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Hockey Tries to Determine What's Next
By JOE LAPOINTE

Published: February 18, 2005


he day after the cancellation of the 2004-5 National Hockey League season, people on each side of the labor dispute tried to figure out how a 2005-6 season could be held.

Commissioner Gary Bettman promised Wednesday that there would be a next season, and he did not rule out the option of starting it by declaring an impasse in collective bargaining and putting new terms of employment in effect.

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Such a move may prompt a strike by the players, the use of replacements and the filing of charges of unfair labor practices before the National Labor Relations Board. Under those circumstances, some players may be tempted to cross picket lines.

The prospect of the impasse strategy drew differing opinions from experts in labor law, including the labor board chairman who ruled in favor of baseball players when they charged owners with unfair labor practices after they declared an impasse during the 1994-95 strike.

"At this particular point, there is no ground for impasse," said William Gould, professor emeritus of law at Stanford, who was the chairman of the N.L.R.B from 1994 to 1998, referring to the hockey dispute. But he also said that the current board helped management in recent years by not seeking court injunctions.

Gould said compromises by the owners and the players early in the week suggested "there was still movement."

"The owners would not be in a position at this moment to say there is impasse," he said.

Some people in hockey said pressure was being applied to management and labor to make one final attempt to compromise so that a fragment of this season and the playoffs could be saved.

Pat Brisson, an IMG agent whose office in Santa Monica, Calif., has 62 N.H.L. clients, said yesterday that three owners told him that they had urged Bettman to try to negotiate later this week. He refused to name the owners.

Brisson said his clients and other players made the same request to Bob Goodenow, the executive director of the union, and Trevor Linden, the Vancouver player who is the union's president.

"There is conversation and agitation on both sides," Brisson said. "We had momentum and Gary pulled the rug out. The players' association made a lot of concessions. This could have been resolved."

Bill Daly, executive vice president for the N.H.L., denied that the owners had tried to influence Bettman. "We are getting zero remorse or pressure from our member clubs," Daly said in an e-mail message.

Brisson, and others in hockey, suggested that a salary-cap figure somewhere between the $42.5 million the owners offered and the $49 million the players demanded might have appealed to each side. But the bargaining stopped just before midnight Tuesday, well before Bettman's deadline of 11 a.m. Wednesday.

Daly said that "even $42.5 million was a stretch" for a salary cap without additional guarantees for cost containment, but he admitted that he had "heard rumblings" on the union side about resuming negotiations. "But it's all meaningless unless we hear back from the union," he said.

In an e-mail message late yesterday, Ted Saskin, the senior director of the union, wrote: "All the players understand the basis upon which Gary canceled the season. As a result, there is no expectation among the players that there would be any further negotiations."

Immediately after Bettman announced the cancellation Wednesday, communications began by telephone and e-mail among players, owners and those in management. Goodenow said at his news conference that a couple of owners had told him they would have accepted the last union offer, but he refused to name them.

Wayne Gretzky, part owner of the Phoenix Coyotes, told a Toronto radio station that "there seems to be a bit of a panic mode" on the hockey grapevine, but added, "As far as any kind of formal conversations, that is not true."

Referring to comments he had heard from players, Gretzky said they wanted to play.

Steve Yzerman, the captain of the Detroit Red Wings, told The Hockey News that he had hope for more talks. "I don't know if it's necessarily tonight, tomorrow morning, Friday night or Saturday," Yzerman said. "I know the season has been canceled, but it's not too late to uncancel it."

Charles Craver, professor of labor law at George Washington University, said the owners might succeed if they declared an impasse.

"They are at a point where their positions are irreconcilable," he said. "But you never know. I would not give up hope for the next week or so. They may get back to the bargaining table and realize, 'This is absolute insanity,' and they may save the season."

Craver also said such a strategy might work for the owners because some N.H.L. and minor league players would cross a picket line. "If they want to break the union," he said of the owners, "everything they are doing has been done well."

Mike Asensio, a labor relations lawyer in Columbus, Ohio, who works on the management side of these issues, said such a strategy could be risky, not because the players could prove the owners bargained in bad faith, but because they could argue that no impasse was reached.

When the labor board ruled in favor of the baseball players in 1995, during the Clinton administration, Democrats held a majority. Now Republicans make up a 2-1 majority of the board members.

Gould said the key in the 1994-95 baseball strike was that the N.L.R.B. sought an injunction in federal court against the owners. Under the current board, far fewer of those injunctions are sought, he said. "The players union would not have a lot going for it, even if it were to prevail on the impasse issue," Gould said