Can federal mediation end the NHL lockout?

Bruce Bennett

The NHL and NHLPA's agreement to accept federal mediation seems like a positive sign. But will it help end the lockout?

With the calendar set to flip to December without a new Collective Bargaining Agreement, the NHL and NHLPA announced Monday they will accept the offer of the Federal Mediation and Conciliation Service to meet in an attempt to bridge the gap between the two parties.

The question now is, how effectively can a third party - one that only suggests possible solutions as opposed to setting an agreement like in binding arbitration - help the process?

At the very least, the mediation gets the two sides back to the table and perhaps adds some outside perspective to the process after both sides have portrayed the other as inefficient and unwilling to compromise. The dispute is now to the point where a lost season costs both sides a whole lot more revenue than simply settling on the difference between the two sides would. But of course, in the shadow of the 2004 lockout that cancelled a season, there's not a lot of trust left for one another on either side.

While the two sides had spoken skeptically of possible mediation as recently as last week, the FMCS stepped and offered its services due to the lockout's impact on the North American economy.

While there certainly is the matter of the $3.3 billion the league generated last year, there also are untold billions spent at bars, restaurants and stores impacted by the league's business that aren't equated in that official figure. With the important holiday shopping season having kicked off this past week, the fact that NHL merchandise is seemingly moving at a trickle is leaving stores who stocked up on gear - ordered months ago, before the labor dispute even began - holding the bag, as many of the NHL's consumers are spending their dollars on other entertainment options and gifts this year.

On the surface, mediation certainly is a positive step. The question is: how close are the two sides to an actual settlement?

A mediator is like a counselor, someone who is only effective if the patients are willing to be helped. If either side is determined to still hold out in the hopes of extracting another concession out of the other party, that pretty much nullifies the process. It's not that both sides don't know each other's stances inside and out - with the NHLPA studying the NFL and NBA lockouts of last year that paved the path for this lockout, and the NHL seeing how they can best former MLBPA rep Don Fehr. While both sides think they know what the other is looking for, on some of the smaller issues, perhaps deals can be made.

The one sizeable drawback is that a third-party mediation would almost certainly be required down the road if the dispute enters the courts to validate the process and allow the sides to claim they talked in "good faith" should either side feel it's reached an "impasse." A judge or other official would almost certainly want proof the two sides are bargaining in good faith, and while both sides have accused the other of not doing so to this point, now is their chance to have a mediator present to, in a sense, justify that they are.

While the mediation is set to begin Wednesday, the next key date in this dispute seems to really be a week from that date on Dec. 5, when the NHL's Board of Governors holds its annual meeting in New York. Should a settlement be reached before that point, the BOG will be present to ratify it.

However, the more likely scenario is that NHL commissioner Gary Bettman will update the BOG on its progress - or lack thereof - and they will hand Bettman the launch codes to cancel the entire 2012-13 season if he deems it necessary.

While merely a formality - in reality, Bettman is empowered to strike or void a deal whenever he wants, as long as just 8 NHL clubs agree with him - it is an important line in the sand and likely the eventual end game for this dispute.

Brinksmanship has become the name of the game in modern sports labor with both sides well-stocked in terms of finances, and the NHL is playing its own style and ready to take the game to the "fiscal cliff."

While the amount between the two parties is minute compared to not settling and losing a season, both sides have been deliberately slow through over 10 weeks of talks that have left both parties, fans, sponsors and broadcasters increasingly frustrated - and increasingly apathetic - as money is being left on the table.

Both sides appear to be using the tactic of trying to wait the other out.

Owners hoping the mounting number of lost checks cause a rift in the NHLPA, while players are hoping sponsors revolt on the NHL - with a plan for a resolution at a certain point.

If the BOG gives Bettman the power to cancel the season, you can expect the NHLPA to at least to move towards decertification, a process that the NHLPA hopes concerns the NHL enough about potentially taking the outcome out of its control to stop the lockout. It became a factor in last year's NBA talks and led to a settlement, and the expectation is Fehr would use it in this case as the player's trump card to force the owners to settle.

Mediation certainly can't hurt the process, although it's probably not going to bring a solution in the short term.

But both sides are reaching a critical point in this lockout as the stakes are being raised.

For the NHL, sponsorship dollars drop a reported 25 percent if 61 games aren't played in a season, and that likely would require a mid-December start at the latest, with Kraft already cancelling a 2013 event over the dispute. The lost revenue during the holiday season won't help matters for the league as the increasingly important second quarter of the season - where focus on the NFL and NCAA football seasons wane and more attention begins to turn to hockey - would just be under way and clearly, the NHL isn't generating much revenue at all.

For the players, while Fehr has received praise for his work with the MLBPA in circles, it is very important to note that the MLBPA never missed more than two months' worth of of pay during his tenure. The 1994 MLB dispute was a players' strike, timed by the union to hit the owners' most profitable point of the season, the playoffs and World Series. Despite his veteran union leadership, this is becoming uncharted territory for him as players are risking an entire season's worth of income.

The good news for the NHL is that the two parties slowly seem to be nudging towards a settlement, slowed by stalling tactics but at least financially, within range.

The bad news is while the mediation will help, the nuclear option may be the thing that seals the deal. And that might be at least a week away.

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