Any momentum gained from a long night of negotiations between the NHL and the players' association seemed to have been lost Thursday when the sides remained mostly apart.
A meeting that Commissioner Gary Bettman said would begin at 10 a.m. EST didn't start until several hours later, and then ended quickly.
That one hour of talks centered on the reporting of hockey-related revenues by teams, and both sides signing off on the figures at the end of the fiscal year. The problem was resolved.
The key issues that are still threatening the hockey season weren't addressed then, but a small group of players and other union staff returned to the NHL office shortly before 6 p.m., to hold another meeting regarding the contentious pension plan.
Union head Donald Fehr didn't take part in either of the two sessions Thursday and it wasn't known if a full bargaining meeting would take place Thursday night.
The players' association held a conference call at 5 p.m. to discuss starting another vote among union membership that would give the executive board the power to invoke a disclaimer of interest and dissolve the union.
Members gave overwhelmingly approval last month, but the union declined to disclaim before a self-imposed deadline Wednesday night. It wasn't immediately known when a new authorization would expire. Players are expected to have 48 hours to vote, as opposed to the five days they were given the first time.
With the lockout in its 110th day, both sides understand the urgency to save a shortened season. They have several key issues to work out — pensions and salary cap limits, among them.
Bettman has said a deal needs to be in place by next week so a 48-game season can begin Jan. 19. All games through Jan. 14 along with the All-Star game have been canceled, claiming more than 50 percent of the original schedule.
The sides met in small groups throughout the day Wednesday. They held a full bargaining session with a federal mediator at night that lasted nearly five hours and ended about 1 a.m. Thursday.
The biggest detail to emerge was that Fehr remained as union executive director after players passed on their first chance to declare a disclaimer that would turn the union into a trade association. The disclaimer would allow individual players to file antitrust lawsuits against the NHL.
Fehr wouldn't address the issue Wednesday, calling it an "internal matter," but added that the players were keeping all options open.
"The word disclaimer has yet to be uttered to us by the players' association," Bettman said Wednesday. "It's not that it gets filed anywhere with a court or the NLRB. When you disclaim interest as a union, you notify the other side. We have not been notified and it's never been discussed, so there has been no disclaimer."
It was believed the union wouldn't take action Wednesday if it saw progress being made. Neither side would characterize the talks or say if there was any movement toward common ground.
"There's been some progress but we're still apart on a number of issues," Bettman said. "As long as the process continues I am hopeful."
In a related move, the NHLPA filed a motion in federal court in New York on Thursday seeking to dismiss the league's suit to have the lockout declared legal. The NHL sued the union in mid-December, figuring the players were about to submit their own complaint against the league and possibly break up their union to gain an upper hand.
But the union argued that the NHL is using this suit "to force the players to remain in a union. Not only is it virtually unheard of for an employer to insist on the unionization of its employees, it is also directly contradicted by the rights guaranteed to employees under ... the National Labor Relations Act."
The court scheduled a status conference for the sides on Monday morning.
That still gives them time to get back to the table to try to reach a deal. There won't be one, however, if they don't resolve the differences regarding the players' pension.
Bettman called the pension plan a "very complicated issue."
"The number of variables and the number of issues that have to be addressed by people who carry the title actuary or pension lawyer are pretty numerous and it's pretty easy to get off track," Bettman said. "That is something we understand is important to the players."
The union's proposal Wednesday makes four offers between the sides since the NHL restarted negotiations Thursday with a proposal. The league presented the players with a counteroffer Tuesday night in response to one the union made Monday.
Fehr believed an agreement on a players-funded pension had been reached before talks blew up in early December. That apparently wasn't the case, or the NHL has changed its offer regarding the pension in exchange for agreeing to other things the union wanted.
The salary-cap number for the second year of the deal — the 2013-14 season — hasn't been established, and it is another point of contention. The league is pushing for a $60 million cap, while the union wants it to be $65 million.
In return for the higher cap number players would be willing to forgo a cap on escrow.
"We talk about lots of things and we even had some philosophical discussions about why particular issues were important to each of us," Bettman said. "That is part of the process."
The NHL proposed in its first offer Thursday that pension contributions come out of the players' share of revenues, and $50 million of the league's make-whole payment of $300 million will be allocated and set aside to fund potential underfunding liabilities of the plan at the end of the collective bargaining agreement.
Last month, the NHL agreed to raise its make-whole offer of deferred payments from $211 million to $300 million as part of a proposed package that required the union to agree on three nonnegotiable points. Instead, the union accepted the raise in funds, but then made counterproposals on the issues the league stated had no wiggle room.
"As you might expect, the differences between us relate to the core economic issues which don't involve the share," Fehr said of hockey-related revenue, which likely will be split 50-50.
The NHL is the only North American professional sports league to cancel a season because of a labor dispute, losing the 2004-05 campaign to a lockout. A 48-game season was played in 1995 after a lockout stretched into January.
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