Wednesday, September 17th, 2014

NHL Stall Stories

11

1) The NHLPA Approach to Bargaining:

The NHLPA negotiating strategy under Donald Fehr has become fairly obvious. Not only did Fehr delay opening negotiations for as long as possible, he has still not officially responded to the NHL initial proposal some three weeks after Gary Bettman tabled it.

The strategy appears to be annoying Gary. He answered a request for information with a 76,000 page financial data dump and muttered about how unnecessary it all was given the information the NHLPA already had. Not only did this let Fehr know that Bettman was getting impatient, it played into his hands by giving him an excuse to stall the tabling of his opening position even longer.

I suspect that his opening salvo will suggest an entirely different approach to solving the problem of the sad sack franchises built around baseball’s model. He will declare Gary’s solution – the CBA of 2005 – to be a failure. Perhaps, he will say, it is time to try something else.

(As an aside, is anyone else skeptical about the 76,000 pages bit? First, there is no reason for anyone to bother to count the number of pages in the document dump. Second, it’s an impossibly large number.)

While it is nice to see Gary struggle to maintain his normal level of smarminess, it is hard to see where Fehr ends up with this approach.

2) The Phoenix Coyotes Ownership Fiasco

Even though the City of Glendale has decided to subsidize hockey for the next 30 years, the latest deal still hasn’t gone through because Gord Jamison has not been able to raise the money. What a surprise.

Gary is stalling the deal while Jamison makes the rounds begging for money. This is an owner with the resources to lose big money until the franchise turns around?

3) The Todd Bertuzzi Trial

For the umpteenth time, the trial in Steve Moore’s civil suit has been postponed, this time until January. Nobody is saying why Moore’s lawyers requested yet another delay, but this is really getting old. The issue of liability has been settled and the only real question is the state of Moore’s health today and the amount of the damages.

I don’t really get why Moore and his lawyer keeps delaying this matter. It is not going to be a lot of fun for Moore, this day in court, but it won’t be any more fun for him in January.

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Comments

11 Responses to “NHL Stall Stories”
  1. Tyler says:

    Tom,

    According to The Globe, this adjournment was at the request of the defence. Moreover, I don’t know how you can say that Moore won’t enjoy his day in court without knowing what the offers have been to date – if you know, please share.

    I still don’t think this goes to trial. I think Moore’s trying to figure out if the NHL will throw some money into the pot and that it settles on the courthouse steps, regardless of whether they do.

  2. Tom says:

    I stand corrected on who requested the delay this time.

    I wasn’t specifically speaking about the result although I’m fairly certain the award will end up being far less than he is seeking. I was talking about the trial itself. I think it is pretty hard to put the NHL on the defensive here. Bertuzzi is accepting responsibility and so are the Canucks given the agreement they have with Bertuzzi about splitting the damage award. Given that Bertuzzi has nothing to deny, does he even have anything relevant to contribute at trial? Does he even testify? To what? Why?

    Isn’t the only issue, “How much?” The trial will be about Steve Moore, his recovery, his attempts to mitigate, his hockey playing abilities, his other employment options and his employment loss. I don’t think Moore will enjoy the experience.

    • Tyler says:

      I know, Bertuzzi has yet to admit liability. So that’s still an issue. That said, as a practical matter, I think he has effectively admitted liability – given that he admitted aggravated assault causing bodily injury (or whatever it was) it’s difficult to see how he could successfully resist finding of liability at trial.

      All of that being said, in less you know what Bertuzzi has offered to pay, it’s impossible to say whether or not Moore has made a bad decision proceeding to trial. We won’t know if that’s the case until there’s been a trial, a verdict and it comes time for the court to assess costs, at which point any formal offers to settle would be considered. For all any of us knows, the number Bertuzzi’s offered to pay as damages is wildly low and Moore is quite sensible in proceeding to trial. As an outsider, it’s impossible to have an educated position on that at this point.

      • Tom says:

        All of that being said, in less you know what Bertuzzi has offered to pay, it’s impossible to say whether or not Moore has made a bad decision proceeding to trial.

        I certainly agree with this.

        I just think he is going to have a great deal of trouble demonstrating a loss that even remotely approaches $38 MM. If I’m Bertuzzi, I might settle for $5 MM but I think it is fairly easy to make a case that says his real loss was closer to half of that. That’s why I think a trial is likely. The gap between what Moore wants and what I think the labour market analysts will see as his employment loss is just too big.

        I doubt if his employment loss approaches $38 MM even if his injuries have rendered him permanently unemployable.

  3. Tyler says:

    Ah – you’re hung up on the number in the Statement of Claim? That’s a placeholder number – you put in a number bigger than you could imagine getting. I guarantee he’s well below that for settlement and would be stunned if he expected it at trial.

  4. Tom says:

    I don’t think I am hung up on that number. I understand that it is a placeholder. In this case, though, the placeholder is really the only thing that is in dispute. This case has not been held up because Bertuzzi plans to deny guilt or because the Canucks are going to deny liability. The issue is damages and those damages come down to arithmetic.

    (The extent of Moore’s injuries may also be an issue if he is claiming permanent impairment. He may be claiming that his post-hockey employment earnings will also be affected, but that’s still about arithmetic.)

    I think that is at the heart of the argument that says “They will settle.” Parties usually go to court to resolve liability issues. They do not often go to court in Canada to settle a damage claim, do they? The damage claim is methodology and assumptions and arithmetic that takes into account the possibility that Moore would have become an NHL regular as well as the probability he would not have had a good NHL career. Different approaches will produce different numbers but the difference between the top of that range and the bottom is always small enough that there is always a settlement. If the numbers produced by Moore’s expert and Bertuzzi’s expert are not at least in the same ballpark, one of them has made a very significant error.

    Where do you think Moore’s settlement point is? What does he expect at trial? If that number – Moore’s expectation – is reasonable, why hasn’t the case settled?

  5. snafu says:

    While it is nice to see Gary struggle to maintain his normal level of smarminess, it is hard to see where Fehr ends up with this approach.

    The only real hope Fehr has in gaining some leverage for the players is by delaying and forcing the NHL to lock out the players. There have to be several teams that don’t want a lockout, because they’re still making money. If some of them believe the zombies are indeed zombies and that this is a bandaid solution (as many of us have concluded), they just may decide to consider Fehr’s proposal. What if it seems appealing to a majority of the money-making teams?

    It may come down to just how much they love the system they have, and if they’re up for a game of chicken with the players.

    One wants to believe that some among them might remember how they felt about the current CBA when they “won” everything, and then how it played out. Will it be enough?

    • Tom says:

      There have to be several teams that don’t want a lockout, because they’re still making money. If some of them believe the zombies are indeed zombies and that this is a bandaid solution (as many of us have concluded), they just may decide to consider Fehr’s proposal. What if it seems appealing to a majority of the money-making teams?

      I don’t think any team wants a lockout, but they want the money. Bettman has asked for about $4 billion over the life of the contract and he expects to get at least $2 billion. Most of that money will end up in the pockets of the rich teams.

      While Bettman has also promised to improve revenue sharing, that is pretty meaningless given where they are now. In 2009, the league paid out about $150 MM in revenue sharing. Half of that came from playoff revenues, and a third came from the player’s escrow account. That left about $20 MM for the top ten revenue earners to cover. Chump change.

      Fehr wants the rich teams to forgo the $2 billion and to pony up some real cash to keep the zombies breathing. This is not a tough call for a Jeremy Jacobs or Ed Snider. They want the players to give up before a lockout but if that’s what it takes to get Bettman’s plan…

      It is the zombies who might be better off with Fehr’s solution, but they don’t get a big say, I don’t think. (And I doubt if Fehr can solve the zombie problem either. It’s a different coloured bandaid, another short term solution that lasts until the revenue gap widens some more.)

  6. Nick says:

    I’m not sure what’s going to happen but I just hope these issues get resolved. We all want hockey come October!

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  1. [...] CANUCKS CORNER: Tom Benjamin weighs in on the NHLPA’s stall tactics with the NHL in recent CBA negotiations, the league stalling as it tries to facilitate the sale of the Phoenix Coyotes to Greg Jamison, and yet another delay in Steve Moore’s civil suit against Todd Bertuzzi. [...]



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