The Players didn't unilaterally decide that on their own--the league agreed with them. The CBA says clearly if either the PA or NHL disagree with the default 5% escalator then they have to convene and agreed on a new %. The CBA doesn't say in the event the two can't agree then the escalator remains at 5%--it says they must agree. Therefore the default interpretation would be in the event the two parties couldn't agree that they'd take it to the arbitrator to hear their cases and make a ruling.
You can go back to the first time the escalator was not 5%. The NHL wanted it to remain 5% - they made that abundantly clear - but caved. Ever since then the NHL has put out cap projections and those have been later undermined by the NHLPA fighting for a lower escalator.
IMO the PA would have had a slam dunk win for a lower % if it ever went to the arbitrator. All they'd have to point to is the high levels of escrow they're experiencing.
In my opinion they would have almost no chance if the NHL took them to arbitration the first time because they seem to have no idea what they are talking about. Escrow is not tied to the escalator. It is tied to the cap formula that they wanted. They didn't want salaries rolled back when they went from 57% to 50% of league revenue. The NHLPA wanted the cap to be at 65M for 2013/14. In order to get there they agreed to a cap formula that they knew would lead to high escrow. Again - the escalator was, what? 1% this season. Not tied to escrow at all. And escrow was higher in the years after the CBA was signed. So higher escrow was completely fine - and preferred, until it wasn't. Following the CBA and what was previously done would have undoubtedly been the decision.
They would be laughed at arguing in front of an arbitrator. Want to lower escrow - change it to the proper formula - that is the only way it can happen. But the players won't allow that because it would lead to a salary rollback.
"The league is holding firm to its desire for a $60 million cap, down from a prorated $70.2 million this season. The league wants to protect the salary cap minimum for smaller-market teams (the floor would be $44 million), while the players would like to see the cap higher, about $65 million, to help the flood of free agents who will hit the market next summer, even though that has the potential to drive up player escrow pending revenues. The players are not seeking a cap on escrow, though."
The players got exactly what they demanded there - the cap was around 64.5M and with it they got the exact high escrow system that they demanded. Years later they tried to have it both ways by screwing over new UFAs and RFAs. They also fought for, and won, much longer contracts then the owners wanted. So they want long contracts, but then also want to pull the rug out from the teams when it comes to greater certainty over the cap numbers. Pure greed.
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