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Sunday, January 6, 2013

Winning the Hockey Lockout

As I write, a tentative settlement to the hockey lockout has been reached after a marathon negotiating session lasting until near sunrise Sunday morning in New York.  But forget the terms of the deal; watch out for the writing.  A final written agreement and related "side agreements" have likely been drafted but need to be finalized, and that could be interesting given the intellectual competitiveness of the lawyers which has bred mistrust between the sides.

To their credit, both parties have cautioned an eager hockey fan base that the settlement is tentative.  It not only requires ratification by both sides (pretty much a given) but also needs finalized written agreements.  Each of those agreements can hold up "finalization." And note the plural. Large deals always have multiple side agreements.  Trust me, as a former corporate transactional "deal" lawyer, comprehensive transactions have several major aspects and each requires a separate agreement, with a "master agreement" tying in everything to "close the deal."

The problem here is that the National Hockey League -- the management side in this dispute -- showed its willingness to pull a "fast one" with regards to language on the concept of "hockey related revenue."  The players' union -- the labor side here -- recognized that and is now extra vigilant (as it always should be) on the gamesmanship.  There are plenty of untrustworthy lawyers who pride themselves on "slipping in something" in order to "win" the deal.  These lawyers seek to exploit the opposing lawyers' goodnaturedness, inherent honesty, trust, inexperience or raw physical fatigue.  Aside from lawyers who engage in outright criminality or quasi-criminality (that which can't readily be proven and which I consider even worse because the coverup and deception is taken to a new level and involves an additional step), these other attorneys who practice non-criminal deception and blatant lying are a pox on the legal profession.  They engender distrust between business parties in what can and often should be a collaborative, symbiotic process.  (Arguably, it's also bad for business, except that the legal profession is perhaps the rarest profession where bad or antisocial character becomes a desired character trait).

Now, could this deal have been reached sooner?  Absolutely.  The problem that 99.9% of observers fail to realize is that there are three perspectives: those of the league (management), the players (labor, or the union), and everyone else -- and in this negotiation, only the perspectives of labor and management really matter.  The outsiders have the view that a "middle ground" can be reached; indeed, this was likely the philosophy of federal mediator Scot Beckenbrough.  Outsiders think differently from management and labor, because they are thinking of how a deal can be done, whereas management and labor want "the best deal."  Often, getting that "best deal" means pushing things to the brink and being willing to "walk away" and destroy a deal or a hockey season.  This difference in perspectives illustrates why virtually the entire hockey world was confused and frustrated over the length of this negotiation and lockout.

Eric Dixon is a corporate and investigative lawyer who was admitted to practice in New York in 1995 and New Jersey in 1996.  Mr. Dixon is a 1994 graduate of Yale Law School.  

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