Sunday, July 18, 2010

We Have Nothing to Fear but Fehr Himself

The National Hockey League Players Association (NHLPA) appears to be gearing up for a bruising fight with the owners when the next collective bargaining agreement expires at the end of the 2012 season. Listening to the rumblings coming from the players and their association, it appears that they have decided who they want to lead that fight.

Donald Fehr, the former Director of the Major League Baseball Players Association.

Fehr, 61, is known as a pugnacious negotiator that is unrelenting in his negotiating tactics. One has only to look at the suspension of regular season play and the cancellation of the 1995 World Series under his watch to know that he is more than willing to use any means necessary to achieve the goals of his union.

Fehr taking a leadership role at the NHLPA is not a done deal, but if one listens to the comments from some players, he has significant support.

"He would be a huge asset for the NHLPA," according to Toronto defenseman Mike Komisarek. "To have him come in and lead this union, to round up and gather 700 guys and get them on the same page would be great."

Although Fehr hasn't officially declared himself as a candidate for the Executive Director's job, he has not ruled out accepting the position.

So if Donald Fehr becomes the the Executive Director of the NHLPA, what can we expect?

Fehr lead the MLBPA for 26 years and negotiated five labor contracts for the union. The most contentious was the aforementioned dispute between players and owners that saw the 1994 season canceled and the World Series suspended. Fehr, however, was involved in several major labor issues that changed the face of baseball.

In 1975, he argued against the reserve clause in baseball on behalf of pitchers Dave McNally and Andy Messersmith. Essentially, a baseball club could sign a player for a one year contract at the expiration of that players contract under the same terms as the old contract. This had the effect of making a player captive to the club that had signed them to their original contract and kept salaries low since the players could not bid out their services to other clubs.

McNally and Messersmith argued that since their contracts had expired, they were free to negotiate with other teams. In a ruling from arbitrator Peter Seitz, the reserve clause was abolished and free agency was instituted for baseball. After losing appeals in the court system, Major League Baseball established a free agency system that went into effect after a player had played six years at the major league level.

Fehr was also involved in winning a $280 million dollar award for the players after the owners were found guilty of colluding to forgo signing free agents. After the Seitz decision in 1985, 35 players opted for free agency. Only four were signed. In 1986, again only four free agents were signed to contracts and player salaries declined 16% that season.The players charged that the owners were colluding against them and brought multiple cases before an arbitrator.

Fehr was instrumental in shepherding these cases through arbitration, and in 1990, the cases were settled for a total of $280 million dollars. The award was granted to the MLBPA and it was left to the Fehr and the leadership of the union to determine how to distribute the funds to the aggrieved players.

If Fehr should become the Executive Director of the NHLPA, the owners should expect to face a negotiator that is tough, experienced, willing to do what is necessary to achieve the goals of the union. The players should expect a leader that can unify the somewhat disparate interests of the factions within the union. Fehr sums up his philosophy with this quote:

"...there's a simple rule about bargaining. You hope for the best, you do what you can, you treat the possibility of a work stoppage as a last resort, and you prepare for the worst. It's pretty basic stuff."

Don't let the oversimplification lull you into complacency. This is a leader with vast experience and the toughness to take owners to the mat. And he is willing to do so on behalf of his players.

There is no guarantee that Fehr will be named as the Executive Director, but it is interesting to note that Fehr has helped the NHLPA re-draw its constitution in a way that consolidates power back into the office of the Executive Director. Gone are a number of the dysfunctional committees of the past few years and the office of legal counsel has now been brought under the control of the Executive Director. Power in the union is now rests with the Executive Director.

The net effect of these moves is that the next time the union sits down with the owners, there will be a leader that will be truly empowered to act on behalf of the union.

The players are still licking their wounds after the last negotiation with the owners. Part of the internecine strife within the union is a reflection of that contentious negotiation. This time, the union is determined to present a united front behind a strong leader. This time, they are intent on not wilting in the face of pressure from the owners and Commissioner Gary Bettman.

It was apparent the last time that the union negotiated the CBA, under then Executive Director Bob Goodenow, that there was not unity. Fractures in the membership became apparent early in the negotiations and this allowed Bettman and the owners to move toward "cost certainty" and extract numerous concessions from the players.

Whether the players can remain united remains to be seen. The union is making adjustments to how they do business to negotiate from a potentially stronger position. They know that when they set down at the table with the owners, they will face a demand to lower player salaries through a lower salary cap.

It will take a strong negotiator to sit across from Bettman and company to adequately represent the player's interest. A negotiator that will hope for the best, prepare for the worst, and is willing to lead his charges on a walkout if necessary.

A negotiator like Donald Fehr.

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