McKenna: Eichel Saga Largely Due To NHLPA’s Failure During CBA Negotiations

By: Mike McKenna

One thing has become apparent as the Jack Eichel saga drags on in Buffalo: Players and the NHL Players’ Association missed the mark when negotiating access to medical care in the current Collective Bargaining Agreement.

So much of the focus in negotiating a CBA is on the money. It’s also about making sure players are properly taken care of off and on the ice. And right now, in my opinion, the system is broken.

Eichel has a herniated disc in his neck – the only part of this that is undisputed. Sabres team doctors would like to perform an anterior cervical discectomy with fusion (ACDF). When Eichel sought a second medical opinion, his doctor recommended an artificial disc replacement surgery, which has no medical precedent for an active professional hockey player seeking to return to body contact on the ice.

Here’s the issue: NHL teams have the ultimate say in a player’s medical care. That was reaffirmed last July when the CBA was up for negotiation again. Yes, players have the right to a second medical opinion. That reminder is literally posted in every NHL locker room for players to see.

If that second opinion runs counter to the team’s physician, a “third physician expert” may attempt to resolve the dispute by providing an opinion or recommendation on diagnosis and/or course of treatment.

But even that is window dressing because the ultimate decision, the final say, belongs to the team physician.

Here is the critical language from Section 37 in the Memorandum of Understanding (MOU) between the NHL and NHLPA from July 2020:

“A Player is entitled to obtain a second medical opinion from a physician(s) of his choice who is not on the Second Medical Opinion List and has not received advance approval from the Club as set out in Subsection 34.4(c) … The costs of such opinion shall be borne by the Player …  The Club Physician shall determine the diagnosis or course of treatment (including the timing thereof) after considering any report or other records received from the Player’s physician and after giving due consideration to their recommendations.”

In other words, the NHL is telling its players: Go ahead and seek out a second opinion … just don’t expect it to matter. Regardless of what the second or third opinion might be, the team’s physician has the ultimate say.

Does this seem unfair to players? Absolutely. It’s not just about getting a player healthy so he can perform at an elite level on the ice. The player and team are aligned on that. But it’s also about their quality of life down the road, which is where the team and player path may diverge. Imagine having a neck injury serious enough to require surgery – and your team is trying to force an operation that you don’t want to have.

That’s an impossible pill to swallow.

The NHL’s likely counter to that would be that the Sabres still owe Eichel $50 million over the next five seasons. He is their investment, among the largest assets in a $400 million franchise. They would have to feel like if it’s their money, it’s their call. And that the Sabres would want to be comfortable with the entire process, including the probable success of the surgery, the projected recovery time and the likelihood of subsequent injury.

So, who is the bad guy here?

Collective bargaining agreements are just that: agreements. Both sides have to sign on the dotted line. The NHL, and more importantly, the NHLPA, also deemed the current system satisfactory when this CBA was ratified last summer.

And that’s where I think the players got it wrong and hurt themselves in the long run. They either glossed over the section or simply didn’t care enough to make it a point of emphasis. For the great majority of players, their only concern is the dollars and cents. Revenue sharing and escrow. Making the most amount of money possible during their NHL careers.

But it’s what comes after hockey that really matters. The vast majority of players are out of the league well before they’re 40-years-old and have an entire life ahead of them. To be saddled with poor medical decisions dictated by an employer is avoidable in a collectively bargained work environment.

Maybe the players pushed hard and came up short. Maybe the owners simply wouldn’t budge. I’d have to imagine it would be an absolute dog fight to wrestle final medical control away from owners, which would require significant and uncomfortable concessions in other areas in the negotiation.

But I can’t remember ever hearing about the player’s right to preferred medical care as a core issue during negotiations. Only now has it become a bitter point of emphasis. Robin Lehner took to Twitter to defend his former captain – and others have now echoed his sentiment behind closed doors. 

Players are angry. They want to control their own medical destiny. Will this Eichel saga be a rallying cry for future negotiations or long forgotten by 2027?

Only time will tell if players have the gumption to fight for a better solution for medical care when this CBA expires in six or seven years. Until then, they’re stuck with it – and they only have themselves to blame.