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A pair of recent columns from
Jesse Spector at the Sporting News and
Mark Spector at Sportsnet made the recommendation of bringing in a third-party to oversee negotiations and push them in the direction of the next collective bargaining agreement. Alternative Dispute Resolution is an incredibly effective pre-litigation tool that I've alluded to in earlier blog posts, so at the most simplistic level of discussion, I'm on board.
There's a few issues with the above-referenced, though. It appears neither Spector really understands how this whole legal process works, which kind of hurts their ability to sell this idea on a national level. Here's two excerpts from the respective pieces:
[JS]
In the spirit of getting the game on the right path, the league and union should agree to put aside 1 percent of hockey-related revenue per year to fund a new joint venture, which would be responsible for ensuring the health of not only the players, but the game. The money would pay hockey czar Shanahan and the staff that he would need—including an arbitrator to sort out the CBA—with anything left over to be donated to concussion research to help stamp out the scourge that has hockey in danger even before the men in suits muck it up further.
After selecting the CBA arbitrator and overseeing those proceedings, Shanahan’s role would include his current responsibilities, as the man in charge of NHL disciplinary decisions. It would be up to him, in concert with the league and union, to develop a fair appeals process, as well, something that has been sorely lacking. Doing so also would remove the stigma of the league’s current disciplinary system, seen as a tool of ownership.
The proposal that the two sides agree to a third-party to act in a manner that guides the National Hockey League, collectively, to a new CBA is something that should have been in place a long time ago.
Where do I think the design falls short? Right at the word arbitrator. Although Jesse didn't exactly specify what kind of arbitration(binding or non-binding) process would occur, I can't see either being a realistic, agreeable action for both parties involved. Binding arbitration takes the matter entirely out of the hands of the owners and the union -- in an ideal world, this is your answer. In reality, parties involved will shiver at the thought of losing any semblance of control over the negotiation process.
Non-binding arbitration is a lot like mediation, with one principal difference: The arbitrator simply makes a ruling and walks away. His proposal of a fair deal may or may not be accepted. If (and really, when) it's not, the two parties are stuck miles apart, without a third-party to push negotiations in the right direction.
Again, Jesse's not really specific here, but I don't see arbitration -- either form of arbitration -- as being the right option here.
Now, let's take a look at Mark Spector's piece.
[MS]
If both these sides are as committed to playing hockey as they'd like us to think, why isn't anyone talking about binding arbitration? Let's bring in a mediator, let him look at the two sides' best offers, and find a middle ground.
Basically, the two sides are fighting over seven percent of the revenues. We believe, as do most folks, that if the split was moved to 50-50 the owners would say, "Let's play," and they could work out the other elements (contract term, age of unrestricted free agency, etc.) over time.
So, next time one of these yahoos declares "we're doing everything in our power to get the game back on the ice," ask them why they haven't used mediation?
Who should mediate? Well, I'm not busy right now.
Remember: You can't spell "mediator" without "media."
Since you already read my commentary on Jesse's piece above, you're probably wondering why the hell Mark is switching between arbitration and mediation fluidly, as if they're one process in the same. The answer: I'm not sure Mark is aware that arbitration and mediation are separate entities. Sadly, this kind of destroys the integrity of a great idea pitched in a widely-read column.
There's one question that Mark raises, though, that I've been echoing recurrently around these parts. Why hasn't the ADR process been used by the NHL and NHLPA as a mutually-fair weapon to involved parties? If both parties are sincere about reaching an agreement in good faith, and both parties are sincere that the $1B gap can't possibly be bridged right now, then there's little to no reason to write-off ADR at this juncture.
Again, there's two forms of mediation: Binding, and non-binding. Binding mediation is a relatively new form of ADR, but it still possesses the same problems that binding arbitration would, locking in two parties to a deal one [or, both] may not like. It's ideal for the fans, but it may or may not be ideal to either the players, the owners, or both. When you strip the powerful of power, things grow more contentious.
Non-binding mediation, though, is where I think this process needs to head. It's quite similar to non-binding arbitration, but the mediator will
continue to search for a middle-ground for the parties to reach, whereas the arbitrator walks away after making his
non-binding ruling. With such a massive gap between the two sides and an extreme likelihood that one of the two parties may not fully enjoy an initial ruling, this is absolutely key.
Decision-making and authority would still rest with the owners and union, but it would force the two sides to actively negotiate under a third-party that's acting in the best interests of no one. It's simply the most -- or, only -- realistic form of ADR that the fans can hope for, and because neither side is forced into any kind of agreement, it's one that the two sides may entertain.
This is a problem created by the owners and players. The solution will have to be found by the owners and players. Right now, non-binding mediation is the only way to expedite such a process.
Back with more tomorrow.
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