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SBJ/Feb. 14-20, 2011/Labor and Agents
Back at the table
NHLPA chief embraces a fresh sports labor challenge
Published February 14, 2011, Page 1
“They have to be educated, and involved, and knowledgeable. That’s how you maintain your unity and cohesion.”
On maintaining player solidarity
Since succeeding Kenneth Moffett at the MLBPA on a temporary basis in 1983 (he was formally ratified in 1985), Fehr, 62, has been fighting for the rights of laborers — a unique brand of laborers, to be sure — against the millionaires, billionaires and corporations that own sports franchises. At least through the 2012 expiration of the current collective-bargaining agreement and perhaps beyond, he’ll do the same for the NHLPA. His new contract extends his tenure as the longest-serving labor leader in North American sports. It adds the distinction of Fehr being the only one to have served at the helm of more than one union.
Negotiations to replace or extend existing agreements in each of the major leagues are set against the backdrop of an uncertain economy, and a strong insistence by team owners and league executives that their sport can’t survive under its existing system. Yet franchise values continue to rise, setting the stage for especially contentious negotiations. For the next two years or so, news of progress or lack thereof, will be reported on day after day.
That in itself will be news. Other than sports, labor struggles rarely make the papers or the TV networks anymore. When Marvin Miller hired Fehr as the MLBPA’s general counsel in 1977, George Meany was running the AFL-CIO, Albert Shanker was the president of the United Federation of Teachers, César Chávez was still a potent organizing force with farm workers, and the hunt for the missing former Teamsters leader Jimmy Hoffa remained in the news. All were national figures and familiar names. Today, less than 10 percent of the private-sector work force belongs to a union. The average middle manager would be hard-pressed to name the head of a single one.
If he did know one, it would likely be Fehr. “There has been a dramatic decrease in strikes and work stoppages over the past 50 years,” says Robert Angelo, who teaches sports labor relations at Rutgers. “Sports unions have been responsible for more of them than any others. They’re the only unions that are ever in the news.”
Fehr, with Tampa Bay Rays owner Stuart Sternberg in 2008, didn’t make friends across the baseball bargaining table, but he didn’t make enemies, either.
But, make no mistake, Fehr was remarkably effective over the years at finding ways to get the MLBPA much of what it wanted. He didn’t make many friends across the table, but he didn’t make enemies, either. “I’d say he was a pragmatist,” says Jerry McMorris, former Colorado Rockies owner. “He’s smart, he’s capable, he’s articulate. But he was very much a hard-liner about everything. That was his way of retaining the status quo.”
He left the MLBPA job having helped to forge agreements with five extraordinarily different commissioners: Kuhn, Ueberroth, Giamatti, Vincent and Selig. “The job of a union leader is to represent his constituents, and he did that very well,” said Richard Ravitch, a former lieutenant governor of New York, who represented MLB owners during the 1994-95 collective-bargaining sessions. “As a negotiator, he was a terrific in-fighter. He was also a totally honorable person to deal with.”
And then, being a management man talking about a labor leader, Ravitch can’t resist a dig. “Humorless,” he said, “but totally honorable.”
The lasting vision that many fans will have of Fehr is his testimony before a 2005 congressional panel. Part of a parade of witnesses that didn’t seem to comprehend America’s anger at the steroid-tainted spectacle baseball had become, Fehr’s appearance was perhaps the most cacophonous. To many, he seemed to be defending players’ right to use performance-enhancing drugs. “I can’t take Don’s position that using steroids — which was illegal — was in the best interests for his players, let alone the game,” McMorris said.
His actual concern, as he attempted to explain at the time, was the grander issue of his constituents being forced to waive their rights to privacy by allowing testing outside the workplace. If that could be done by baseball owners today, he argued, the precedent was set for anyone else to do it tomorrow. The position was lost on an audience that wanted its record book back, but Fehr never wavered.
It was perceived as his most shameful hour by the world at large. “You have to wonder what planet the man was living on,” wrote Christine Brennan in USA Today. Yet MLBPA members saw it as perhaps his finest. “He was willing to take any amount of criticism on behalf of the players as part of his responsibility,” said Tony Clark, the 14-year MLB veteran who now serves as the union’s director of player relations. “We appreciate Don for everything that he’s done, especially including that.”
Fehr and MLB Commissioner Bud Selig were grilled by Congress over steroids in 2005.
Fehr retired as MLBPA head in 2008. As he explains it, he’d reached a natural finishing point for the work that he’d been helping to do since the 1970s, but the ongoing negative publicity after the 2005 congressional panel couldn’t have helped. “Michael [Weiner] was the right age,” he says now. “He knew the players. They wanted him. There was a perfectly seamless transition.”
He’d enjoyed working with ballplayers, though not because he liked rubbing shoulders. Missouri-raised, with a Midwestern directness that can seem dismissive, he’d made no effort to modify his personality to curry favor with his members. Many of them weren’t sure what to make of him, beyond the knowledge that he’d defend their interests to the end. “I literally had to keep a running vocabulary list of words he would use that were far over my head,” says Clark, who spent nearly a decade working alongside Fehr as a player representative and considers him one of the two or three smartest men he’s ever met. “You’d tilt your head sideways because you didn’t know how a given word came into play.”
Rather, what Fehr liked was being part of a team working toward a common goal. “You are a representative of a specified and finite group of individuals,” he explained. “It’s not like being their lawyer, and it’s not like being their agent, and it’s not like being their representative. It’s a peculiar kind of thing that, as far as I know, exists only in the world of labor relations.”
That these happened to be major leaguers put unusual constraints on the bargaining, for the number of positions available in the industry is artificially limited. New entrepreneurs can come in tomorrow and open a charter school, but they can’t create an MLB franchise without the consent of the existing ownership. That made the dynamic different than in most labor negotiations. It helped keep him interested.
He also liked moving the bar. “If you believe that labor unions and employee organizations have a meaningful role to play and that they can be affirmatively beneficial to the members, then helping to make that happen is going to be satisfying to you,” he said. “If someone was in business, he might equate it with meeting sales goals. Or getting tenure at a university. Or winning a Pulitzer. It’s that kind of thing to me.”
The problem with such a job is that there are exactly four of them, at least on the major stage. So when Fehr left the MLBPA, the last thing he thought he’d do was run another sports union. He wasn’t sure what he would do instead — the areas of opportunity for ex-labor leaders aren’t quite at the level as those for ex-CEOs — but he figured something would come up. As it happened, those opportunities turned out to be limited. You didn’t miss the announcement that he’d signed a lucrative consulting deal with a prominent company, or joined a major corporate board, or launched a speaking tour. Those things never happened. Perhaps because of that, when former defenseman Chris Chelios came asking for temporary help on behalf of the NHLPA in late August 2009, Fehr found himself inclined to listen.
The NHLPA had been in tumult for years. One longtime executive director, Alan Eagleson, had been convicted of fraud and embezzlement. His successor, Bob Goodenow, resigned when it became clear that the players were determined to accept a settlement to the 2004-05 labor dispute that he decidedly opposed. Ted Saskin followed for two years and was dismissed after allegations that he’d conspired to read e-mails sent on players’ NHLPA accounts. Paul Kelly, a lawyer and former prosecutor who had little experience in hockey and none in organized labor, lasted another two years.
Chelios, who served on the NHLPA’s executive board, knew Fehr because his agent, Tom Reich, had represented several prominent baseball players. Fehr was aware of the situation because the two unions have had frequent contact through the years. (Fehr and Goodenow also served together on the board of the Sports Lawyers Association.) “We’ve got these issues,” Chelios told him. “Can you come and talk to the guys?”
The initial discussions led to Fehr sitting in on NHLPA conference calls, then helping to write the organization’s constitution and find a new executive director. Along the way, Fehr came to see the NHLPA as less dysfunctional than it appeared. “This is an organization which, if properly administered by people paying attention and with the right kind of staff additions, can be put back together in reasonably short order,” he said. If he hadn’t believed that, he wouldn’t have bothered.
Richard Ravitch and Fehr were adversaries in 1994-95, when the players voted to strike.
And perhaps more than he’ll even admit to himself, Fehr had missed how it felt to lead his troops into battle. “Working with the hockey players … the experience was pretty satisfying,” he said. “The conclusion I came to was that I thought I could make a difference here.”
“I couldn’t believe how lucky the NHLPA was to get Fehr,” said Rutgers’ Angelo. “He’s got a tremendous track record at the bargaining table, he understands the internal operations of a sports union, and he can help the association build a leadership structure for the future, which has clearly been a weak area. ... It’s a home run.”
Fehr comes to this job as the most experienced labor negotiator in the history of American sports. “You develop a feel for it, an understanding of it,” he said. “You’ve got a better sense of how things are going to proceed.” But each cycle in each sport also brings a different set of circumstances. “It’s a very fluid process,” he said. “Sooner or later, you get down to an end point, and then you have to make judgments. And you go to the guys and you say, ‘What do you want to do here?’”
The same would be true in any labor union. Yet in tangible ways, players associations are fundamentally different. “In sports, unions aren’t coming in and negotiating the same salary for everyone,” said John Budd, a professor of labor relations at the University of Minnesota’s Carlson School of Management. “They’re setting protections, like a salary floor, but mostly trying to create a system of individual, performance-driven negotiations.”
The wide difference in skills among players is far more relevant in sports than in most industries. If you have an assembly line with a piece of equipment running past every minute, it doesn’t matter if a worker can fit together, say, four of them a minute because there aren’t four to be done. But it matters very much if he can’t fulfill the minimum demand of the job by doing at least one. “In baseball, if you hit .330, you’re doing really well — until they find someone who can hit .340,” Fehr said. “It’s a different standard. So you don’t have the promotion and layoff rules based on seniority.”
That’s one difference between the players associations of America’s four major sports and other unions. Here’s another: Even as the labor/management pendulum started to swing back toward management after decades of advances by workers, sports unions have remained remarkably successful. “We know exactly when the curve turned in the United States, with PATCO in the summer of 1981,” said Fehr, referring to President Reagan’s dismissal of striking air traffic controllers. Yet sports unions have managed to avoid the concessions that have characterized negotiations in many industries.
And all sports unions aren’t the same. “I keep reading that Don did this in baseball so he’s going to do it in hockey,” Kasten said. “That’s a mistake. Everything depends on conditions and circumstances.” In baseball, Kasten notes, the union tends to be extremely unified and the owners often not very unified at all. In hockey, “it’s almost the exact opposite situation. The union historically isn’t unified. And you can’t grow that overnight. Sometimes it takes generations.”
When Fehr took over the MLBPA, the owners and players had conducted CBA negotiations in 1968, 1970, 1972, 1973, 1976, 1980 and 1981. Fifteen years is a long career in baseball but not an unreasonably long one, so a significant number of players had been on rosters for all of them. That’s a formidable institutional memory that he doesn’t have with hockey. “Any time you have people who can explain to guys what their prior experiences have been and why those may be relevant in the current set of circumstances, you’re better off,” Fehr said. “Their opinions are going to be seasoned by what they’ve been through.”
When times got tough, Fehr could bring in labor pioneers such as Miller and Curt Flood to address the players, showing them the through line from the past to the present and the future. There’s no equivalent in hockey because the history isn’t there. “Baseball players came in and said, ‘Look, we want a minimum salary that’s appropriate,’” Fehr said. “We want very good pension and health care benefits, but we know that has an effect on salaries because you can’t spend the same dollar twice. And we want a market system to sort out the rest.’” And since market economics is tied to revenue, salaries have gone up in baseball because revenues have, too.
Since the 1994-95 work stoppage, at least, it has been a functional dynamic. “There hasn’t been a single day missed since then,” McMorris said. “If I had told you that would happen, I think you would have looked at me like something was wrong with me, but that’s how things have gone. And that has to be good for the sport.”
Hockey’s labor history has been more troubled. The institutional memory of the 2004-05 negotiations are of a process that “didn’t work very well,” in Fehr’s words. His initial mission will be to convince players that it is now an organization that they can expect will work diligently on their behalf. That sounds simple, but it’s crucially important. “If the players hold that attitude,” he said, “it’s a big plus in negotiations. If they don’t, it’s a big negative.” Throughout Fehr’s tenure, he managed to keep a vast majority of players on the same page and speaking with the same voice — his. “They have to be educated, and involved, and knowledgeable,” he said. “That’s how you maintain your unity and cohesion. So you spend a lot of time with the players in team meetings and group meetings and individual discussion. And time with their agents.”
But to believe in the union, the players first must believe in Fehr. For NHL players, that means his long, successful career needs to outweigh his lack of a prior connection to hockey, beyond having attended the occasional game. “We know that when he expresses an opinion, it carries weight because he’s been through these kinds of things,” Rafalski said. “He’s been involved in these issues, though he hasn’t been part of it from the hockey perspective.”
But other players knew little about Fehr. Paul Kelly had been an outsider beyond the tight-knit hockey community. That hire didn’t pan out, and now here was another outsider, from an entirely different sport.
To allay those concerns, Fehr embarked on a hopscotch of NHL training camps and arenas from California to Eastern Europe. Traveling with a cadre of NHLPA support staff, he wore jeans or khakis and sport jackets, not suits, setting the tone that he was more like them than like a corporate executive. He visited with each team and mostly listened, soaking up players’ concerns and aspirations. He didn’t pretend to know what issues were important, let alone how the union might construct a strategy to defend them.
Rafalski acknowledges that the average NHL player, who’d all but tuned out the union or has joined the league since 2005, still may not understand the importance of the process. “Players need to make the connection that this next CBA basically sets up for players what atmosphere they’re going to be playing in over the years to come,” Rafalski said. That’s why incremental gains are not often a goal for sports unions. “In most industries,” Fehr said, “if you don’t get something done now, maybe you can do it in the next three or five or seven years and the members can get the benefit of it then. That’s very unlikely to happen in sports. You want each agreement to be the best it possibly can because you have so much turnover between agreements.”
Most owners will still have their teams when the CBAs that are now being negotiated expire six or seven or eight years down the road. But today’s hockey players? Many, perhaps even most, will be long gone.
Fehr likes to say that negotiating a CBA is partially like chess and partially like poker. What he means is that it starts with all the pieces visible on the board, like chess. “You don’t know what the pieces will do,” he said, “but you have a pretty good idea of what they can do, and what the response might be to various moves on either side.” If an agreement hasn’t been reached as a deadline nears, negotiations morph into a different kind of game. “At that point, you’re into ‘What can we do here, and if we do, what will the response be?’ It becomes much less predictable.”
The poker part is, by its nature, imprecise. Information is sketchy. Attempting to read into the actions of the other side is perilous. Fehr believes the 50-day 1981 baseball strike lasted far longer than necessary because owners interpreted news accounts of players eager to return to action as meaning that the union’s membership was fractured.
After baseball’s high-profile strikes, Fehr is perhaps the most recognizable U.S. union chief.
Much has been made of Fehr’s relationship, good or bad, with the negotiators across the table. And as these latest rounds of talks begin with NBA and NFL proposals, personal motives are assigned to the various participants. But Fehr believes that personalities play a much smaller role in the process than most people think. “If Bud Selig and Michael Weiner swapped jobs entering the coming collective-bargaining negotiations, Selig representing the players and Weiner the owners, the basic position of the two sides wouldn’t change much, if at all,” he said. “The relative interests of the constituent groups are vastly more stable and significant than the personalities who are the spokesmen.”
Sometimes, those interests are simply at loggerheads, and one side — or both — is firmly entrenched. When that happens, some sort of work stoppage is almost inevitable. Does that mean that the negotiating process has failed? Many observers believe that it does. “From a third party’s viewpoint,” Fehr acknowledged, “an interruption of the business can be considered a failure because it can have adverse consequences for the people that you sell things to.” Fans hate canceled games. So do advertisers, marketers, the networks that own the broadcast rights, the owners of sports bars and of parking lots near arenas and stadiums … the ripple extends on and on.
Yet occasionally a stoppage is needed to restore sanity to the economics of the sport (owners’ perspective) or prove that the players would rather withhold their services than continue under what they perceive to be an unfair system (union perspective.) “There can be times in which you say that the alternative of accepting what’s on the table is not as attractive as the alternative of a stoppage,” Fehr said. “On both sides. So you talk to your membership, you describe what you think the result of doing whatever’s on the table will be and why you think other alternatives may be better, and then your constituents in the end make the judgment.” Not surprisingly, not everyone agrees with that approach. “I think,” McMorris said, “that he would rather litigate than negotiate.”
In 1981, with Miller as executive director and Fehr as general counsel, the MLBPA and the owners reached an impasse. The resulting strike lasted much of the summer and caused the cancellation of more than a third of the season. It happened again in 1994, under Fehr. That stoppage resulted in the loss of the 1994 postseason and lasted into the spring of 1995. In both cases, many sports executives may be surprised to learn, Fehr characterizes the process as successful. “I think the agreements that we reached were better than the agreements that could have been reached without the stoppage,” he said. “I wish we could have found some way to reach agreements that were acceptable and not have a stoppage. We couldn’t.”
Fehr won’t offer predictions on what will happen this time. He’s still in the fact-finding stage with hockey, and hasn’t begun to formulate a point of view on the relevant issues, let alone started to communicate that to players. He’s uncomfortable commenting on baseball, and he pleads ignorance with the NBA and NFL. But he’s certain about one thing. The simplistic version of each negotiations that we’ll hear and read will be only a partial view of reality. “The notion that you can reduce this very much of the time to a single variable is probably wrong,” Fehr said. “It isn’t just all about, ‘Will there be a salary cap? Luxury tax? Revenue sharing?’ A lot of different things can serve to bring the sides together. These are the tools from which an agreement is forged.”
Back in Toronto, the snow was falling harder by late afternoon. Fehr had an evening flight back to New York, where he still lives. He could talk about these issues all night and into the next day, but even in Toronto, snow snarls traffic, and he isn’t in the habit of missing planes. He took a phone call, then returned for a coda. “Marvin Miller used to define success to me this way,” he said. “‘You want to have an opportunity to negotiate the best agreement for your members, consistent with their wishes, that you think the economic circumstances will permit.’ There’s a healthy dose of pragmatism to that. … And I still don’t know how to define success any better.”
Bruce Schoenfeld is a writer in Colorado. He can be reached at firstname.lastname@example.org.