Don Fehr Executive Director of the NHL Players' Association address CAW Council

Toronto, Ontario

December 8, 2012

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Don Fehr Addresses the CAW Council
December 8, 2012

Toronto, Ontario
December 8, 2012

Don Fehr
Executive Director of the NHL Players' Association

"It's a rare privilege for me to be at a meeting like this. I have had the opportunity to attend similar meetings with other unions from time to time but it doesn't come around very often. And it's a good reminder about how the world works and what everyone's role in it is, and what we have to do in order to represent appropriately and improve the lives and circumstances of the members of our respective organizations.

I had hoped when this invitation came, and even earlier this week to be in a position to tell that we had successfully concluded an agreement and that the lockout is over. As you know I can't do that. I can't tell you when this lockout it's going to end. What I can tell you is that the only way it ends is to keep at the process and hope that eventually we are able to make it through the thicket of issues that are there.

I think most of you may know something about this history of this bargaining relationship, but many of you may not. Let me just take a minute and tell you in sort of outline form how we got here.

In the last round of bargaining which resulted in a lockout, which lost an entire season in 04/05, the eventual result of that agreement was two things: an absolute salary cap, which I'll come back to in a minute, and a massive reduction in player compensation worth billions of dollars to the owners over the life of this CBA, and that's billions of dollars in a bargaining unit which only has about 750 people in it.

What happened after that is that over the last 7 years, the NHL has experienced record growth. There have been record revenues that came into the league virtually every year, and hitting a record again last year. At a little more than 50 percent above the level that existed in the first year after the lockout and the first year before it.

And so we went into bargaining in hopes that 2 things would be recognized. The first one was the massive level of concessions the players had made in the prior agreement, and the second one was that by anyone's estimation, the circumstances of the league, its popularity, its revenue and so forth had increased in a fairly dramatic fashion.

The owners opening proposal, this is well-known so if I am repeating something that many of you know I hope you'll indulge me, was to ask for the same salary reduction in percentage terms that occurred the last time which was the small amount of 24 percent. Then several weeks later they improved their offer which they termed a "concession to the players" and that concession was only to reduce player compensation by 17 ½ percent.

Finally we got to the so-called 50-50 offer, about which there had been a lot of media speculation that this is what the owners were going for all along because that is what the result was more or less in other professional sports.

But that didn't come until slightly more than a month into the lockout. In addition, what the owners did was to propose to modify what we call player contracting rights to significantly reduce player individual contracting rights when they go to secure their own individual contracts. The players were not enamoured with these proposals. We made a series of proposals on our own including significant moves in the owners' direction to reduce what players would be paid by hundreds of thousands of dollars. It was not sufficient, and the owners instituted a lockout for the third time in the last 20 years.

You should not think however that this is a practice which is limited to hockey. In the three North American team professional sports, the big ones that have salary caps, which is the NFL, National Basketball Association and the National Hockey league, seemingly you have a lockout in every negotiation, it has become, and we've termed it this way publicly and across the table, not the strategy of last resort, which is how I learned to treat a strike, which is you only do it when all other options have been exhausted and that what's on the table is worse than not accepting it. That would seem to be the way not to approach a lockout. It doesn't seem to be that way with the NHL or in the other sports.

And this happens in an industry which does not face the type of competitive pressure that employers talk about in bargaining in many, many other industries. There is no major hockey league in North America. There is no outsourcing problem; we can't move the plant to Bangladesh. But it doesn't seem to matter, and it doesn't seem to matter what the economic circumstances of the league is.

You may recall if you follow it, that the NFL, which employs the same strategy, locked out its players as did the NBA, and there's nobody that's suggesting that the NFL is not enormously profitable and well-off. But they don't have any economic pressure either and they even locked out their referees.

And when somebody says to me what do hockey players have in common with other people that are in unions? Other people that are attempting to negotiate collective bargaining; other people that are attempting to improve or maintain the terms and conditions of employment that so many people over so many generations have struggled for. It is that it is basically the same situation. The industry is different, nobody is going to pretend that the amount of dollars which flow through it are the same per employee is the same is in others, but the struggle is more or less the same.

I must tell you that when I was asked, why I agreed to take this job, there were a number of reasons, but far and away the most important was that I had gotten to know many of the players. And what they said they were looking for, especially after the last lockout and everything that flowed from it is that they wanted to rebuild their organization, they wanted to create an entity that the players would be proud of, would support, and far and away would participate in.

I thought that was a pretty good thing to do and I had some experience in doing that. And I must tell you that the single most gratifying thing that I could have possibly imagined has taken place.

We have some pretty simple rules. Everything we do is 100 percent transparent. Any player that wants to attend a bargaining meeting or any other meeting we have with anybody, with any other purpose at any other time is free to do that.

And we have had many, many, many players attend. I think at last count more than 100 out of a bargaining unit of just over 700 where almost nobody lives where the negotiations take place.

I mentioned that I've some experience in these things. After I left law school, the first legal job I had following a clerkship with a court was to join a very small union side labour law firm in Kansas City where I was thrust into representing a wide range of clients that you would imagine in that environment: Teamsters, steel workers, electrical workers, any number of construction trades, mechanics at airlines, flight attendants, teachers, and on and on and on.

I then, through a lot of good fortune had the opportunity in 1977 to become a lawyer for the major league players association. That union at that time was headed by Marvin Miller who passed away last week; some of you may know something about him.

I went into that organization and part of me said "you know this is different, but how hard could this be? How tough can this be?" Well, I learned pretty quickly. I'll just give you one example of a contract issue that we negotiated that will illustrate that, and then the first experience I had with a long labour dispute.

Those of you that follow sports have probably heard the term Free Agent. And it's unique to sports because if you ask yourself what kind of a Free Agent construction worker or plumber or auto worker is, you'll scratch your head. It's not a term that makes any sense, it's a special term for sports because what we bargain about is "do you get to go look for another job and accept it if somebody wants to offer it to you?" That's the kind of elementary gut level stuff we are bargaining about.

In 1981 Free Agency was brand new in baseball. It had been around only for several years which was the product of basic agreement, which in baseball we call the Collective Bargaining Agreement. The owner's position was that we have to destroy that. We essentially have to take away from players their right to look for a job, the team that they want to play for, or where they want to live.
And there was a peculiar collective bargaining agreement at the time which I'll explain later if anybody wants the details. But it had a date that said if the players are going to go on strike they have to do that by a certain time. We were getting nowhere; we thought the owners were involved in unfair labour practices. We filed a charge with the National Labor Relations Board in the States, and ended up in a hearing in which we were seeking an order of the court that said we did not have to go on strike.

When we say that sports turns things upside down, well that is sort of it. And then the owners came in and said "oh no, no, no. If they want to go on strike they have to do it right now, this minute". And to the chagrin of myself and my wife, and to the displeasure of and Marvin Miller I lost the case, and the players went out. And the strike settled on the 50th day, on the day which was the day that the owners previously bought strike insurance ran out. The players were successful in that endeavour.

But there is an old English military ballad that somebody told me about when I was in college and the name of it is: The World Turned Upside Down. And that's sort of where it is, it's the world turned upside down.

That summer I also learned what the potential effect of professional athletes can have on other people in other unions, trying to struggle their way through their own problems. While we were on strike the Air Traffic controllers strike broke out in the States. And as most of you know, that strike was broken by an action of the President.

What I learned out of that, and what I learned in 1994, which was the second major strike the baseball players were involved in, which only ended when the federal courts found the owners had bargained in bad faith, and what I am witnessing here again this time around, is that whatever else professional athletes do, they can be, and I think are a reminder to everybody else of what it takes in a difficult struggle. And if indeed 750 or so players that I have the privilege to represent can help remind everybody of that, then that will be an important side benefit to what is otherwise a very difficult and unpleasant period.

Just a couple of other things, I know you've got a lot of things to do and I don't want to take up too much of your time. Professional athletes at the major league level are by definition the very best in the world at what they do. And everything they do is on television for everybody to see. They don't have job security in the ordinary sense, because even if you're doing great and you scored 25 goals last year and they can find somebody who can score 30 who is younger and cheaper, you have no guarantee of being there, the same way in basketball the same way in baseball.

How do they get there? They get there because they have a work ethic which is almost not to be believed. In my experience in baseball, in my experience in hockey now, and I have some reasonable experience in the Olympic movement, I was a board member of the United States Olympic Committee for 7 years, I think it was.
What comes through again and again is this. There are a handful of athletes whose physical skills are so overwhelming that they could probably play at this level no matter what, a tiny, tiny fraction. The way the other ones get to this level and stay there, is to out-work everybody, out-hustle everybody, and out-think everybody. You might not have figured out or anticipated that I would say "out-think" everybody. But professional sports are games are in which the people on the other team are attempting to interfere with what you do in ways that can give you concussions and broken bones. And that means you better be pretty smart to do this, and you better have a lot of situational awareness and learn very, very fast. And that's why we have no hesitation about having any and every player that wants to participate in bargaining meetings. That's why we communicate with them on a regular basis.
That's why on a staff level, and you know there aren't very many members even though they're spread out, you can basically on every major issue at any time, take a pulse and look for a consensus.

I learned a long, long time ago from Marvin Miller that in the end, if you really don't have any idea what to recommend, or none of the choices are good, or that none of the options appear to be tremendously better than the others, what you do is trust your membership. Because they'll tell you what the right thing to do is. All you have to do is make sure they know what the issues are and involve them enough so that they understand the context.
And so if there is any message that I can pass on to you, it would probably be just to reaffirm that which you already know, which is if is you trust your members, and you tell them the truth and you involve them in the process, you'll get about as far as it's possible to go, and you can't ask for more.

Thank you!"

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