Devils in the Details- 2/21/12: Nash for Kessel Edition

Donald Fehr is the Executive Director of the NHL Players Association.

He was hired as counsel to the Major League Baseball PA in the late 70s and eventually became the E.D. at the MLBPA after Marvin Miller left the position around 1985. Miller had led the MLBPA (from irrelevance) in the ‘60s until ’83 or ’85, and then Fehr led it until just a few years ago when he joined the NHLPA. Miller had a union (steel) background before heading up the MLBPA. I see Fehr as Miller’s protege.

The Miller era and the early Fehr era is captured in Miller’s book, “A Whole Different Ball Game: the Sport and Business of Baseball” (early 90s) and the updated version from a few years ago. The ‘90s book is lengthy, but it’s a quick read and each chapter is pretty independent. You can read the first 4 to get a sense of it and then skip around by topic.

Miller can be caustic and unapologetic, but if you take his account as truthful (though one-sided), you’ll see that the baseball owners and Commissioners were a gang who fundamentally didn’t understand labor relations, labor disputes, or free agency. More to the point, the MLB owners and commissioners didn’t understand due process (regarding labor disputes and suspensions), the need for independent arbitrators (for any dispute between players and owners).

That being said: it’s clear from the linked article that Fehr understands the player suspension system implemented by the NHL operates without sufficient procedural or substantive safeguards. Shanahan is doing a decent job in most cases, but the substance of his reviews sometimes offers confusing and conflicting rulings because it’s not exactly clear what factors (head shots; injury on the play; penalized at the time; prior history; etc) have what weight. We’ve heard that Shanahan considers those factors, but every hit is addressed differently. This case-by-case examination makes it difficult to understand or predict how the process will work.

The specific problem addressed by the linked article is a procedural problem: a player who is fined or suspended has little recourse but to appeal to the NHL itself, in the person of Gary Bettman, rather than an impartial judge or independent arbitrator.

Shanahan attempts to play that role insofar as he publishes his rulings by video. Since he’s not independent, his rulings truly only tell one side of the story. Appealing Shanahan’s ruling to Bettman is silly; Bettman is his boss, regardless of whether Bettman is involved in the initial reviews of the play. It’s not really an appeals process.

It shouldn’t be hard to adjust the CBA to include recourse to a pool of mutually agreed-upon independent arbitrators to review suspensions and make a ruling in a timely fashion. The ruling could affirm the Shanaban, adjust it, or overrule it entirely. Writing the agreement could make the arbitrator’s ruling binding (and non-reviewable) as well.

That would insulate NHL executives like Bettman from being pressured by NHL owners/ the BOG to go soft on players.