JEFF SAUER—With a plethora of young American talent disseminated across the National Hockey League (“NHL”) today, American hockey fans were disappointed to watch a United States Olympic Men’s Ice Hockey team–typically a perennial powerhouse in the event–depleted of any top-end talent in Pyeongchang in 2018. Even the captain of Team USA, Brian Gionta, a 39-year-old NHL journeyman, failed to garner any serious interest from NHL teams this offseason. Although Gionta was once a 48-goal scorer for the New Jersey Devils, he has not been considered an elite talent on the ice for quite some time, and epitomizes the Team USA roster that seems to be made up of has-beens and never-weres. Many teams typically comprised of NHL stars such as Canada and Sweden face a similar dim narrative.
Since mandatory Olympic participation was not included in the 2013 collective bargaining agreement (“CBA”) between the NHL owners and the Players Association (“NHLPA”), the decision to allow current NHL players to participate in Pyeongchang rested solely with the owners, who decided against player participation for the first time in over twenty years. Much of the blame in the court of public opinion has been shunted towards the NHL owners in a familiar narrative depicting greed and shortsightedness. NHLPA Executive Director Donald Fehr described the owners’ position as nothing more than “ . . . [S]omebody pay me. Gee, you guys don’t want to pay me? Okay, I’m going home. That’s about it.” Dozens of NHL superstars have also spoken out on the issue, none more prominent than Russian forward Alex Ovechkin, who made headlines this summer when he seriously considered sitting out the 2018 NHL season in order to represent his home country in the 2018 Olympics. While it is easy to deflect the blameworthiness towards NHL owners, who have cited injury concerns, costs, and a lack of any tangible benefit as the primary reasons for the decision, the real fault lies with the NHLPA for failing to mandate Olympic participation in the 2013 CBA negotiations.
Collective bargaining is an industrial relations mechanism that specifically defines the scope of an employment relationship between employers and an entire group of employees on a variety of issues. With regards to the NHL specifically, the collective bargaining process between the NHLPA and the NHL owners results in a legally binding agreement that lays out policies agreed to such as salary cap, aspects of the draft and free agency, and, until recently, Olympic participation. While the National Labor Relations Board (“NLRB”) lists several mandatory subjects that employers and unions must bargain over during CBA negotiations–wages, hours, and working conditions–there remains permissive subjects to collective bargaining negotiations in which the two sides are expected to strategically engage in an exercise of give-and-take in order to make sure they can secure rights in the best interests of their representative party. This is where the NHLPA failed the NHL players.
Olympic participation was in fact mandated in the previous expired CBA that allowed NHL players to participate in the 2006 and 2010 Winter Olympic games. Why then did the NHLPA not fight harder at the negotiation table to renew this mandate? The answer really is a lackadaisical approach by NHLPA representatives who were focused on what they believed to be more important negotiable terms. Donald Fehr himself has said, “in retrospect . . . had anyone been able to anticipate this kind of an approach [from the owners]? Perhaps. But in the kind of bargaining we were in . . . we were focused on much larger things. And the players made very large concessions to the owners, and the response appears to be they weren’t big enough.”
Regardless of the sizeable concessions the NHLPA may have made to the owners at the negotiations table, it is the responsibility of union leaders and representatives to both recognize and prioritize the permissive subjects that are in the best interests of their union members, and then fight for those subjects accordingly. It is clear from the backlash from both NHL players and fans that the NHLPA grossly miscalculated the importance of securing a written agreement in the CBA to mandate Olympic participation. Despite coming to an agreement to allow players to go to the 2014 Winter Olympics in Sochi, there was no legal requirement forcing the owners to allow participation in Pyeongchang, which not only places their players at heightened risk for injury, but causes a fairly significant disruption in the NHL schedule as well.
So when superstar Alex Ovechkin sarcastically “thanked” NHL Commissioner Gary Bettman in a February 13th interview for being the reason he would be watching Team Russia, as opposed to playing with them in Pyeongchang, perhaps his passive aggression was not aimed as accurately as his usually lethal slap shot. Instead, look to Donald Fehr and the rest of the NHLPA representatives, who admitted that the “short answer” is that “no one envisioned that the owners would take this kind of view, which is basically just short-sighted and clearly contrary to the best interest of the game and the growth of the game.” Even though that may be accurate, it is the pivotal role of any union representative to do exactly that: anticipate the employer’s motives, and negotiate accordingly.