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January 26, 2005
Scott Burnside
Special to ESPN.com
Here's a prediction from one of Canada's leading labor and mediation
lawyers: The NHL and the players' association will never resolve their
dispute without outside help.
Never.
"When you look at this thing from the outside it screams out 'mediation,' "
Paul Boniferro, a partner and head of the labor and employment law group for
McCarthy Tetrault, Canada's largest law firm, told ESPN.com on Wednesday.
"And this thing will never be resolved with these two parties involved at
the bargaining table. Both sides have entrenched their positions so deeply.
They actually need a third party to come in and say, 'You have to drop
that.' "
At the same time Boniferro was sharing his thoughts on the 132-day old
lockout, the two sides were meeting at a secret Toronto location, trying
desperately to jump-start negotiations in an effort to save the 2004-05
season.
Representatives from both sides emerged after meeting for almost six hours
on Wednesday with little to report other than they will meet again this
week. A source close to the process said the meeting will likely continue
the trend of small, informal gatherings.
But as the sides continue to take baby steps toward a rapidly closing window
of opportunity, labor experts agree that had the sides agreed to outside
help earlier, fans would be pondering the NHL's latest game summaries, not
the tone of its obituary.
"The moment you agree to mediation, this thing's going to get resolved,"
Boniferro said.
How can he be so sure?
Let's do a test.
If the NHL told players it wanted a salary cap between $80 million and $90
million, would the players agree? In a heartbeat.
Conversely, if the NHLPA told the league it would endorse a luxury tax
threshold of $25 million with a $2 penalty for every dollar spent over that
amount, would the owners accept? Yes. In half-a-heartbeat.
Now put a mediator in the room and start to work from each premise. It
doesn't have to be a hockey person, Boniferro said, just someone that knows
the "pressure points" of the two positions.
This isn't the first time the need for a middleman has been sensed.
A mediator with the Federal Mediation and Conciliation Service, a
Washington-based government department which tracks all collective
bargaining in the United States, was appointed to the NHL and NHLPA and has
been in regular contact, reminding them of the services offered, spokesman
John Arnold said Wednesday.
"We continue to be ready to assist," Arnold said.
Would it help? Consider that 80 percent of the 5,000 cases in which the FMCS
assisted in 2004 ended with a settlement.
When the sides went three months without meeting, between September and
December, everyone from Wayne Gretzky to agent Don Meehan to Don Cherry was
touted as a potential deal-broker. OK, maybe not Don Cherry, but Ron MacLean
might have gotten the deal done.
Everyone has offered help. There's an open letter to NHL commissioner Gary
Bettman and NHLPA executive director Bob Goodenow posted on the Web site of
a Calgary-based petroleum development organization, the Petroleum Joint
Venture Association, outlining the benefits of mediation. It mirrors the
contents of a letter sent to Bettman by the 22,000-member NHL Fan's
Association in August.
Even Canadian Prime Minister Paul Martin offered up the services of the
federal government's mediation group. A group spokesperson said this week
the offer still stands.
Mediation has worked for groups and companies across North America's
business landscape -- from autoworkers to airlines to teachers to
steelworkers. The one area that seems impervious to such outside help is the
sports world.
"It's a leading-a-horse-to-water issue," said Mort Mitchnick, the former
chairman of the Ontario Labor Relations Board, now an independent mediator
whose past cases included Major League Baseball's salary arbitration
dispute.
The reason? Sports organizations tend to feel no one else understand their
specific issues.
"Some would say, 'What have you got to lose?' But the sports industry seems
to dance to its own tune," Mitchnick said. "I think they don't understand
the value that a mediator can bring to the table."
It would seem so. At every turn, players and owners have been strangely
defiant in their refusal to either acknowledge they need help or should seek
it out. In fact, the refusal to embrace outside help is about the only thing
the two sides have agreed upon since the lockout began on Sept. 16.
"It's not about mediating," Bettman told Terry Frei in an interview posted
on ESPN.com in November. "Mediation is when the sides don't understand each
other. We understand each other fully."
Goodenow has been equally cold to the notion.
And so the hockey world waits as the two sides scurry from secret location
to secret location, trying to piece together a bridge while experienced
builders stand by and watch.
"I'm very surprised, quite frankly," Boniferro said. "That's a sign of both
sides not wanting to resolve their differences."
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