Owners want hard cap; players want luxury tax
One might imagine that the almost certain lockout of National Hockey League players at midnight on Sept. 15 will be a low point for everyone connected with the game, from the mostly forgotten fans on down the list.
But the lockout may well be just a starting point for cataclysmic upheaval that may best be likened to hockey's nuclear winter beginning with the unilateral imposition of a hard salary cap by owners followed by a swift strike by players and the possibility, indeed probability, of replacement players as the owners continue their drive to break the union.
The possibility is a sobering one when one considers the length of time the NHL stands to be idled and more significantly, what kind of blackened landscape would be left in the wake of such an unprecedented move.
"That is not something we're considering," NHL executive vice president and chief legal officer Bill Daly told ESPN.com on Thursday after some 20 hours of negotiations in Montreal over three days this week wrapped with the two sides firmly entrenched in positions that can only be described as diametrically opposed.
But Daly acknowledged the NHL has the power to unilaterally impose its will on the players when negotiations are deemed to have reached a final impasse.
"It would be legally possible to do that," Daly said.
In fact the NHL's labor Web site describes the circumstances under which the unilateral move could take place thusly; "if an impasse has been reached, and the contract has expired, an employer is allowed to 'unilaterally implement' that is, impose on the employees without the Union's agreement, its proposals which were bargained to in good faith."
Given the perpetual stalemate that promises to mark the coming weeks, it's possible the unilateral power (let's call it for want of a better term, the Bigfoot clause) could be implemented sooner than later.
The issue of a critical impasse is not a length of time issue, Daly said, but a "legal standard," of being able to establish that the two sides have bargained fairly but have no hope of resolving issues.
The conventional wisdom is that the lockout will reach its nadir sometime in December when the viability of even a shortened season (the two sides agreed at the last minute on a 48-game slate in 1994-95) reaches its critical mass.
If there's no agreement then and the season is scuttled, then owners could be expected to move to impose the salary cap and wait for the players to either cave in or go on strike as would be their right under labor law.
Given the player's association's solidarity (notwithstanding Jeremy Roenick's interesting suggestion this week of a cap on individual players' salaries, a proposal that resembles one of the six presented by the league late last month), expect the players to walk out under those circumstances.
"That's not something we're focused on," offered National Hockey League Players' Association senior director Ted Saskin.
But, Saskin acknowledged the move may be something that's part of the league's thought-process.
He cautioned that no major professional sport has successfully exercised such powers.
"It's a union-busting move if you can successfully implement it," Saskin said.
The National Football League used replacement players for three games (they lost another week when no games were played) when players struck over contract issues in 1987 but the strike lasted less than a month.
Major League Baseball invited replacement players to spring training in 1995 after a players' strike wiped out the last weeks of the 1994 season and the playoffs and World Series.
In the case of the baseball strike, five bills were introduced into Congress to put an end to the conflict and then-President Bill Clinton ordered the two sides to keep negotiating before a court-ordered injunction ended the 234-day strike.
Would hockey see that kind of concerted effort to bring an end to a similar lockout or strike?
The strike of America's national pastime nearly destroyed the game and took almost a decade for it to recover.
Hockey? A tree falling in the forest comes to mind.
Hockey enjoys no such lofty place in the American sporting psyche and it's clear owners are bargaining that players don't have the stomach for the long haul and that fans will return to the game whenever and whatever the circumstances even though a recent ESPN.com poll indicated almost 74 percent of the 32,359 respondents felt it was more important that the 2004-05 season start on time than the CBA be "fixed."
"They hope to put a lot of economic pressure on our players through a lockout," Saskin said. "We think it's a very ill-advised strategy."
The key, of course, is the question of good faith bargaining, concepts clearly absent from the current negotiations even though talks were extended beyond the originally scheduled two days this week.
The NHL will argue that their presentation of six separate proposals last month and the NHLPA's subsequent dismissal of those proposals, amounts to good faith bargaining.
The fact the NHL steadfastly refuses to acknowledge any notion of a luxury tax system as a viable alternative to the salary cap it craves, hardly qualifies as good faith bargaining especially given that a properly-designed luxury tax will give them exactly what they want, a significant drag on salaries.
The problem, Daly insisted, is that no one knows exactly how much money might be saved by a luxury tax because no one knows how a luxury tax is going to affect owners' behavior.
In short, owners can't be trusted to control themselves (if they could, we wouldn't be agonizing over the loss of an entire season and the potential crippling of the game for the foreseeable future) under a luxury tax system.
"Certainly the problem with a luxury tax is that it doesn't provide any certainty. You don't know how it will impact behavior," Daly said.
Given league losses that have topped the $1.8 billion mark over the life of the current collective bargaining agreement, "we don't have room for error anymore," Daly said. "We can't make a mistake again."
Saskin, of course, holds an entirely different view.
"We know it can work," he said of a luxury tax.
It's expected the union will take the information gleaned from a team-by-team assessment of the good and the bad of the current collective bargaining agreement and present another offer in the coming days.
But given that the union will not be serving up a proposal that includes a salary cap, it will be another exercise in futility, a harbinger of what seems certain to be the sport's bleak, cold future.
Scott Burnside is a freelance writer based in Atlanta and is a frequent contributor to ESPN.com.
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