Seravalli: Clock is ticking on Don Fehr’s reign as NHLPA executive director
TORONTO — For the first time in three years, the NHL Players’ Association and certified player agents gathered here on Wednesday for their annual one-day meeting.
There was a sense of normalcy – finally, on the back-end of the pandemic – but also a hint of potential drama brewing in the room.
The question and answer session with NHLPA executive director Donald Fehr was expected to be the main event. Agents wanted answers to tough questions about the Arizona Coyotes’ arena fiasco, projected revenues, the Kyle Beach investigation – and most importantly, the 73-year-old Fehr’s future at the helm.
One agent even purportedly went as far as sending a manifesto to Fehr and the NHLPA ahead of the meeting to advise them of questions he’d like answered.
Yet, Wednesday’s meeting was drama free.
Because the main event never happened.
According to agents in the room, Fehr never fielded questions, like he has after each of the meetings during his 11-year tenure – as each executive director did that came before him, too.
Agents were instead told that Fehr was unavailable for questions and the meeting was abruptly adjourned.
That was the latest in a series of signals indicating the significant pressure Fehr is facing, from multiple constituencies now, to get moving on an exit strategy.
It was, after all, way back in 2014 that Fehr first mentioned publicly that a ‘succession plan’ would be in order after navigating the union’s third lockout in 2012-13, which saw the players’ share of revenue reduced from 56 to 50 percent.
It’s 2022. Fehr turns 74 in July. He guided the players through the pandemic with an extension to the Collective Bargaining Agreement that includes a flat salary cap for the foreseeable future and a $1 billion debt to owners, work that can be seen alternatively as Fehr’s most brilliant or most brutal.
This agreement carries through at least the 2025-26 season, shortly after which Fehr will turn 78.
The pressure Fehr is facing is not ageism, but rather through the perceived lack of value he provides to the union outside of the crucial war-time labor negotiating period. Next to no new meaningful revenue has been generated by the NHLPA during Fehr’s tenure. Plus, players have privately wondered about what they perceive is a too chummy relationship between Fehr, commissioner Gary Bettman and the NHL.
So, Fehr was asked point blank by Daily Faceoff on Wednesday: Have you been working on a succession plan?
Fehr responded: “If I was, I wouldn’t tell you.”
The follow-up question: Do you feel developing a plan is important?
Fehr’s response: “I’m not going to comment on an internal matter like that at all. When and if an announcement is made, or a decision is made, won’t be soon.”
Let that last clause from Fehr ruminate for a moment.
Won’t. Be. Soon.
Fehr knew the question was coming. He has heard the rumblings. He read the stories about his alleged fumbling of information pertaining to Kyle Beach, the speculation about his job security back in November.
The well-spoken attorney uttered words of a man who is confident he has absolute power over the NHL Players’ Association. Some close to Fehr think he might possibly consider a transition in 2024 after the next iteration of the World Cup of Hockey is completed. Not before then.
That timeline does not appear to be rooted in reality.
Because following this week’s agent meetings, one thing is clear: The clock is ticking on Fehr’s tenure.
Patience is wearing thin among agents, some players, and most critically, now the NHLPA’s own senior staff.
Perhaps, instead of asking Fehr about his potential succession plan, it would have been more appropriate to ask the NHLPA why the association’s Executive Board is not providing one to him?
That is the typical corporate governance for nearly every front-facing business. The board dictates to the CEO, not the other way around. On paper, that may be so with the NHLPA, but not in practicality.
Constitutional Monarchy
The answer to the above question lies on Page 13 of the NHL Players’ Association’s Constitution.
Fehr officially took over as executive director on Dec. 18, 2010 after overwhelmingly being approved by a membership-wide player vote. But Fehr worked behind the scenes in the months prior to that vote to enact changes to the constitution.
“You have an organization of professional athletes who are in a period in which they can use some help, and if I can be of some assistance to them in the process, given the long experience I’ve had, I’d like to try and do it,” Fehr told reporters on Nov. 12, 2009. “I didn’t represent professional athletes for 32 years because I thought that was not the thing I wanted to do. Hopefully, I’ll be able to give them some assistance which will make this task a little easier for them.”
On the surface, the changes proposed by Fehr and the constitution subcommittee were designed to stabilize the union and prevent what happened before. There were three positions of power – executive director, ombudsman and general counsel – all designed to work as a system of checks and balances, independent of one another.
The position of ombudsman, which helped oust predecessor Paul Kelly, was eliminated. Meeting quorums were reduced. The association’s general counsel would now report to the executive director, not the executive board.
In reality, the changes gave way to autocratic rule.
Fehr, the man who was only supposed to be a consultant in the search process, was voted in just over one month later.
Fehr told players then that he did not need a contract, that he would serve at-will. The end result was this clause in the Constitution, according to a copy obtained by Daily Faceoff:
ARTICLE VI – EXECUTIVE DIRECTOR
Section 1. Appointment and Terms of Service
“The Executive Director shall be appointed by the Executive Board to serve on such terms and under such conditions as the Executive Board may consider appropriate. The Executive Director shall be responsible to the Executive Board, and may serve for so long as he or she enjoys the trust and confidence of the Executive Board.“
That has also created what is essentially, for Fehr, a position with no end date. Fehr has earned at least $30 million USD over his 11-year tenure, according to sources.
If Fehr seems like someone who is not in a hurry to leave his post, it’s because unless he decides to step down on his own volition, he knows that it will take a massive effort to vote him out from an executive board of 32 players, who at best are disorganized and at worst are largely indifferent.
Countless generations of players in the association’s history have had their indifference preyed upon by leaders, since they’re mostly worried about their next game or next contract.
In order for Fehr to be removed, it would take 18 ‘yes’ votes in a closed-door executive session meeting (without Fehr) with at least 20 players present for quorum.
When serious allegations were made by former player Beach last October, barely more than 80 players joined that specially called meeting, and all they needed to do was turn on a computer.
Kyle Beach Investigation
Fehr was under fire in that Nov. 1 meeting when called on the carpet by players to respond to Beach’s allegations.
Just days prior, Beach said in an emotional interview with TSN’s Rick Westhead that he questioned Fehr’s ability to continue to lead the NHLPA.
“I know I reported every single detail to an individual at the NHLPA, who I was put in contact with after I believe two different people talked to Don Fehr,” Beach told TSN. “For [Fehr] to turn his back on the players when his one job is to protect the players at all costs, I don’t know how that can be your leader.”
The doctor or therapist that Beach was reportedly put in contact with, Dr. Brian Shaw – also the administrator of the NHLPA’s Player Assistance program – was seen at Wednesday’s agent meeting. He has continued working while the investigation unfolds.
While the temperature was hot heading into that Nov. 1 meeting, cooler heads ultimately prevailed. The players never asked for a so-called “executive session,” in which Fehr would be asked to leave the meeting, so they could deliberate on his future.
A few players asked tough questions, but Fehr told players on the call that if details were provided, he surely would have acted on Beach’s behalf – even if he was not a full-fledged union member.
Fehr recommended that an independent investigation be commenced by an outside firm, a measure that was approved by the executive board. The NHLPA retained Philadelphia-based firm Cozen O’Connor through its Toronto office to conduct the investigation.
More than five months later, the NHLPA says it still has not received the report.
“We expect it to be in the near future,” Fehr said Wednesday. “I don’t know what it will say. I haven’t seen it.”
When asked whether the NHLPA plans to make the findings public, Fehr responded: “It’s not my decision, I’m not in charge of this process. It’s up to the [executive board].”
When asked whether Fehr had an opinion as to whether the findings should be made public, he responded flippantly: “If I did, I would give it to [the executive board].”
It was leading up to that Nov. 1 meeting, five months ago, that the main topic of conversation was Fehr’s job status, whether a succession plan should be in the works. His job security went unmentioned again until Wednesday – the same day the NHLPA placed a gag order on agents prohibiting all future public comment on internal union matters.
History Repeated
History often provides the best indicator for clues as to what might happen next.
What do Alan Eagleson, Bob Goodenow, Ted Saskin and Paul Kelly have in common? They are the four full-time executive directors of the NHLPA and they were all fired.
It ended badly – and bloody – for all four of them. That was likely one of the concerns Fehr had when taking the post. No one seems to get out clean.
Similarly, Fehr has been here before. Whispers from the baseball world then indicated Fehr overstayed his welcome in the MLBPA, serving at the helm from 1985 until being notified his contract would not be renewed in 2009.
Yes, Fehr had a contract then with an expiration date, and he was given five months to help get the MLBPA’s house in order before his replacement would be found. Everyone saved face, and MLB players praised Fehr on the way out for his tireless work.
Is that possible now?
There is still a chance. With change now afoot, there are two ways to do it: the hard way or the easy way.
With the help of senior staff, the NHL’s players and executive board can drop the gloves and make it messy. They can go toe-to-toe with a sports labor titan who has a legacy to lose.
Or, it would be seemingly beneficial for all if Fehr left on his own accord and triggered the clause in his employment agreement, which is believed to include a three-month buffer period, a time in which a proper executive search firm can find the leader for hockey’s next generation of players.
That would allow for a nice, orderly transition of power, instead of plunging the union once again into the only chaos it seems to know.
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