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Volume 24 No. 156

Leagues and Governing Bodies

NHL Commissioner Gary Bettman and Deputy Commissioner Bill Daly are "expected to resume" talks with NHLPA Exec Dir Donald Fehr and several players "as soon as Wednesday, with early January now the potential target for somewhere between a 48- and 54-game season to begin," according to James Mirtle of the GLOBE & MAIL (12/11). In DC, Stephen Whyno noted it is uncertain "where the next collective bargaining talks will be held" because the NHLPA "no longer has its temporary office space" in N.Y. (, 12/10). In N.Y., Pat Leonard writes the four owners who were newcomers at last week's negotiations "were so discouraged by the process" that there is now the question of "which owners, if any, are willing to return to the table and try to sway their peers on the NHL's Board of Governors to accept any proposed deal" (N.Y. DAILY NEWS, 12/11). Meanwhile, in New Jersey, Tom Gulitti reports the NHL "plans to have no owners present for the next round of negotiations." Bettman and Daly would "likely be accompanied only by league attorney Bob Batterman" (Bergen RECORD, 12/11). In N.Y., Jeff Klein wrote Bettman may be "at least a month away from a 'drop dead' date for canceling the season" (, 12/10). In California, Eric Stephens wrote it is "clear that the NHL is leaving open for now the possibility of starting the season either on New Year's Eve or New Year's Day" (, 12/10). In DC, Katie Carrera writes it is "believed the league doesn't want the regular season to extend into May" (WASHINGTON POST, 12/11). Red Wings RW Dan Cleary: "Our belief is that we're going to pick it up and shoot for a Jan. 1 start. Because if nothing is going on by Jan.1 -- Jan. 15, I think, would be, for me, the be-all, end-all. I know they canceled Feb. 15 last time, but it's not even fathomable to have a season at that point" (, 12/10).

TOO MUCH FOCUS ON FEHR? Senators D Chris Phillips wondered if it is "time the NHL stopped focusing on Fehr and started to think about negotiating." Phillips said, "It just makes me question why (they) are wasting their time worrying about who's in the room and who's not in the room" (, 12/10). In Raleigh, Luke DeCock writes the NHL's "entire strategy appears to have been designed to discredit Fehr and sow discontent within the union." That "hasn't happened." The NHLPA's goal at this point is "peace with honor, salvaging enough from these negotiations to make it worthwhile" (Raleigh NEWS & OBSERVER, 12/11). Kings RW Kevin Westgarth, who is the focus of a lengthy Q&A with the N.Y. Times, said, "Guys want to play, but any guy that I've talked to, they understand the issues and they're very, very united. They're all on board with where we're going with the process and very much behind the negotiating committee. It's not just these 15 to 20 guys sitting in a room -- you have 700 -- and that is very nice to hear" (GLOBE & MAIL, 12/11). In Philadelphia, Frank Seravalli writes of the “maddening brilliance” of Fehr, whose “tactics have been fascinating.” Fehr has the NHL's negotiating committee “completely flummoxed" and he has "kept them guessing through every peak and valley in these negotiations.” Fehr was hired to “minimize his players' overall loss in these negotiations." He already has "done that -- the NHL players are not getting totally killed with this deal." With each "maddening move along the way, Fehr has gotten his players a little bit more from owners” (PHILADELPHIA DAILY NEWS, 12/11). Predators D Hal Gill said, "In talking to guys, we're strong, we believe in what we're doing." He added Fehr is "listening to what our concerns are and he's not dictating by any stretch." Gill: "If anything, we're telling him what to do" (Nashville TENNESSEAN, 12/11). Jets D Ron Hainsey: "I can't envision a scenario, where without the help of mediation or our leadership, that we can close any deal. I don't see how we do it" (CP, 12/10).

CONTRACTING RIGHTS NEW STICKING POINT: In Buffalo, John Vogl writes in order to finalize a deal, one of the parties "will need to budge on contract term limits" (BUFFALO NEWS, 12/11).'s Craig Custance wrote the "fight has become about protecting the middle class with the suggestion from the players that term limits will lead to bigger salary cap hits for the stars and less money left over for the middle class." It is "not a theory shared by the league." Daly yesterday in an e-mail wrote, "Squeezing the 'mid-level player' argument is one we heard for the first time last week. It's much more of a 'This is why we don't want to agree' rationalization, than it is a proven, cogent argument." Custance noted the NHL is "proposing five-year contract limits on signing a player from another team and seven-year contract limits on re-signing your own player (with a five percent variance limit)." The players last offered "an eight-year limit on contracts with a 25 percent variance." Blackhawks RW Jamal Mayers said, "We're not talking about a huge discrepancy here. They're at five and seven. We're at eight. Does anybody else see that?" (, 12/10). Cleary said, "The key with the max deals is going to be the variability. If you have only 5% variability on a five-year deal, that means nothing. The free-agent market becomes not as important. It's going to become a two-tiered salary system, like the NBA" (DETROIT FREE PRESS, 12/11). Penguins D Brooks Orpik said, "It's been tough to identify what exactly their hill is. It's kind of changed throughout the whole process. That's been one of the tougher things to try to figure out with the whole situation. Some guys refer to it as a 'moving target.' At one point, it seems like just (the division/sharing of) money was the issue, and they were willing to forgo all of the contracting rights. Then, the switch flipped and now it's all the contracting stuff that's holding up (an agreement)" (PITTSBURGH POST-GAZETTE, 12/11).

SIDES CAN COMPROMISE TOWARD DEAL: Cleary said, "Gary and Bill, they don't trust the GMs. They've blatantly, openly said that. And they're trying to find systems that they know they can't circumvent or they can't go out and spend all this kind of money. That's what they're trying to do" (, 12/10). In Minneapolis, Michael Russo wrote the sides are "closer to a deal than not provided 1) the NHL's moderate owners that Fehr and the players so enraged last week didn't really move to the hardliner column; 2) the league puts that $89 million 'Make Whole' money back on the table and other proposals." To do that, the players "apparently have to agree to a 10-year CBA with an eight-year mutual out-clause, five-year max deals and 5% max variances in salaries in every contract" (, 12/10). In Winnipeg, Ed Tait writes the lockout "will end when either side -- or both -- reaches the threshold of losses it is willing to absorb." In fact, if the lockout "was akin to a heavyweight fight, both corners must be close to tossing in the towel, what with their combatants busted and bruised and bleeding all over the ring." Owners are said to be "losing $18-20 million a day; the players have lost a whopping $558 million to date in salary." Predators C Colin Wilson: "The 50-50 is bad and a 14 per cent reduction (the NHL's first offer had the players' share of hockey-related revenue dropping to 43 per cent from 57) is bad, but I would have played if it wasn't for the fact I don't want to get bullied by the owners anymore. I want to remember this so that when the next CBA comes up we aren't bullied again" (WINNIPEG FREE PRESS, 12/11). YAHOO SPORTS' Nicholas Cotsonika wrote amid all the "headline-grabbing stuff since NHL labor talks broke down" last week, "lost were some of the details." There are some "key things that went unreported" (, 12/10).

TIME TO CHANGE THE GAME PLAN? In Toronto, Damien Cox writes the league's strategies "have been flawed -- too lawyer-based, not enough imagination on the communications side -- but Bettman and Co. are just as right in doing what they’re doing" as former NHLPA Exec Dir Bob Goodenow was in '04-05. The owners have "all the leverage and they apparently intend on using it, to some degree because they haven’t forgotten the way it was, the way it went." Fehr "doesn’t want the hockey world to remember the previous game in which the players, then coached by Goodenow, were up by 28 points with five minutes to go and were still passing on every down" (TORONTO STAR, 12/11). In New Jersey, Andrew Gross writes all "trust between the sides has evaporated, not that the players had much love for Bettman before this lockout." So has "any pretense of a partnership." The owners have "shown that unless the players abide by their rules, they'll take the pucks and go home" (Bergen RECORD, 12/11). In Detroit, Gregg Krupa writes the players "yield significant ground on almost every major issue, and Bettman and the owners are unrelenting." It is as if the owners are "spending all of their time on the players' end of the ice, scoring at will." So Fehr "rags the puck." He starts "forward, feints back, fakes a pass, delivers one and gets the puck back, all in the hope of yielding as few power-play goals as possible" (DETROIT NEWS, 12/11). In Ft. Worth, Mac Engel wrote, "Unlike when Fehr negotiated labor deals with baseball, he always had the advantage of having several pressure points the league had to deal with that would help force the issue with the owners to make a deal. Namely, television." With hockey, however, there are "not enough outside pressure points the league has to deal with to force itself to make a deal it does not want." Fehr's leverage is "considerably less in this negotiation" (, 12/10). In Vancouver, Ed Willes writes it is a "pattern in which the NHL has behaved shamefully, in which it's embarrassed itself and the game it's supposed to represent." Willes: "If you've ever belonged to a union; hell, if you've ever worked for some-one else, you should be enraged by the NHL's conduct" (Vancouver PROVINCE, 12/11).

ANTICIPATING FAN REACTIONS: In Boston, Steve Conroy notes Bruins President Cam Neely hopes that "whenever a deal is done, Bruins fans will be able to put aside any anger about the lockout and concentrate on the hockey." Neely said, "I know that they're going to be upset, and rightfully so, but I'm hopeful because of what's gone on the past few years." He said, "I think our fans are excited about our team and I don't see that changing. There will be fans who are upset, but that excitement should still be there" (BOSTON HERALD, 12/11). The GLOBE & MAIL's Roy MacGregor notes a Canadian lawyer was "musing privately last weekend over the possibility of season-ticket holders launching a class-action suit against the NHL and its 30 teams." His notion lies in the "possibility that season-ticket holders were deliberately misled when they either purchased or renewed their seats" (GLOBE & MAIL, 12/11).

MEDIA MONITOR: Both last night’s 11:30pm ET 90-minute edition and the 11:00pm ET 30-minute edition of ESPN’s “SportsCenter” did not report on the ongoing NHL lockout. The 11:00pm edition featured on the left side of the screen the headline “NHL Lockout Latest” as if the broadcast was going to discuss the lockout but never addressed the issue. The late-night edition of “SportsCenter” aired a 33-second update on NHL CBA negotiations (THE DAILY).

NHL Kings RW and NHLPA negotiating committee member Kevin Westgarth said it would be “unreasonable to restrict who is in the room” during CBA negotiations with the league, but that is “a decision for a great number of players to make,” according to Jeff Klein of the N.Y. TIMES. Westgarth said the “genesis” of the format to meet without NHL Commissioner Gary Bettman and NHLPA Exec Dir Donald Fehr “was a little strange.” Westgarth discussed what was “achieved by last week’s talks in New York, why the owners seem to be dodging mediation, why they dislike Donald Fehr, what really happened in the reported shouting match between [Bruins Owner] Jeremy Jacobs and [Sabres G] Ryan Miller, and where the two sides stand on key issues as new talks loom in the 12-week-old NHL lockout.” Below are excerpts from the Q&A:

Q: The week before you had mediators in the talks for two days and it didn’t help. Did the mediators suggest the players-owners-only format?
Westgarth: It was suggested right at the end of the mediation. … After that meeting Gary came to us with the idea to take staff out of the room. You have to wonder why you couldn’t do that through the mediator, or how invested they were on doing anything with a mediator. It’s been strange timing for many, many things.

Q: [Jets D] Ron Hainsey told me that there was a brief, three-minute period when the players met with the owners without even Steve Fehr in the room. It was just the players, no union staff.
Westgarth: Yes, I was in that meeting. It was very unorthodox. It was very strange to want to do that. I get it -- if I was one of them I’d rather tell us what the deal is instead of Don Fehr.

Q: It does seem, even from a neutral point of view, like the owners are making a massive effort to go around Don.
Westgarth: We’ve seen it before. Seven years ago the tactics were very similar. … I hope people understand that for the most part that these things that are said that demonize Don, these anonymous reports that, say, Don is misrepresenting information to the players -- I can pretty much assure you that’s coming from somewhere in the NHL. … There’s only four owners that have been involved in pretty much everything since the summer. It even became obvious that the guys they brought in last week had nowhere near a complete understanding of what the proposals were and where we were in the negotiations. There was a half dozen if not more players who knew exactly where we were and could detail every aspect of where we were at.

Q: What would you say the players’ side has gained in these talks so far?
Westgarth: I would say we’re getting a much better pension. There’s no question about that. … In my mind the pension is the only thing we can point to as a gain.

Q: What other issues are important going forward?
Westgarth: I kind of laugh when the owners say, “We need labor stability -- a deal of five years doesn’t do that.” They’re basically saying they’re going to lock us out again. They don’t have to lock us out, you know. I don’t know if this is an apt analogy, but it’s basically like shooting somebody in your living room and complaining that they’re bleeding on your carpet. … We’re being asked to accept a term of 10 years, where the average hockey career is about four and a half. … I’d say to accept a deal of that length is fundamentally unethical.

Q: What about individual contracts? The owners want to limit deals to five years, or seven in some specific cases. What’s the problem with that?
Westgarth: It’s very strange to hear the owners beating their drum so loudly on contract lengths. I don’t know -- maybe they want a two-tiered system (, 12/10).

The death of Cowboys LB Jerry Brown caused by teammate Josh Brent's drunk-driving accident can add "urgency to the need for the NFL and the union to attack drunk driving," according to Jarrett Bell of USA TODAY. The NFL can "begin by changing an alcohol policy that is so weak a player can get arrested for DUI after playing on 'Monday Night Football,' then take his place in the lineup the next Sunday," as what happened with Falcons RB Michael Turner earlier this season. A four-game suspension "should be the minimum for first-time DUI offenders." Bell: "A tougher policy will send the right message. And save lives" (USA TODAY, 12/11). Pro Football Talk's Mike Florio said the NFL and NFLPA “have been wrestling for years now over how to deal with DUI first offenses not involving any accident or injury or death." The NFL wants to have a "suspension for a first offense," while the union "has been resisting that." Florio: "This is how collective-bargaining works. ... But this is one of those rare situations where the two sides need to come together and say, ‘We need to do what’s in the best interest of the game, what’s in the best interest of the players.’" Players need to "contact the NFLPA ... and say, ‘We want there to be strict penalties’” (“Pro Football Talk,” NBC Sports Network, 12/10). ESPN’s Merril Hoge said the NFL should implement a "no-tolerance policy." Hoge: "If you’re in college and you get a DUI, you are no longer eligible to come to the National Football League. You are now just eliminated. If you get a DUI while you are in the National Football League, you are no longer a part of the National Football League." Hoge said if players were not allowed to play anymore after a DUI, players would say, "I’m going to make a better choice and I’m not going to take an innocent life in the process" ("SportsCenter," ESPN, 12/10).

NOT TAKING ADVANTAGE: In Jacksonville, Gene Frenette wondered why NFL players "don't take better precautions when it comes to consuming alcohol." NFL players "don't always take advantage of their own privileged life." They have "plenty of money to afford a limo driver or have teammates/friends come get them if they need a ride" (, 12/10). ESPN's Ron Jaworski noted the NFL and NFLPA "have a mechanism in place to avoid this type of tragedy. It ends up being the players' choice to use that mechanism and unfortunately, most of the players choose not to use it" ("SportsCenter," ESPN, 12/10). However, ESPN’s Chris Mortensen reported some players "do take advantage" of the car service provided by the league. The NFLPA estimates that 55-60 players "per month utilize the confidential service during a 12-month calendar year" (“Monday Night Countdown,” ESPN, 12/10).

STICKING AROUND: REUTERS' Simon Evans wrote the "tragic, unrelated deaths" of Brown and Chiefs LB Jovan Belcher "may have triggered fresh debate about the behavior of some of the sport's competitors, but has done nothing to harm the game's enormous popularity in the United States." Even after "the latest violent deaths there was no indication fans were turning away" (REUTERS, 12/10). NBC’s Bob Costas last night appeared on CNN’s “Piers Morgan Tonight” and said the NFL “is at a crossroads because there’s an issue about the fundamental nature of the game." Costas: "It’s so popular and so profitable, but it takes a tremendous toll on many of those who play it. Not just body, but as we’re now learning, mind and emotions” ("Piers Morgan Tonight," CNN, 12/10). 

As the NFL “confronts a raft of lawsuits brought by thousands of former players who accuse the league of hiding information about the dangers of concussions, a less visible battle that may have a more widespread effect in the sport is unfolding between the league and 32 of its current and former insurers,” according to Ken Belson of the N.Y. TIMES. The dispute “revolves around how much money, if any, the insurers are obliged to pay for the league’s mounting legal bills and the hundreds of millions of dollars in potential damages that might stem from the cases brought by the retired players.” Regardless of "how it is resolved, the dispute could hurt teams, leagues and schools at all levels if insurers raise premiums to compensate for the increased risk of lawsuits from the families of people who play hockey, lacrosse and other contact sports.” The NFL “may be equipped to handle these legal challenges,” but colleges, high schools and club teams “may be forced to consider severe measures in the face of liability issues, like raising fees to offset higher premiums; capping potential damages; and requiring players to sign away their right to sue coaches and schools.” Some schools and leagues “may even shut down teams because the expense and legal risk are too high.” The question for the NFL is “not whether the insurers are required to help the league, but rather what percent of the league’s expenses each insurer is obliged to cover.” The 32 insurance companies have “varying arguments against the league.” Some wrote policies “for a limited number of years and contend their obligations should also be limited.” Others “contend they wrote policies for the NFL’s marketing arm -- for licensing disputes, for example -- not the league itself” (N.Y. TIMES, 12/11).

LEAGUE TO APPEAL COURT'S STAY: The NFL plans to appeal a California court’s decision to stay the league’s lawsuit against dozens of its insurers. The insurers are seeking exemption from providing coverage in the event the league loses lawsuits filed by former players over the long-term damage playing the game allegedly had on their health. A California Superior Court judge late last month stayed the lawsuit, saying one brought by the insurers against the NFL in N.Y. should take precedence. The NFL last week filed a notice of appeal to the California Supreme Court, seeking expedited review, according to a letter sent by the NFL’s outside counsel to the judge overseeing the N.Y. case. The lawyer, William Phillips of Covington Burling, wrote the letter to affirm that notwithstanding the California decision, the NFL still sought the dismissal of the N.Y. lawsuit brought by the insurers against the league. “If the NFL defendants’ motions to dismiss in New York are granted in whole or in part on jurisdictional and other grounds available under New York law, then the California’s court premise that the New York and California cases are equally comprehensive -- with which we disagree on various grounds -- would become inoperative,” Phillips wrote to Judge Jeffrey Oing of the Supreme Court of the State of New York (Daniel Kaplan, SportsBusiness Journal).

A clearly unhappy Minnesota federal magistrate judge yesterday denied the NFL’s effort to sanction a former player for disclosing confidential discussions held to settle a lawsuit by retirees against NFL Films, but he admonished the retirees suing the league nevertheless. Magistrate Judge Arthur Boylan turned down the NFL effort because Bob Lurtsema was only a prospective class member and not one of the named plaintiffs who sued the NFL three years ago to force the league to pay them for their image rights. As a result, Boylan reasoned he was not affected by confidentiality restrictions. Lurtsema attended settlement discussions on Nov. 27, and appeared to violate a gag order by publishing a letter on the talks on a popular retiree blog, Boylan all but blasted Lurtsema for the content of that letter, however, saying it did a disservice to the retirees by mischaracterizing the situation. “While the court declines to find publication of the letter sanctionable, the letter completely ignores numerous issues and the existence of certain legal realities and serious risks involved in the case, and while advising retired players that acceptance of the settlement `should be your own call to make,’ they are only provided limited information and a view into personal animosities which have little relevance to the merits of the case or the settlement,” he wrote. Lurtsema had blasted the NFL’s settlement offer. The plaintiffs appear split between rival law firms, with one, Hausfeld LLC, pushing for the settlement, and others opposing. Those opposing plaintiff firms argued the gag order had been lifted and six named plaintiffs, including Fred Dryer and Dan Pastorini, filed personal declarations to that effect. In response, Boylan ordered those declarations sealed, saying they disclosed confidential information. And he strongly suggested their law firm, Bob Stein LLC, had orchestrated them. “There can be little doubt that the declarations were prepared and circulated for signatures by counsel,” Boylan wrote. The players are seeking class action status for their lawsuit, while the league is trying to have it dismissed. The NFL maintains the players signed away their rights in their contracts, while the retirees contend those rights only extended to the end of the CBAs during their playing days.