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NHL lockout 2012: Reality is, mediation might not solve anything

Sports labor law expert says it offers no guarantees

- The Washington Times - Tuesday, November 27, 2012

As the league and NHL Players' Association have spent months trying to end the lockout, many ideas have been shared across the bargaining table and from the outside. Bringing in a federal mediator was one.

"Couldn't hurt," NHLPA special counsel Steve Fehr said in Toronto a few weeks ago.

The NHL got on board with the idea and, beginning this week, the Federal Mediation and Conciliation Service will try to bridge the gap between the sides. But will mediators be able to help bring hockey back?

"My guess is just based on past history and the tone of the way things are going right now is that this is probably not going to produce a settlement," said Gary R. Roberts, dean and professor of law at Indiana University. Roberts is a sports labor law specialist who has published articles and book chapters on antitrust and labor issues. He also has served as president of the Sports Lawyers Association.

"This isn't like a hysterical couple doing divorces or a commercial dispute where one side or the other is just being totally unrealistic. These are two very sophisticated and experienced groups. I just don't see how much a mediator can bring to the table other than to remind them of what's at stake periodically."

What's at stake is $3.3 billion per year in revenues and the NHL's reputation. That's why deputy commissioner Bill Daly said the sides are ready to "try a new approach."

It's an approach that the owners and players tried in 2004-05; three days after a mediator became involved, the season was canceled. But the salary cap was an issue no one was willing to budge on then, and that was much later in the process.

Mediation was part of the NFL and NBA lockouts, too. Roberts said it appeared that the FMCS' involvement in the NFL work stoppage "accomplished almost nothing." The NHL situation might be different.

"Who knows how many seeds the mediator might plant that could eventually bear fruit," Roberts said. "It's hard to predict."

But it's worth a shot, given the current state of talks. The sides haven't met since Nov. 21, when the NHLPA's proposal was rejected by the owners.

"When you make a move toward them, if you're going to have an agreement, somebody has to say, 'Yes and now I can do this.' Instead they said, more or less, 'Yes, and what else can you do for me?'" NHLPA executive director Donald Fehr said Saturday night.

Frustration is building up over the stalemate from owners, players and fans. It's all too easy sometimes to get caught up in rhetoric and the idea of winning or losing the battle.

"Mediation tends to me a mechanism whereby tempers can be cooled, and people who are operating from unrealistic perspectives can be brought to see what reality is," Roberts said.

Roberts hasn't followed the specific issues of the NHL lockout as closely as those in the NBA and NFL. But given how the sides have not been able to agree on splitting hockey-related revenue, contract terms and other player rights, his characteristic of the talks was not encouraging.

"It sounds like they're pretty much at an impasse," he said. "Both sides have their perspectives and their objectives and neither side can accept a set of proposals that the other side insists is necessary. We really are at sort of a standstill."

About $182 million apart on core economic issues, there's further disagreement on matters such as contract length (players want none while owners want to institute a five-year limit) and arbitration rights.

Even if mediators Scot L. Beckenbaugh and John Sweeney cannot bring about a quick settlement, perhaps the value of their presence is in the development of new ideas.

"These are very smart people, they're very well prepared, they've run numbers out the wazoo. They know what's going on," Roberts said. "The only thing a mediator could conceivably do is come up with some complicated set of proposals that neither side has thought of up until this point in time that might pique their interest and get them started talking in a way that might lead to a result."

Already 422 regular-season games have been canceled, along with the Winter Classic and the All-Star Game. The NHLPA is considering decertification to force the owners' hand, and something has to give if the sides are to prevent the Stanley Cup from not being awarded for the second time in less than a decade.

But it's uncertain whether mediation will be the solution.

"If I knew the answer to that, I'd be a soothsayer," Roberts said. "I just don't think anybody really knows."

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