A lockout involving all 30 NHL teams became less of a certainty Monday even though the league and the players haven't reopened collective bargaining talks.
A scheduled Tuesday morning hearing with the Alberta Labour Relations Board — where the NHL Players' Association was to argue that locking out members of the Edmonton Oilers and Calgary Flames would be unlawful — ended up being cancelled Monday night.
Deputy commissioner Bill Daly had been expected to travel to Edmonton for the hearing and told The Canadian Press in an email: "This is a joke." However, after the NHL withdrew its claim with the labour board, Daly said he felt the league still had the legal authority to impose a lockout in Alberta.
The union disagreed, with general counsel Don Zavelo saying in a statement that he felt it would not be permitted. Donald Fehr, the NHLPA's executive director, took issue with Daly's characterization of the process.
"At this stage of the bargaining I wouldn't be treating anything as a joke," said Fehr. "The proceeding in Alberta is a proceeding that they instituted and then abandoned."
Under Alberta law, a mediator must be appointed before an employer imposes a lockout. The NHLPA objected to the NHL's right to do so on the grounds it failed to take proper steps during the process and showed no willingness to work with the mediator.
According to Fehr, the NHL then withdrew its request.
All of this has been playing out while the league and players continue to have no bargaining sessions scheduled before the current CBA expires at 11:59 p.m. ET on Saturday. The league has said it will enact a lockout if that deadline passes without an agreement.
The union also plans to file an application to the Quebec Labour Board this week in an effort to keep Montreal Canadiens players from being locked out. In Quebec, the NHLPA isn't recognized as a certified union, which it believes makes a lockout unlawful.
Even though the disputes in Alberta and Quebec would affect just three of 30 NHL teams, Habs defenceman Josh Gorges expressed hope that it would catch the attention of every owner.
"I think even though it's only three teams that may be involved in this, it may put pressure on other teams to say 'You know what, these guy are getting ready, they're practising, they're getting themselves ready to play — maybe we should have our players doing the same sort of thing,"' Gorges said on a conference call. "It's unfortunate that it's not the same laws in every city but I think it gives us an opportunity to put pressure on the owners to try to get a deal done so that other teams can join us and we can start playing on time."
The wheels have already been set in motion for the NHL to declare a work stoppage once the CBA expires this weekend. In fact, commissioner Gary Bettman won't even have to make the case for a third lockout under his tenure when the board of governors gathers in New York on Thursday afternoon.
"The commissioner doesn't need specific board authorization to institute or implement a lockout," Daly said in a recent interview. "That has been granted already in connection with his authority to conduct collective bargaining."
Essentially, the NHL is back where it started when the current CBA was signed in July 2005. That six-year deal — extended through a seventh because of an option held by the NHLPA— ended a lockout that saw the league become the first in North America to ever have an entire season wiped out by a work stoppage.
The union is planning its largest gathering since that deal was ratified with about 250 players expected to attend meetings Wednesday and Thursday. A number of stars, Sidney Crosby among them, are expected to take part in the show of strength.
"We want to brief the broadest possible group of players and it's always better to do it in person," said Fehr. "Whenever you're facing the possibility of a lockout what you need to do is make it as easy as possible for the maximum number of your constituents to hear it directly.
"We're going to have a very large number of players it looks like and you know how fast information travels through locker-rooms, so it won't be a problem getting it out to everyone else."
Fehr's phone has already been ringing off the hook. With very little progress to report during negotiations, a number of players have started looking around at other options.
Once a lockout is enacted, they'll be free to sign with other pro teams — and the union is actively advising them on their rights.
"We have to," said Fehr. "We basically have to say 'You have your contracts, you have the circumstances, this is what we think is likely to happen in negotiations. ... If you're going to consider playing elsewhere, here's the things we think you need to think about."'
The sides remain a long way off in negotiations and have only sat down together six of the last 21 days. Formal discussions haven't been held since Aug. 31.
However, there has been an ongoing dialogue.
"There were conversations back and forth between my brother [union special counsel Steve Fehr] and Bill all weekend," said Donald Fehr. "They're basically saying that unless we come to them and make a new big proposal then they do want to talk to us."
There will be some immediate changes if a deal isn't reached by Sunday. The NHL plans to adopt a policy similar to those instituted by the NBA and NFL during recent lockouts that forbids team employees from being in contact with players.
"Generally in a lockout situation management shouldn't be ... socializing with the locked-out labour," said Daly. "They aren't employees during the duration of the lockout."
One important difference from the league's last labour disruption is that the owners and players are fighting to divide up $3.3 billion US in annual revenues — a significant jump from the $2.1 billion it was generating seven years ago.
The business of hockey thrived during a CBA that included a global recession, but that momentum could be stalled by the NHL's fourth work stoppage in 20 years.
"We've already damaged our business and I imagine if we go past [Sept.] 15th and we engage in a work stoppage that it will obviously do further damage to our business," said Daly. "All of this is adding up, it's a cumulative effect, it's a fact of life. ...
"And when we ultimately resolve this dispute — and we will — it'll be something we have to deal with as part of the next collective bargaining agreement."