Global Athlete
Global Athlete

Episode · 5 months ago

Player Associations and Olympic/Paralympic Sport with Don Fehr


Just like the National Hockey League has the National Hockey League Players Association (NHLPA), some Olympic sports have unions that represent players within a specific league. However, there's no independent professional body representing athletes’ interest to the International Olympic Committee (IOC) or International Paralympic Committee (IPC). Don Fehr of the NHLPA shares the challenges athletes without organized representation face.

In this episode, we talk about…

  • Biggest differences between sport administrators like the NHL and the MLB vs. the IOC/IPC
  • Potential legal hurdles athletes face if they try to organize and stay home from the Games
  • Lessons from the MLBPA and other major player associations that have experienced success for athletes
  • Whether a sport must be a certain size before athletes can pursue collective bargaining
  • How Olympic/Paralympic athletes can take advantage of group identity
  • The disparity of anti-doping policies across athlete organizations
  • What role the US government might play in forcing the IOC to be less monopolistic
  • NHLPA’s position on athlete agreements and its negotiations with the IOC
  • How WADA’s anti-doping policy impacts NHL players

Memorable Quotes:

  • “The International Olympic Committee is in the entertainment business. It gets its revenue because fans, people want to watch the athletes do what they do. That's the only source of revenue.”
  • “Collective bargaining is not about reason, or justice or fairness or equity or what's appropriate. It's about leverage.”

Guest Bio:

Don Fehr is the Executive Director of the National Hockey League Players Association. Before joining the NHLPA, Fehr served as the executive director of the Major League Baseball Players Association from 1983 to 2009. He began work at the MLBPA in 1977 as General Counsel, working under Executive Director Marvin Miller who was credited with completely changing baseball by making the MLBPA one of the most powerful unions in the United States. In his first several decades leading players associations he was involved in numerous work stoppages, both strikes and lockouts, that have resulted in canceled seasons including in 1994 when baseball became the first sport in history to lose its postseason to a labor dispute.

Links to resources:

National Hockey League Players Association

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Welcome to the Global Athlete podcast,conversations about power, accountability and Athlete Rights in international sport. I'm Noah Haftan. In today's episode we are talking with Don fear, the Executive Director ofthe National Hockey League Players Association. Before joining the NHLPA, fear served asthe Executive Director of the Major League Baseball Players Association from Nineteen Eighty three totwo thousand and nine. He begin work at the MLBPA in one nineteen seventyseven as General Council, working under Executive Director Marvin Miller, who is creditedwith completely changing baseball by making the MLBPA one of the most powerful unions inthe United States. In fear several decades leading players associations. He has beeninvolved in numerous work stoppages, both strikes and lockouts, that have resulted incanceled seasons, including in nineteen ninety four, when baseball became the first sport inhistory to lose its postseason to a labor dispute. He is known asa fierce advocate for players and we're excited to have him on the podcast todiscuss players associations in the context of the IOC. We don't have a currentevents segment today, so let's get straight to my conversation with don fear.Dawn fear, welcome to the Global Athlete podcast. Glad to be with you. This is a podcast about power, accountability and Athlete Rights and International Sport, with a focus primarily on the IOC and the IPC, Wada and CASS. While some Olympic sports, like hockey, have unions that represent players in aspecific league, there's no independent professional body representing athletes interest to the IOC. So I want to start by looking at the big picture, and Iknow that there is currently some negotiation happening between the NHLPA and the IOC,and we can get to that later. But what do you see is thebiggest differences between sport administrators like the NHL...

...and the MLB, who are accountableand have to negotiate with players, versus those like the IOC, who donot regularly have to engage with or negotiate with players when they make decisions.The distinction is primarily legal. In the United States, both the Major LeagueBaseball Players Association and the National Hockey League Players Association are Unions organized and operatingunder American Labor Law and where that is the case, management, the owners, have the leagual obligation to negotiate in good faith with the Union and reachcollected bargaining agreements. And you can force them to negotiate, you can engagein strikes, they can also lock you out and and things like that.But it is a classic employer employee relationship under American law and, in hockey'scase, under Canadian law also, the distinction being that the branch of theinner pertainment industry that's involved happens to be professional team sports. The IOC issomething different. It is organized in Switzerland, it puts on the Games, ithas what I would call the the protection of Swiss law and because ofthe unique sort of social position it has been able to maintain, the IOCbasically has separate laws that are in effect in almost every jurisdiction. So,for example, in the United States there's something called the Amateur Sports Act,which governs the relationships between athletes and the governing bodies or the federations. Mostimportant, they are not employers. They don't hire anybody, they don't payanybody, they don't, in the ordinary course, have obligations to provide employeebenefits or pay social security. They're not covered by workers comp or any ofthat and, as a result, it's not so much that they are abovethe law it as so much as they exist outside of it. So thereis no actual formal body that you can...

...go with and say this is theemployer, you will negotiate with me. In addition to that, because theGames are so infrequent, once every four years, because each individual country,nationallympic committee or Country Federation for a particular sports sort of operates on its own, within the confines of its own jurisdiction, it becomes very, very difficult toorganize the athletes. What you would be talking about is essentially a socialmovement rather than a legal movement. Can you expand on that? Why couldyou not have, I mean the NHL operates, as you said, undertwo different legal structures in the US and Canada. Could you not have aninternational union of athletes that can bargain with the IOC that would operate maybe primarilyunder Swiss law? In theory you could, but there are a lot of issueswith it. To begin with, it is the ISOC's position and allthe athletes endorse this when they sign the athlete agreements. For the Games thatthe athletes are not employees. There is no employer employee relationship. That isthe definition of a union management agreement. It's not even that they're independent contractorsbecause they're not getting paid to go to the Games. They're just people whohappened to go and they are selected or not in the discretion of the CountryFederation and the National Olympic Committee that's involved. So it would take a whole separateseries of laws under which some thing different would take place. Now I'lljump ahead and ask the question which usually comes at the end of this lineof inquiry. What happens if, all...

...of a sudden the athletes decide justnot to go? Well, at that point what happens is the IOC hasa show for which it depends for revenue, but it doesn't have any performers,if you will, and I don't use the word performer in a majorative, since the International Olympic Committee is in the entertainment business. It gets revenuebecause fans, people want to watch the athletes do what they do. That'sthe only source of revenant. So a global athlete, you know, asyou know. You know headed by Rob Keiller. We're working on organizing thatsocial movement that you're talking about. Are there legal hurdles into if we ifwe were to say that the IOC is completely unresponsible to the demands of theathletes that we're trying to represent and we believe the only way to move forwardis to not show up at the Games? Are there legal hurdles that we're notseeing that would prevent us from trying to organize athletes into staying home fromthe Games? That would depend on each jurisdiction, so the law and Francemay be different than the law in the United States, than Japan, thenIndia, and so I'm not in a position to to comment on something likethat. It would be difficult, however, seems to me, for the IOCto do that, because they would have to be asserting somehow that theathletes were engaged in a restraint of trade, trying to create some sort of anapolisticbehavior, and they IOC takes the position that it is a legal monopoly, so it would be a bit tricky. So I know that you know theplayers were already employees, which is a huge difference between what we're seeingin Olympic sport. But what were the major factors that allowed the MLBPA.I'm thinking about this in relation to the... bodies in in track and field. We've had on the show Christian Taylor and Emma coober and, who startedthe athletics of Association, which is trying to be an independent voice for athletes. And Track and field there's a similar one headed by Matt Beyondi and swimmingand those organizations you know, because they're not employees, they're not unions,but they're trying to gain athlete power. So what are the lessons from this, the founding of the MLBPA and the other major players associations in this countrythat have allowed them to become as powerful as they are? What the baseballplayers did was to begin to get organized and begin to collectively bargain and gotsome relatively small victories. They were able legally to break the back of thereserve system in an arbitration case, taking advantage of language that the owners hadlong inserted into player contracts. At that point you essentially entered into a longseries of labor disputes which ended up in a strike or a lockout, andwhat that meant was that players had to be able to win if, ifyou will, by maintaining unity and outlasting ownership. Now, whenever you havea labor dispute in the business, to shut down management loses revenue. Managementin most industries potentially loses market share. They don't like that. That's nottrue in professional team sports. There is no other league that the fans aregoing to go watch and the players obviously lose salary and some of them havetheir jobs at risk. You know, are they going to be there whenthey come back? But unless they're willing to act collectively, you can't shutdown the business. You can't withstand a lockout designed to start the players out, and unless you can do that, you're not likely to get anywhere.Collective bargaining is not about reason or justice or fairness or equity or what's appropriate. It's about leverage. So one thing...

I think about often when I thinkabout my sport, was cross country skiing, is that there's just way, wayless revenue worldwide than there is in base fall. Does a sport haveto be of a certain size before it makes sense for athletes to pursue collectivebargaining and to pursue a larger revenue? Sir, I don't think so.I think it depends entirely on does the sport need the most elite athletes inin that particular discipline. So far, example, tennis consists in the ordinarycourse of a series of tournaments. There's no single employer. They go around. If you need the top twenty men in the top twenty women to havea credible tournament, then those groups have legitimacy. If Wimbledon is satisfied withplayers fifty through a hundred and they don't really care, you don't have alot of leverage unless you're going to go negotiate your own it may be thatthe tennis and the golf associations, which are an attempt to act collectively,organize, educate in the rest of it, but generally outside the labor laws becausethe athletes are not employees, maybe a model worth looking at. Now, having said that, and you'll have to check this and check the dates, but you know, essentially women's Pay Equity at tennis tournaments came about becauseBilly Jane King did two things. One was she insisted and was willing tomake a very loud, very long, very ugly public stink, and secondly, she had the backing of the other women athletes and the major tournaments wantedthem there. If they didn't care, it would have been a much tougherroad. So it seems like we come back over and over again to thedistinction between employees, athletes are employees of...

...the teams, and athletes who arenot, and that's a diseasion that I haven't thought that much about. Thereare, of course, in the Olympic Realm, both team sports where theathletes could potentially be employees, and then there are lots and lots of individualsports. But you do see, as you point out, success in bothrealms, both in tennis and golf and then also, of course, inteam sports in this country. Do you think that the I mean in myhearing correctly, that maybe the fight should be different for individual sport athletes versusteam sport athletes? Well, it certainly has to be different, because you'renot operating within the same legal structures and if you are dealing with a globalindustry or even a transoceanic industry, then you're dealing with at least several differentjurisdictions and the laws of several different places in terms of trying to make itall work. What you have to do first of all, is get agood understanding of what the economics are. You know, if you want toget paid a hundred dollars but it's own the revenue produced is only sixty dollars, doesn't matter how good your organization is. All right. Second thing is youhave to educate the athletes and then be in a position to describe tothem in a fair amount of detail why it would be better if you coulddo a or B or see and why they should be willing to fight forthat and sacrifice for that in some fashion or another. And then only stepthree is when you get to the point of when you execute. However,your point you made before is is really well taken. The team sports dominatethe revenue picture for the most part, with Golf and tennis being the biggestexceptions. And there are not very many golf and tennis players worldwide that matter. There are a lot more soccer players and baseball players and so on.Then there are Golfin and golfers and tennis players that matter. So does thatmean that is that? Is that a...

...result of collective barting? Is ita result of just the fact that you, when you have success in a teamsport. It success for more than one athlete. I guess we are. What why? I'll let you in on a secret. I'll let youin on a secret. Most people think team sports sell drama or they sellcompetitiveness or they sell athletic excellence. All those things are true, but they'remostly beside the point. What the team sports sell is grow up identification ona repeated basis over a season leading for a championship. That's why the localownership group, and this is true worldwide, is likely to say you're at inColorado, come root for your Denver Broncos. There are only yours inthe sense that you buy a ticket or watch them on TV. Otherwise Ihave nothing to do with you. And that creates the opportunity for revenue atmuch larger scales. As you cause, you are having many, many,many more contests in a repeated way and you get the fan affinity. Thisworks for Inter collegiate sports to it's the same thing. That is a lotharder when you get to golf, for tennis, because you're dealing with individualsand so you need something special. That's why the majors, the four orfive in each sport, tend to matter more than the other ones. Dothe Olympics work, by the way, only because of group identification. Youhave Olympic medals in the overwhelming majoritarity of sports that are not independently revenue producing. So how can athletes? Aren't coming back to kind of the same pointhere, but how can athletes use that, because the Olympics are clearly very muchrevidue producing and the alt the o these are not getting, you know, anywhere near the share of revenue that they're getting in professional leagues, whichare taking advantage of the same group identity...'re talking about. So is itpossible for up needs to monetize the group identity of the nationalism of the Olympicsany word, you know, to to make a living? They either needthey need to do one of two things. Either focus on the living completely outsideof the Olympic framework, because most competitions are held in finance by promotersand they're selling them on TV. And whether you're an employeer an independent contractor, it's either an employment relationship or a business relationship that's involved. At thatpoint, for the Olympics to work and to improve the lot they are,you've got to change the mindset of the IOC and and the way they arelooked at. And maybe that's accomplished through social pressure, maybe that's accomplished throughpressure on the sponsors, maybe that's accomplished through threats or suggestions that people won'tshow up for the Games. But those will not be believed until it happens. That's the problem. And the IOC is used to dealing essentially with governmentsand as often as not with authoritarian governments. I've been working with us, theUS government. I worked heavily on the Rachenkov antidoping act, and oneof the questions it's come up when it comes to the reform of water andholding funding at from water is, you know, comes back to the IOCand leverage over the IRAC. And so you talked about how the IOC iswork, used to working with governments. Is there, I mean even throughlegislation, is there a way that the US government could assertain leverage over theIOC to force it to be less monopolistic and to share revenue? Maybe notover the IOC but over the US OPC? Of course it could. You simplysay that you pass an amendment to the Amateur Sports Act, you definethe athletes as employees and you give them collect the bargaining rights. Now,saying that it's easy to do means it's...

...easy to write the words down onpaper. Getting that passed by the Congress and signed by the president would bea very difficult undertaking, it seems to me, for all kinds of politicalreasons. But that's not going to solve it outside the United States. Thatwill solve it for American athletes. Okay, there's two more big topics I wantto talk about. One is why antidoping should be the subject of collectivebargeting, and this of course, came up when we were promoting the RadchenkovAct, because Wad as big line was that, you know, you're ignoringmost athletes of the US by not including the professional leagues and not including theNCAA. And there's people who, you know, believe that the rules inthe NHL or Major League Baseball, certainly the NFL, are soft on steroiduse, on performance nancing substances. And yet those of us who are focusedon water are totally disenfranchised with with the world antidope system, and athletes arenot bought into this. They don't believe in the system. They don't believethat consequences are being dolled out for entities, you know, like Russia, thatare instituted, you know, instituting wide scale, systematic doping. Socan you talk about why antidoping should be in the realm of collective bargaining?Let's start there. Truly pretty simple. Whatever limitations you're going to have asa result of being a professional athlete are a term in condition of employment.You have the right to negotiate those you have the right to a quick systemto resolve disputes. You have the right to either make proposals. We wantthis and this and this, or we don't want this or that or theother thing, and the employees and the managements know what works in their particularsport and what doesn't work in their particular sport. Once you get in tothe generalized realm of Anti doping, you...

...very quickly morph from law to scienceto what I call philosophy, and I'll just give you an example, twoexamples of the the kind of thing which is at play. They are deliberatelyat the edge in order to make a point. But let's say you havetwo identical twins with one exception Joe produces fifteen percent more testosterone than SAM does. Otherwise they are identical. So if they train, work out and doeverything identically, Sam can never match Joe's performance. Can't happen. You have, by definition, no level playing field. That therefore, if you want tolevel a playing field, what you have to do is administer testosterone sothat he has the equivalent of what his brother has. Naturally, that willnot pass muster with any anti doping agency. Ever, why you get? Youget shoulder shrugs. To take a completely ridiculous example. If few havean NBA player who seven feet and two hundred and sixty five pounds and youhappen to be, you know, six four and two hundred, but bysome sort of of genetic crisper manipulation or with medications or with whatever, youcan turn into the clone of the other player on the court, you haveleveled the playing field. So it gets you into very difficult questions and allI can say is my experience tells me that the athletes and the managements inthe sport are much, much, much better able to figure out how thatsport should work. You know then others...

...are. The other thing is youget into the area of what the world is performance enhancing and what is viewis, I start with the proposition that it is and then you have tosort of proof to me that it that it is. I mean the marijuana, as you know, is becoming legal all over the United States and andmost of the Western world, and the only performance which is enhanced from marijuana, so far as I can tell, is eating carbohydrates. But there isI just to push on this a little bit more. There's kind of abroader issue of that. Like you know, there's a huge point or a hugeposition that's pushed, including, I think, by the players intertainly bythe League's that that sport is different from other industries because it plays a broaderrole in society. As you said, it's important for for purposes of nationalismand for for unity or, some portcases, division. Of course, when theintry, when the owners and the players are negotiating anti doping policy,nobody's looking out for kind of the broader societal interests. Is there something that'smissed or, you know, is the agreement that's reached? Potentially? Youknow, maybe the agreement is that, up to a certain levels, takingperformance and drugs is legal. But then that tells young people that taking drugsis fine as long as you don't do it excess. But then, ofcourse some drugs are very addictive and you're going to end up with potentially highermedical cost to society. I can you know, just thinking about the hypothetical, is there something that's missed when any so entities, any substance that istaken to excess is going to give you a problem? Aspirin, Kyl andall you know, alcohol, cigarettes, caffeine, whatever it is. Youstart with that. Secondly, they're always limits and boundaries and I think athleteshave the same kind of obligation to be good public citizens that everyone else does. I'm not sure they have a a...

...greater obligation. So you don't feellike athletes have a greater responsibility than others because of their public profile. Ithink that's something that that I think about. Let it. Let me answer itthis way. I have been answering this as an advocate. If youask me personally, what, how what I advise an athlete to behave onan individual basis? I'll give you a classic example out of early in mycareer. I would yell, screamhaller plead urge cauldjole prod and whatever else Icould do to make sure he or she did not use smoky smokes tobacco,because it's dangerous, it's bad. We don't want kids seeing it. Allthose kinds of things all right. At the same time, if you canbuy it at the local CVS or seven eleven, I don't think it myjob, or the unions job or management's job to tell you you can't.So you have to differentiate between the two. That makes sense. One thing I'vebeen thinking about well and the so the IOC talks about. You know, the reason that they don't share more revenue with athletes is because they promotesport worldwide. They have the IOC refugee team. They put on the Gamesthat are supposed to to, you know, be doing good in the communities wherethe Games are held. As an advocate for the players at the NHL, you are not concerned with youth hockey in the US or Canada, andyet youth hockey thrives in this country and in Canada. Why is it thatthe IOC what? Why is it that that works, that youth hockey isdriving in this country when the you know, the League and the players are notfocused on promotion of youth hockey, in the same way that the IOCsays that ninety percent of its revenue is redistributed in the majority of that goesinto the promotion of sport worldwide. Well,...

I'm not sure what the promotion ofsport means. I'm not sure what the money that goes to some ofthe Authority are country National Olympic committees is used for, but I think thepoint can be halps be better be made this way. If General Motor saysI'm going to keep everybody salaries artificially low because uz I'm doing good work,I'm doing charitable work over here, the employees can say no, pay methe money. If I want to give money to chararity or make appearance orteach kids, that's what I'll do. That's sort of the the legal dynamicthat's involved. In answer to your specific question, though, there are legaland social differences between the models outside of North America and within North America.Within North American, for this purpose, I mean the US and Canada.For the most part, the expectation is that youth sports, Amateur Sports,collegiate sports and so on will be independently funded. They will raise money ontheir own. It will be charity, it will be volunteers, it willbe whatever it is. In Europe, the sports are generally part of theOlympic program and they're funding from the central government is determined by how well youdo to a certain extent in the Olympic Games and how much revenue is raisedand so on. So you do have to pay attention to that. Interms of the IOC statements as to what it does with, you know,with the money, I guess I have two answers, one of which ismerely saying that I'm doing this and this is better than doing something else is, you know, so much hot air far as I'm concerned. Second thingis saying that we're going to do public good is not inconsistent with saying we'regoing to pay the people who generate the income and appropriate compensation leave. Thoseare not inconsistent. That makes sense.

I want to finish by talking aboutkind of the leverage that professional athletes who could choose to compete in the Olympicsdo have over the IOC model and in particular, I know that there's sensitivenegotiations happening right now about the coming Beijing Olympics in two thousand and twenty twoand whether the NHL, whether NHL players will be participating in the Olympics.But, and I was actually surprised to learn earlier today from Jonathan that thatthe NHL and NHLPA are almost on the same side of these negotiations in relationto the IOC. I didn't know that the NHL PA had any relationship withthe IOC or had any leverage over the IOC. So so can you talkabout why? What is the players position in regard to the Olympics and whatis the NHL's position? And and where does your leverage come from the overthe IOC? And what are the negotiations about? Other negotiations about? Whatwill the terms of the agreement be? And you have to remember that NHLHockey is in a fundamentally different position, I believe, than any other sportin the world. It is the only one which is asked to shut thebusiness down for a period of time, give up your own revenue and gosomewhere else so other people can earn money based on watching the players play.In that context, NHL can't even get much publicity out of it because thoserights are controlled by the IOC and the broadcasters. So that's a tension whichdoesn't really exist in basketball. It's offseason, the NFL doesn't go. Soccer SendsTwenty three and under. Cricket isn't in. Rugby is sort of ina little bit with, you know, rugby sevens and and and so on. Asse rules. Football is not in. Japanese baseball is not in. Yousee the the the thrust. Golf...

...and tennis were not there until veryrecently, and you can make the argument that essentially the revenue producing sports don'tneed the Olympic championship in the same way that an athlete in canoeing does,for example. It doesn't convey quite the same thing. Having said that,the players want to play, they want to play for their country and wehave members in the NHL from, I believe at the moment, sixteen orseventeen different countries. Sometimes it's a little more, sometimes it's a little less. Most of them are European. Obviously just the US and Canada are fromthe Americas, and so when we negotiate it's the terms. How they goingto get there? When are they going to get back? What happens toguests, is their insurance for injury, all of that kind of thing.From the NHL standpoint, they want marketing rights, they want publicity rights theextent they can get them, and they want to make sure that the playersare are covered and there's no fight. If they come back and can't playbecause of an injury that occurred at the Games. That hurts the league andthe individual team and it also hurts all the other players who don't go ifyour star player can't play for the rest of the season. So is theouthlet agreement that the that an NHL player signs when they go to, youknow, when they go to Beijing? Is that different than the authlet agreementthat my former teammates, the cross country skiers, will sign? Probably not. But there is an overarching agreement between the NHL, the NHLPA, doubleihf and usually the IOC. And so what is the relationship between you?You mentioned that both the NHL and the NHLPA have risk involved in going tothe Games, but that the athletes want to go. So what is theNHL's position in these negotiations? Are they working with you in in relation tothe IRAC and it's a collaborative effort.

That's about all I can say aboutGotcha. Yeah, we we are not. You know, we don't see eyedeyed with them on all points, but by and large we come froma place of shared interest. And your athletes would be subject to water rulesat the Games, yes, but that doesn't mean that's something that happens therewould adversely affect their ability to play in the NHL if that wasn't a violationof NHL rule. Is there any do you have any negotiating power with waterover those? The terms of antidoping at the Games, I'm not really know. You know, but what it doesn't doesn't apply to NHL players except duringthe period of the game. So in this country the US Anti Doping Agencywould not be out of competition testing with your athletes before the oox. Gotcha, that's not true in any of the team sports. Will leave it there. Don Fear is the executive director of the National Hockey League Players Association.That's it for this episode of the Global Athlete podcast. As always, getin touch with any questions or comments. You can reach us at hello atGlobal Athlete Dot Org or at Global Athlete HQ on twitter and Instagram. Ifyou enjoy these conversations. Leave us a rating and review on Apple podcast orwherever you listen. It helps new listeners find us. Our team includes Breshoff, Rob Keeler and Julia Barton. I'm Noah Hoffman. SEE YOU NEXTTIME.

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