As a fan, I find the NHL lockout disheartening; however, I appreciate the exposure it has provided at the minor hockey league level (CHL) and for my favorite team – the Allen Americans. 


I only started following hockey a few years ago (due to the Allen Americans) so have no grasp of the issues facing the league or the players.  Without information about all of the issues and the nuances involved for each issue, I have no way to gauge the true end game of the lockout negotiations.   


I don’t have enough information/facts so what I say herein is simply my gut feeling about the posturing/negotiations based upon what I have seen tweeted and written about the NHL lockout drama.  I would NEVER base a case on a gut feeling and would not take a position, in real life, without more information.  However, as an attorney (a litigator, negotiator and mediator) and fan of “people-watching” I find the NHL lockout a fascinating study in positioning/posturing/negotiating/strategy and what people could read into the negotiations. 


I see the lockout negotiations as normal (hard ball, but normal). 


I hate to admit that the fans are, in this negotiation, irrelevant.  I hate to admit that because I am just a fan and wish I mattered more or had some power/control over the negotiations/lock out but I do not. 


No matter how much fans bemoan the process, the upshot is that the owners/players are betting the hard core fans will be there whenever NHL hockey “re-starts” and that they will be able to grow hockey fans again.  It is a pretty safe bet in my opinion.  Numbers may take a little while to grow back but if they don’t, the product was not worth the investment to begin with.  Yes, the fan’s attendance and feelings drive the money but at the end of the day, my best guess is that the owners and players know they will rebuild the fan base.  People who like hockey and were going to go to NHL games anyway may “punish” the owners/players/teams for a couple of games but they are not going to stay away indefinitely – at least, that is what both sides of this process are betting.  Each side may try to make it look like they care about the fans and are thinking about the fans in the negotiation process (and they do at an existential level) but the fans are really not a “bargaining chip” or tool for either side of the negotiations. 


From my unscientific observations, the Players’ representatives seem to be trying to use the fans as part of the negotiating process more than the Owners’ representatives (e.g., “we will play during the negotiations”, “we want to play for you”, “think about the fans”, etc.).  If my observations are accurate, I don’t see the upside for the Players.  If the fans are not really a source of leverage, why appear to want to use them? Keep the fans engaged via the players but don’t make it “feel” as if you are trying to use them as a source of leverage in the negotiations.  It gives a “feel” of weakness, in my opinion.   


Consider the backdrop: there are millions (maybe billions?) of dollars at stake in these negotiations.  Certainly this amount of money impacts the local economy, yet, I have not seen much main stream media coverage about the NHL lockout.  Think about it – when airlines strike there is main stream media coverage; when teachers strike there is main stream media coverage; a football strike and there is main stream media coverage.  Yet, the NHL lockout, at least from what I have seen, is not a main stream media coverage item of any significance.  I admit I could be wrong, maybe I just don’t watch the right channels at the right times.   However, if the NHL lockout does not generate main stream media coverage or much main stream media coverage, the fans are definitely not part of the leverage for negotiations.


The posturing I have seen makes me “feel” that the players are going to cave.  If not, the Players’ leaders need to do a better job of posturing, in my opinion.  Allowing a “feel” of something, even if that “feel” is inaccurate can be deadly to negotiations.  It allows the other side to think that “if I do this” or “if I hold out” I can break the other side.  If that is NOT accurate, then the posture that was taken or the “feel” that was created is counter-productive. 


First, there are a lot more players than owners.  To succeed in a negotiation, everyone needs to be on the same page.  As a general concept, the more people involved, the harder it is to “hold the line” and stay on the same page.  Once the line starts cracking and they start giving their rep different signals, the wall is lost.  As such, as a general rule, it would seem harder for the Players to maintain consistency in position than owners simply because there are more of them.  As such, the owners logically may have a position of strength simply by being fewer in number.


Second, the players offered to play without a new CBA (or some similar offer).  They did this under the guise of making the offer “for the fans” so the fans would not be hurt by the dispute.  See above – in reality the fans are irrelevant to the negotiations.  As such, if I am an Owner, I think what this means is that the Players need the money.  The Owners refused and said they need a new deal to make a season happen.  This made fans mad but from a negotiating standpoint, it was a logical and strong position to take.  As such, the Players offer to play, possibly to “stay in good with the fans” was “nice” but was not really a good negotiating tactic (in my opinion, admittedly without enough information), as it could be viewed by the Owners as a sign of weakness with no real benefit or leverage creation in the negotiations. “If the campaign is protracted the sources of the State will not be equal to the strain” – Sun Tzu – “Art of War”.


Third, the Owners have been relatively consistent (at least per what has been tweeted/written) in their position – they are willing to do a take it or leave it.  Nothing in their behavior or attitude (at least based on what has been tweeted/written) has made me think they won’t do just that.  They have said and acted in such a way that they are telegraphing – “we are prepared to lose a season to get what we want”. 


With such an opponent, one must then decide – are you likewise prepared to do the same to get what you want? The Players may be willing to do so but their posture (again via twitter/blogs/news reports – which is unscientific and unacceptable for anything other than an editorial) does not indicate it. 


As such, if the Players were willing to forego the season to get what they want – they should have, in my opinion, taken that clear and strong position to the Owners.  By NOT doing so, they may have entrenched the Owners further in the feel that the Owners have the stronger negotiating position.  From a negotiating standpoint, that is dangerous. 


Fourth, the Players come across as grasping for what they can get and moving the ball on what is really important to them.  Sure, if the Owners were willing to play that negotiation tactic, it might have some success; however, the Owners have been consistent that they are playing hard ball.  As such, in my opinion, one must play hard ball back.  When one side is clear that they are playing hard ball, doing anything but hard ball back weakens your position and entrenches the other side further into their “hard ball” position.


What is the ultimate goal?  What is really important? What is the must have and why?  What leverage do you have to get the must have?  If Owners say I will give you x if you do y, you don’t have x until you do y.  However, if you jump at x you have now told the other side x is important to you.  In negotiations before you jump at anything, decide your ultimate goals and then move your chess pieces into position to accomplish those goals.  “The general who wins the battle makes many calculations in his temple before the battle is fought.  The general who loses makes but few calculations beforehand.” – Sun Tzu “The Art of War”.


Anyway, I could be completely wrong on the underlying state of things BUT the way things come across through social media outlets leads me to the conclusion that the players are in the weaker negotiating position and will cave (assuming the owners are smart enough to let the players do it while saving face) before Christmas.  The posturing indicates the Owners would like a season but are willing to let it go to get what they want.  The Owners are telegraphing a position to the players (by offering y if you do x) that they are willing to engage in limited negotiations.  The Owners are also telegraphing to the players that if the Players want a season they better pick their main issue(s) and get a deal done on those because the Owners stand ready to cancel the season if a deal is not reached where they can play x (apparently 48) games. Due to my perception of weakness by the Players and my perception that the Owners are willing to engage in some, limited, negotiations/movement, I think there is a reasonable chance this resolves before Christmas.  If this is not really the status of things, maybe the players should have taken a firmer “posture” early on in the negotiations. Not surprisingly, sometimes “posturing” strength means a quicker end to things even without force (Thank Ronald Regan for that lesson).   


My editorial is simply because I find this whole process interesting -- these are real live high power/high stakes negotiations playing out before our eyes.  Both sides are making their own decisions and taking positions that continue the drama/posturing/negotiations.  Both sides stand to make gobs of money (the only question is how much of a “gob” each side gets) and that is the reason there is a lock out and why there are negotiations.  I am not mad at the owners or players – these are just negotiations.  The only people I feel for are those whose jobs are related to the NHL but are not in the NHL (e.g., sales staff, concession workers, parking attendants, office personnel, arena staff, security staff, janitorial staff, etc.).    


I hope my unscientific view of the posturing is accurate so the season can start soon!


--Special thanks to Kim Munson for taking the time to provide her experience and apply her knowledge to the limited information we, as fans and media, are given from the NHL labor dispute.  Kim is an established and successful trial attorney based in Allen, TX and I would encourage everyone to follower her on Twitter at @kjm111602