalized teams. That’s not the way markets are supposed to work. Prices are supposed to be set by the other end of the scale.

Q: Canadian teams are doing well now, and one of the things you hear up here is, ‘Why don’t they just fold teams like Phoenix?’ Why is it important to the players that those teams survive? What if rosters of the remaining teams were expanded to prevent job loss?

A: My understanding is that the NHL went to the so-called southern strategy in an attempt to develop a national footprint in the U.S. for the purposes of a much larger national TV contract. There are a lot of people who think that strategy failed. From the players’ standpoint, we want a healthy league with as many teams as we can have and that raises two questions: If a team in city A could be doing much better in city B, and the fact that it’s still in city A is causing us labour problems, why don’t we move it? Atlanta moving to Winnipeg and getting rid of those problems is an example of that. The second question in bargaining is: If a team is kept in a city in which it is not doing very well, and there is another place it could be relocated and do better and make labour relations and everything else easier, and the decision is to leave it in the first city, whose responsibility is that and who ought to bear the cost for it? Those questions from our standpoint have self-evident answers.

Q: Why shouldn’t the owners get a bigger share of revenue? They are the ones who take the risks. Why shouldn’t they be entitled to a bigger share?

A: First of all, when you get into entitled, you’re getting into a very strange concept in a capitalist economy. A player is entitled to a job, but if he can’t play, he doesn’t have the job. Not only that, if he plays this year as well as he did last year, but you find somebody else better, he won’t have the job. Second, were this an industry in which the owners were prepared to say: ‘We will have a free market, and let the owners do whatever they want with salaries on an individual basis and players can negotiate and if it works out better for an individual player or worse for an individual player, that’s the way it is?’

As long as they didn’t conspire on salaries, the players would take that tomorrow, and every club could have its individual risk and every owner make a judgment. The problem is that the owners want a salary cap, and any salary cap – even 57 per cent – underpays the players in the aggregate. Otherwise the salary cap is no good to the owners. It’s only good if it caps or artificially limits what the salaries would be.

Q: What differences have you noticed negotiating with Gary Bettman compared to baseball commissioner Bud Selig?

A: I don’t want to get into personality differences for any number of reasons, one of which is after these negotiations are over and time goes by I’ll probably have a more balanced view than I do now. Secondly, you have to remember that in Gary’s case and in Bud’s case – David Stern and Roger Goodell, too – the notion that they are representing their own personal view of the world rather than what their constituents want them to do is not consistent with my understanding of what happens.

If you put Roger Goodell in Gary’s job or Gary in Roger Goodell’s job you would get positions which are more or less the same because they are dictated by the owners and not the commissioners, unless they’re dictated by the common labour strategy of lock out and ask questions later, which exists in the cap sports. Baseball is different in one particular way, and this strikes me as more important as time goes on: Bud Selig is different than any other commissioner I know of with the exception of Al Davis in the early years of the American Football League and the reason is he owned a club and ran a team and he understands what it’s like at the ground level. Without that experience I’m not sure your perspective can be the same. The other thing is that the central operations of the other three sports have for a long time been more significant and larger than they are in hockey. I’m not sure why that is, and I’m not prepared to say it’s a significant difference yet.

Q: A lot of people wonder about NHL players going overseas during the lockout to take other players’ jobs away …

A: The owners in hockey locked out the players for a year last time. With the same outside advisers, you had a lockout in football and basketball and even had a lockout of the NFL officials, for goodness sake. They’ve been talking about it for a long time; everybody has known for a long time that the lockout is the strategy of first resort. So when they say they’re going to lock out and act like they’re going to lock out – and then do go and lock out – people tend to believe them. All professional athletes have short careers, they need to play when they can. And my understanding is that in most cases in Europe, the leagues have been expanded to allow for the extra positions that the NHL players are taking for what we hope will be a short period of time.

Q: That’s an interesting choice of words – that a lockout has become a “strategy of first resort.” Do you think that will ever change?

A: I don’t know. I wouldn’t have thought it would have lasted this long, but One of the problems you get into with a cap is it almost gives the owners an incentive to say: ‘Let’s lock out and see what happens.’ And that’s what has happened in all of the cap sports. I think it’s destructive, I think it creates an inherent stability – and I think it can make people look foolish, like it did in the NFL with the officials. But I think that’s the nature of cap bargaining. So, when Bob Goodenow years ago said that if you agree to a cap now you will have it for sure and the trend of lockouts is likely to continue, he was right.

Q: The owners seem to be saying that you haven’t made a real counterproposal, that you are merely repositioning. How would you respond?

A: It’s spin. I simply don’t treat it seriously. Look, the owners started out by running as fast as they could and as hard as they could away from the players, saying ‘Catch me if you can, even though every move you make is against your own interests.’ The players, instead of moving away from them, said: ‘All right, we want to try and make a deal. We’ll limit our future increases, we’ll do a couple of other things, but we want you to have additional revenue sharing and we want it targeted for the teams that need it, and we want you to cut costs so that there’s some shared sacrifice.

Oh, and by the way, how can you ask us to change free agency so that it’s worse for players, eliminate salary arbitration – all these other things – which were the tradeoff for the 24-per-cent concessions you got in the last lockout?’ The owners response is: So if 24 per cent of all these things isn’t what you want, how about a fully phased in 191/2 per cent that is now a 171/2-per-cent reduction? And still all those other things on the table and we don’t agree with you on player contracting issues and there are no other costs we can cut. And, oh, by the way, if we add an extra trainer you have to pay for that, too.’ This isn’t Ping-Pong. You have to distinguish between offers which are really made for the purpose of trying to reach an agreement and those which aren’t.

Q: Bill Daly said recently that the owners and players have addressed many of the other non-core issues, and that that is a change from previous negotiations. Why that change? Is that a personal philosophy?

A: From our standpoint, if you’re bogged down on one set of issues, you go and talk about the other ones. You try and get agreements where you can. We’ve been suggesting it, they resisted it for a week or two and finally said ‘Okay,’ and in some cases progress was made and in others not much. My view has always been you negotiate about what you can find a way to negotiate about, and if you can’t negotiate on subject A you move on to subject B and then come back to A. The players have endorsed it; it’s not a very difficult concept. It’s utilized in a lot of different industries, sometimes maybe you just have to keep meeting about the same thing even though not much else is different.

Q: There has been talk of mediation. Are you open to that?

A: If it would be thought to be helpful. You do have professional negotiators on both sides, but we’d consider it. There hasn’t been a tremendous record of mediators being able to lend a lot, but that doesn’t mean in a given situation that would not be the case.

Q: My Globe and Mail colleague David Shoalts wrote recently that a soft cap and luxury tax could get a deal done. Would you go for that? Do you think it would work?

A: We’d certainly be open to talking about something like that. So far, at least, there has been zero interest in discussing anything except an absolutely hard cap on the other side. It’s just a question from the owners position what the numbers would be. I think it’s something we’d be prepared to talk about if they were, but I want to caution you: It has not come up yet and I have no reason to believe the owners are interested in it. But anything which puts more pieces in play conceivably gives you more things to work with in attempting to construct an agreement. My personal interest is for something simpler rather than more complex but that pushes you in the direction of no cap, and that’s not a direction, as of yet, the players are prepared to go.

Q: A lot of people thought your initial proposal would be no cap …

A: When they say that, they think negotiations are about personal wants or desires or my own view about what a perfectly ordered world would look like, or the views of anybody sitting in my chair. We discussed all possibilities with the players, and the players said if we can make an agreement that we can live with and help stabilize the sport – that’s what the revenue sharing is all about – and get us out of this cycle without going backward, we’d like to try to do that. If we can’t, and it becomes clear after time that it becomes clear that we can’t, I don’t know that those instructions would hold.

Q: How do you respond to owners’ criticism that you delayed negotiations, and that a lot of stuff should have been done before we got to this point?

A: Spin. Does anybody think that our problem negotiating is that we haven’t talked enough? Or that you can’t run a calculation and figure out what a 171/2-per-cent reduction on the players’ share would be? Or that take less and not more is a difficult concept to understand? Or that free agency has to be 10 years in the league rather than it is now or salary arbitration … you know, this doesn’t take a lot of discussion. There may be a lot of issues. That’s not one of them.

Q: Why not just go to a 50/50 split and be done with it? Would that get a deal done?

A: It wouldn’t get it done in the immediate term, because it’s a 12 1/2 -per-cent pay cut. We have told the owners that the players were willing to – if we got revenue sharing and other stuff – have a fixed dollar amount share for two or three years which would have the effect of having it fall toward 50 and consider things past that.

Q: People have said that the players appear much more disciplined this time around …

A: Players are vastly more informed and aware that owners and their representatives will look for any confirmation of what they want to believe, which is that players are ready to give them back hundreds of millions of dollars and that it’s just this recalcitrant staff that doesn’t want them to. You have to be careful about sending that kind of message if you don’t want it believed.

We went through it in 1981 in baseball. There was a reporter who got hold of some Los Angeles Dodgers players, working out on a University of California-Riverside Field – this was pre-internet, much less Twitter – and said to them: ‘You know, what are you guys doing out here and would you like to be playing?’ What they said was: ‘Of course we’d like to be playing, but we won’t come back unless there’s a fair and equitable deal.’ That last half didn’t get reported, and the baseball owners shut down negotiations. A strike that should have ended in 41 or 42 days ended in 50. So you acquaint players with that. Having said that … one of the things we wonder is that if you have to have a rule like the owners do, where if you say anything that isn’t approved, you can be fined an enormous amount of money? That raises two questions: When in the world did we get to the point of regulating free speech in America again? And secondly, what is it we’re afraid they’re going to say?

Q: Canadian teams are doing well now, and one of the things you hear up here is, ‘Why don’t they just fold teams like Phoenix?’ Why is it important to the players that those teams survive? What if rosters of the remaining teams were expanded to prevent job loss?

A: My understanding is that the NHL went to the so-called southern strategy in an attempt to develop a national footprint in the U.S. for the purposes of a much larger national TV contract. There are a lot of people who think that strategy failed. From the players’ standpoint, we want a healthy league with as many teams as we can have and that raises two questions: If a team in city A could be doing much better in city B, and the fact that it’s still in city A is causing us labour problems, why don’t we move it? Atlanta moving to Winnipeg and getting rid of those problems is an example of that.

The second question in bargaining is: If a team is kept in a city in which it is not doing very well, and there is another place it could be relocated and do better and make labour relations and everything else easier, and the decision is to leave it in the first city, whose responsibility is that and who ought to bear the cost for it? Those questions from our standpoint have self-evident answers.

Q: Why shouldn’t the owners get a bigger share of revenue? They are the ones who take the risks. Why shouldn’t they be entitled to a bigger share?

A: First of all, when you get into entitled, you’re getting into a very strange concept in a capitalist economy. A player is entitled to a job, but if he can’t play, he doesn’t have the job. Not only that, if he plays this year as well as he did last year, but you find somebody else better, he won’t have the job. Second, were this an industry in which the owners were prepared to say: ‘We will have a free market, and let the owners do whatever they want with salaries on an individual basis and players can negotiate and if it works out better for an individual player or worse for an individual player, that’s the way it is?’

As long as they didn’t conspire on salaries, the players would take that tomorrow, and every club could have its individual risk and every owner make a judgment. The problem is that the owners want a salary cap, and any salary cap – even 57 per cent – underpays the players in the aggregate. Otherwise the salary cap is no good to the owners. It’s only good if it caps or artificially limits what the salaries would be.

Q: What differences have you noticed negotiating with Gary Bettman compared to baseball commissioner Bud Selig?

A: I don’t want to get into personality differences for any number of reasons, one of which is after these negotiations are over and time goes by I’ll probably have a more balanced view than I do now. Secondly, you have to remember that in Gary’s case and in Bud’s case – David Stern and Roger Goodell, too – the notion that they are representing their own personal view of the world rather than what their constituents want them to do is not consistent with my understanding of what happens. If you put Roger Goodell in Gary’s job or Gary in Roger Goodell’s job you would get positions which are more or less the same because they are dictated by the owners and not the commissioners, unless they’re dictated by the common labour strategy of lock out and ask questions later, which exists in the cap sports.

Baseball is different in one particular way, and this strikes me as more important as time goes on: Bud Selig is different than any other commissioner I know of with the exception of Al Davis in the early years of the American Football League and the reason is he owned a club and ran a team and he understands what it’s like at the ground level. Without that experience I’m not sure your perspective can be the same. The other thing is that the central operations of the other three sports have for a long time been more significant and larger than they are in hockey. I’m not sure why that is, and I’m not prepared to say it’s a significant difference yet.

Stay tuned for Flyers Faithful presenting the other side of the issue, from a league perspective.