Why 'make whole' makes no sense

Let’s start with a couple of undisputed facts. First, the NHL owners made the players whole (contractually) per their contracts every year under the recently expired CBA agreement. Second, the owners have currently been making the players whole under their contracts for the past month (by not paying them anything). Also, there is no reasonable reason to presume that the owners won’t make the players whole (again – contractually) under any new CBA agreement, regardless of what the terms are. Let me explain…

Article 18 of the Standard Players Contract (SPC) (which was the basis for all current player contracts) states (in part): “The Club and the Player … promise and agree to be legally bound … by and Collective Bargaining Agreement that has been or may be entered into… and by all of the terms and provisions thereof… This SPC is entered into subject to the CBA… and any provisions of this SPC inconsistent with such CBA are superseded by the provisions of the CBA.”

Hence, every player contract is subject, and subordinate, to any current CBA. And, under the terms of their contracts - as superseded by the HRR revenue split [related] provisions of the CBA, each player received exactly what he was due each year under the previous CBA. It is important to note that this amount of salary received was never equal exactly to the face value salary of any players contract for any given year.

Regarding the second ‘fact’ above, while it is true that the players’ contracts are valid without (or outside of) a CBA, the salary provisions are essentially meaningless without a CBA. The players’ face value salary within the contract is based on an 82-game regular season, and is pro-rated if the player plays in fewer games (aside from special provisions for injuries and some other special situations). Regular season games occur only if there is a CBA in place; therefore, the salary provision basically has no meaning without a CBA.

The point here is that the players are ‘made whole’, per their contract language, in accordance with the terms of whatever CBA is in place when they play regular-season games. The ‘make whole’ that the players are [apparently] looking for is that of face value of their contracts. The problem with this approach is that, as pointed out above, there is really no reasonable justification for a player to have understood or assumed that he would receive or be due the face value of his contract in any year of that contract. In addition, every player who signed a contract that extended beyond the life of the previous CBA knew, or should have known, that the CBA terms that affected the amount of salary that would ‘make him whole’ contractually for any given year was likely to change with a new CBA. In addition, the precedence of the institution of the previous CBA demonstrated that a significant drop in their due salary was a realistic possibility with a new CBA.

To sum it up, there is no reason contractually for any player to be expected to be ‘made whole’ to the face value of his contract going forward. I think that this is why the NHL’s original ‘make whole’ proposal was structured the way it was – with the make whole dollars coming out of the players’ share. Yes it was an asshole way to approach it; but it was also to send a message that the owners were under no legal obligation to do so out of their money. And, from that standpoint, that any amounts that the owners subsequently may agree to contribute to the players’ view of being made whole were a ‘concession’ (using the players’ construing of the word with respect to any reduction from 57% of HRR) to the players on the part of the owners.

So what we are left with are ethical questions: Is it ethically correct for the players to expect/demand that they receive the face value of their contracts going forward? And, are the owners ethically due to honor those expectations/demands. I, for one, am of the opinion that the contract language and understanding should be the guiding principle here – and therefore the answer is an emphatic “no”. I don’t agree that an immediate reduction in salary to 50% of revenues, without a payback of some sort on existing contracts, is fair. But, I also don’t see where expecting a 100% payback on contract face value is fair either.

The opinions posted here are not those of Hockey Wilderness

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