Less than a day after letting a self-imposed deadline pass to declare a "disclaimer of interest," NHL players began voting to restore their executive board's authority to dissolve the union.
A 48-hour period for the NHLPA's membership to cast ballots opened at 6 p.m. ET on Thursday, according to a source.
The first vote, held over five days last month, passed overwhelmingly. Should at least two-thirds of players return a positive vote again and the NHLPA decide to notify the league it is disclaiming, it would open the door for players to file antitrust lawsuits.
The opening of a new disclaimer vote was part of a busy Thursday that saw much more action away from the bargaining room than in it. The NHLPA also filed its statement of defence with the district court in New York, arguing that the lawsuit filed by the NHL last month should be dismissed because it was brought forward for "strategic reasons."
"The NHL is using this suit in an attempt to force the players to remain in a union," it claimed.
The league had asked the court to rule on the legality of the lockout in a move considered to be a pre-emptive strike to a potential "disclaimer of interest" declaration from the NHLPA. The union had until Jan. 7 to make a response and elected to file its paperwork with the court a few days early.
Against that backdrop, the sides only met in small groups on Thursday — a departure from the frequent large group sessions they held in recent days. NHLPA special counsel Steve Fehr led a group of players and staff into an early afternoon meeting while an even smaller group returned in the evening to discuss the pension plan.
Both the league and union spent time meeting independently with U.S. federal mediator Scot Beckenbaugh, who rejoined talks this week, and were scheduled to gather together with him again on Friday morning.
Producing some progress
A good stretch of bargaining this week has produced some progress toward ending the labour dispute, including an apparent agreement between the sides to allow each team up to two compliance buyouts prior to the 2013-14 season. Those would allow teams to terminate player contracts without being penalized against the salary cap, although the buyout amounts would count against the players' overall share in revenue.
'We've come off our stance [of $67.5 million] and offered a $65-million cap to bring that number down. But a $60-million cap would just mean guys who ordinarily wouldn't be bought out or traded would be bought out or traded.' —Vancouver Canucks forward Manny Malhotra
"That is quite the concession from players … proof that NHL was going to hold firm on money being 'outside the system.'" Elliotte Friedman of Hockey Night in Canada tweeted Thursday morning.
The sides had also discussed a 20 per cent yearly salary variance in contracts, an improvement from the NHL's previous demand of 10 per cent.
However, the salary cap range for the 2013-14 season — the first full one under the new CBA — remained a significant hurdle, according to sources. The union is seeking a $65-million cap and a $44-million floor while the league has proposed an upper limit of $60 million and a lower limit of $44 million.
The biggest concern for the NHLPA is that lowering the cap from its current position of $70.2 million while transitioning to a 50-50 split of revenue will force a huge dispersal of players throughout the league.
"It's an arbitrary number that they've come up with," Canucks forward Manny Malhotra said Thursday in Vancouver. "Logistically, there's no sense to lowering it that much. We've come off our stance [of $67.5 million] and offered a $65-million cap to bring that number down. But a $60-million cap would just mean guys who ordinarily wouldn't be bought out or traded would be bought out or traded.
"So you're messing not just with the system, but you're messing with guys' lives. Guys have to move around, move families around, that normally wouldn't have to. It's really a non-starter for us. It doesn't make any sense whatsoever."
There is also lingering disagreement over who would shoulder the financial liability in a switch to a defined benefit pension plan for players.
"It's a very complicated issue," commissioner Gary Bettman said early Thursday morning. "The number of variables and the number of issues that have to be addressed by people who carry the title actuary or pension lawyer are pretty numerous and it's pretty easy to get off track.
"But that's something that we understand is important to the players and if we can get the issues resolved we're hopeful we can satisfy the players on that issue but that's still a work in progress."
With no agreement in sight, the financial losses are mounting for both sides.
The league was hoping a 52-game schedule could be squeezed in if a deal was reached this week and training camps opened over the weekend. Bettman has set a deadline of Jan. 11 to preserve a 48-game season, the minimum he says the NHL is willing to consider playing.
The difference in those two potential formats alone would cost the average player $120,000, based on an average yearly salary of $2.4 million and the gap between their projected pro-rated salaries. The combined loss of 60 extra events in buildings around the league would be even more for owners.
Clearly, it's something for both to think about. But with the lockout about to reach its 111th day, there was still no deal yet in sight.