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Labor icon Miller: NHL players didn’t get message out

by Jack Gallagher

Well, I never thought it would come to this.

Jack Gallagher

It has been nearly two months since Gary Bettman stepped in front of a microphone at a packed news conference in New York to announce the formal cancellation of the 2004-05 NHL season.

It was clearly getting late in the game when Bettman made this move, but even now it still seems beyond belief.

A major North American pro sports league locking out its players and forgoing the entire season over a labor dispute?

Honestly, I didn’t think I would ever see the day.

My thoughts are not with the incredibly wealthy owners and millionaire players at this time, but rather the staffs of the league, teams and arenas — a large number of whom have been laid off or lost considerable amounts of income in the wake of the lockout.

This is where the real cost of the strike is felt — on the people who work to make it all possible and their families.

For some insight on why the NHL labor troubles reached the point of no return this season, I decided to consult with an expert in the field of collective bargaining in professional sports.

Marvin Miller is the former executive director of the Major League Baseball Players Association, a post he held from 1966-81. During this time he negotiated the union’s first five labor contracts and led the players in two strikes (1972, 1981).

His impact on baseball was immense.

Pulitzer Prize-winning sportswriter Red Smith once wrote that, after Babe Ruth, Miller was the second most influential man in the history of the game.

There are few who would dispute that notion.

Miller, who turned 88 on Thursday, is retired and living in New York now, but remains as sharp as a tack and informed on current events in the sports world.

He gave me his views on the NHL’s labor woes in a recent telephone interview.

“The management and ownership in hockey was saying publicly about a year-and-a-half before the lockout started — and before any negotiations had begun — that they were going to lock the players out.

“There is no mystery as to how the dispute started. The owners decided among themselves that they wanted a relationship between salary and revenue. They wanted to know what that cost would be.

“This is just polite language for ‘we are going to have a salary cap.’

“I think they knew from experience that they were unlikely to achieve this through negotiations, so they decided to try to break the union. It’s as simple as that.”

I asked Miller what his top priority was when negotiating in this type of an environment?

“You have to get a settlement. It has to be consistent with the job of a union and a union leadership, and that is to serve the best interests of its membership — and that certainly isn’t a salary cap.”

I wondered if public opinion ever carried any weight with Miller when it came to negotiating a settlement in a protracted dispute?

“My concern always was that the membership could get influenced by adverse publicity. By the failure of the media to report accurately or understand. I was concerned if it had an impact on the players themselves, but not concerned that much about the impact in general.”

A few weeks before the season was called off, the NHL players offered a 24 percent salary cut on existing contracts to try and help end the lockout.

Miller gave his thoughts on this most unusual, and seemingly incredible, strategic move.

“At the time, I thought this was very foolish bargaining strategy. It was a tremendous cut. For a union to make a proposal like that — and that was only part of their proposal, there were other major concessions — is feeding the fire. You are giving the most right-wing of the owners the chance to say, ‘Hey, we got them going.’

Miller says some of the players have been hurting their own cause.

“There have been a few unfortunate incidents of players having met privately with owners, outside of the union. I have seen this kind of thing before.

“It starts with a few (players) who are panicking, or who are right-wing, anti-union in secret all along. They think that if they do this kind of thing, they can bring about a settlement, when, the fact of the matter is, they bring about the exact opposite of what they want.

“The owners take a look at two or three or four of these guys and they make an instant multiplication. They decide there must be 20, 30, 40, maybe 200, who feel like this and aren’t talking yet.

“Instead of bringing about a settlement, what something like that does is encourage the owners, again, to believe they have the union tottering.”

I questioned Miller about the recent offer by Boston companies Bain Capital Partners and Game Plan to purchase the NHL for more than $3 billion.

Miller believes the release of this news was a clear attempt to intimidate the players.

“I think that was (publicized) to put a scare into the players. In a few of the lesser sports — like indoor soccer — there have been a few cases where all of the teams are owned by the league. Actually, that is probably a violation of antitrust law.”

What about the talk that the NHL will turn to replacement players next season if a labor agreement is not reached with the real players?

“It looks like they are heading that way. I think you have got enough of the owners thinking they have the union licked.

“It takes that kind of view and that kind of attitude to try something as foolish as bringing scabs in. One of the things that encourages them is that the newspapers just will not use the correct words.

“It sounds funny, but it is important. They don’t describe what the owners have in mind. The owners want to bring in scabs. It is a perfectly good, descriptive word.

” ‘Replacements’ don’t exist.”

Miller then provided a legal definition of the term and a factual account of its origin.

“Under law, the word ‘replacement’ is used by the National Labor Relations Board, to describe a situation where workers have been locked out and the owners and the management decide they will fire their entire staffs and bring in what are called ‘permanent replacements.’

(This is what happened in the 1981 strike by PATCO — the union for air traffic controllers in the United States — when then-President Ronald Reagan fired all of those who went on strike and brought in new people.)

“The word ‘replacement’ in this situation — where you’re not firing anybody, you’re just trying to break a union and a strike and bring in scabs — that word is absolutely, incorrectly being used by the media. They do it knowing that it is wrong.

“It stems from the NFL strike (in 1987). Back then, the television announcers — some of whom were ex-players — described the people the league brought in as ‘scabs.’

“The NFL owners then complained to the network and said they would have nothing further to do with them after their contract ended if that didn’t stop.

“The term ‘replacement players’ was invented, right then and there.”

When asked what advice he would offer to the NHL union in the wake of the current stalemate, Miller’s observations were very interesting.

“I don’t want to second-guess the leadership of the union. They’re in a tough situation.

“Certainly one of the things that could be done here would be to explain to the public and the fans how foolish a salary cap is.

“The whole notion that, in an economy like we have, you can have one element of the equation (player salaries) not ruled by the market, but by an artificial so-called ‘cap’ and have everything else be free enterprise — executive salaries, profits, ticket prices, television contracts — all dictated by the market, that’s an impossible situation and ought to be explained.

“A big program like that — which should have been started a long time ago — to explain to the public that, while the union is against caps, the only way it can really be discussed in a collective bargaining sense is to put everything on the table.

“If we are going to cap one thing, we are going to try to find a way to cap everything.

“You can’t have a situation where the only thing that is capped is workers’ salaries.”

Does Miller think the union could have done a better job of getting the message out?

“Yes, I do. Not only to the public, not only to the owners, not only to the fans, but to its own members.

“The whole purpose would be for the people to understand what this is about.

“When a union agrees to a cap — like the football union — the honest way to explain it to them (the membership) is to say, ‘Look, we have made this deal. We are going to cap your salaries. We are going to cap the team’s payroll, etc., and what this means is you are now going to be paid less money than if there were no union at all.

“Because, if there were no union at all, the football owners, for example, could not get together and cap salaries. It would be in violation of antitrust law.”

Miller identified one loophole that can be used to circumvent the antitrust regulations.

“The only way you get by — when you’re covered by antitrust law, like football is — with an arrangement like that, is to take advantage of what is called the ‘labor exemption.’

“With that, the antitrust restrictions do not apply to an agreement made by a union and an employer.

“So, when a union agrees to a cap, it has to be truthful and say to its members — which is impossible — ‘Members, we want you to support this union, we want you to pay dues, we want you to be loyal to the union, but we have to tell you that what we have done is made an agreement — which we are asking you to ratify — under which you will be paid less salary than if the union disappeared tomorrow.’ “

I came away from my conversation with this true giant in the field of sports labor relations with a much greater understanding of the ownership-player dynamic in the NHL dispute.

It made me wonder where matters would be if the league’s owners were sitting across the table negotiating with Miller.