The View From Wisconsin

I have had, over the last 24 hours, an epiphany of sorts about the NHL lockout.

I now believe that, with good reason, that there will be hockey in the new year, and when it occurs, it will be because of a CBA with some form of a salary cap system at its core.

My reasons for this change of heart began with a bit of inside information. I have a source – I won't say who or how – that suggests that there will probably be a deal within two weeks time.

It also came with a bit of news, albeit from a source I generally don't cater well to (the Toronto Globe and Mail). In a recent article, writer David Naylor pointed out here that the National Labor Relations Board (NLRB), once staffed with Democratic appointees, is now more conservative – thanks to President Bush, who appointed them to that position.

Now, granted, we are a far, far way off from the NLRB being involved in this whole situation. However, the NHL can actually use the example set by MLB 10 years ago to make sure that when they call for an impasse, it is, in fact, an impasse.

That, of course, is the rub of playing the "nuclear holocaust" scenario: the only way you can be sure that your labor negotiations are really at an impasse is after the fact, when the NLRB says it's there. However, the union's primary argument about "bargaining in good faith" hangs on whether or not demanding a salary cap as a basis of all future negotiation is considered such.

It is likely that the Bush appointees on the board would rule, as long as the league did everything else correctly and by the book, that the league has every right to set down requirements for a deal. That means they can say "any agreement has to have a salary cap" (or "cost certainty," as Bettman has often put it).

It would then become that much harder for the players and the NHLPA to prove the league wasn't acting in good faith. Do remember, of course, that the burden of proof about "good faith bargaining" is on the union, and not on management. You can see how, barring any unforseen circumstances, that would put the players in a hard place.

There's also an external pressure on the NHLPA – if the declaration of an impasse were to be upheld by the NLRB, that would create a precedent; one that the other three major league sports would be more than willing to try to use in their future negotiations. And do remember, the NBA's CBA expires next year, and the NFL's the year after that (and MLB's the year after that). I would doubt that Billy Hunter, Gene Upshaw or (especially) Donald Fehr would want that to happen.

So this brings things back to the present. And, as much posturing as there is about rejecting deals, there is something to be noted in the most recent exchanges of proposals.

Namely, the NHLPA's 24 percent rollback of salaries really wasn't a PR move. It was an act of desperation, along the lines of a team that pulls its goalie when they're down by a goal with two minutes to go in the game.

I've pointed out before that experts in sports labor negotiations saw the 24% rollback as a bad precendent to set in CBA negotiations. The relatively-short history of sports bargaining has never seen such a large giveback, in terms of money, as the NHLPA's latest proposal. The NBA's recent salary giveback for exceeding a percentage of revenue doesn't even come close to what Goodenow and company committed to paper.

That move is a sign – a sign of desperation. It is a clear message from the NHLPA: we'll accept anything but a cap. That is a bad place to be put in, from a negotiation standpoint.

I think that it is time that Trevor Linden, Arturs Irbe and the rest of the PA's executive council sit down with Ted Saskin and Bob Goodenow and strongly consider the option of a "soft cap". That may be the only way the two sides can come away from these negotiations with some shred of dignity – and without completely destroying the game in the process.

You'll notice I said "soft cap", not the "hard cap" that the NHL put out there as one of their primary offers. A soft cap, or perhaps more appropriately a "sliding cap", varies based on revenue figures. If the NHLPA can get the cap number to be palatable – perhaps a top-end absolute of 60% and a "penalty phase" of 56% of league-wide revenues – they can sell it to their members as a way of salvaging the season and guaranteeing that, as long as revenues increase league-wide, the free-market system will continue for the top players.

I also think that the NHLPA will seek a lot of concessions in other areas to balance this out. Things like having a greater say in rules development, no restrictions on performance clauses or bonuses (perhaps an NFL-style "pro-rating" of bonuses over the life of the contract?), and a better arbitration system could be chips to cash in over the cap issue.

I believe that the NHL would be willing to consider a soft cap – if the players agreed to it. That way, the Bettman could declare victory and, as they say, get the hell out. Meanwhile, the NHLPA could bide its time, wait until the league is back on its feet financially, and then broach the subject of going capless once again.

I do believe that we're closer to a deal now than we've been for the last five years or so. And I also believe that neither side really wants to go nuclear and cancel the season. However, it's in the players' hands right now; if they want to get back on the ice, they can do it without really losing.

Remember: collective bargaining isn't about winning or losing – it's about working together to come up with the best deal possible for both sides. Sometimes management has the upper hand in the resulting agreement; sometimes labor gets the best of the deal. Sometimes the most important thing is to get the deal done.

It's time to get the deal done; there's too much at stake on both sides of the table.