Category:NBA
Posted on: September 6, 2011 3:38 pm
Edited on: September 6, 2011 3:44 pm
 

League, players meeting on two fronts Wednesday

NEW YORK -- It will be a busy day Wednesday in the NBA labor case, with another bargaining session featuring only the heaviest hitters and activity in the league's federal lawsuit against the players, as well.

In addition to the second meeting in as many weeks among the top negotiators for both sides, the judge in the NBA's federal lawsuit in the Southern District of New York has called a telephone conference for 5 p.m. Wednesday. U.S. District Judge Paul Gardephe has ordered attorneys for both sides to join a conference call to discuss the scheduling of hearings, the basic positions on each side and the motion to dismiss the players' attorneys have informed the court they will be filing.

In short, it will be the busiest day of the lockout, now in its third month, since the NBA sued the National Basketball Players Association in federal court and also filed an unfair labor practices charge with the National Labor Relations Board on Aug. 2.

Progress? Maybe. The two sides at least have been able to agree on how to conduct the negotiations, even if they remain fairly entrenched in their positions. All precautions the league and players have agreed to -- limiting the number of people in the room for bargaining sessions, endeavoring to keep the timing and location of the talks secret and vowing not to publicly discuss what happens in the meetings -- have been steps that are conducive to constructive negotiations that actually could lead to a compromise.

The sessions that led to the July 1 lockout and the first two meetings thereafter were tinged with rhetoric and ill will -- distracting forces that have since been eliminated. As was the case the last time the two sides met, Wednesday's meeting will be limited to commissioner David Stern, deputy commissioner Adam Silver and Spurs owner Peter Holt representing the league side with union chief Billy Hunter, president Derek Fisher and lead counsel Ron Klempner appearing for the players.

As for the legal developments, the federal court conference is a mere formality, but a reminder to all involved on both sides that the case will move forward at an excruciatingly slow pace if they don't reach an agreement in time to avoid the cancellation of games. In the players' NLRB case, which remains the most expeditious path to legal leverage for either side, the investigation has concluded and both sides are awaiting a decision from the board. No one on either side is willing to hazard a guess as to when that will happen.

One thing both sides have agreed on from the beginning is that the only realistic resolution to this dispute will happen at the bargaining table, and so it should be taken with a reasonable amount of optimism that the only people with the power to make that happen will be staring across the table at each other again Wednesday for the second time in 14 days. It isn't insignificant at all.

Longtime NBA writer Chris Sheridan, who has left ESPN to launch his own site, has been more optimistic than most from the beginning. And Sheridan, national NBA writer for the Associated Press for a decade before spending the past six years at ESPN, launched the aforementioned site Tuesday with a carefully executed piece detailing why the two sides aren't as far apart as they've been letting on. In the newspaper-dominated days when Sheridan covered the 1998-99 lockout, there was no more challenging job in sports media than covering a competitive national news story for the AP, so he knows of what he speaks.

My take: Nothing has changed, per se, on either side. But what we're beginning to witness with the secretive meetings with only the big dogs invited is a demonstration that the league and players are meandering down the path they have been destined to travel for months. The loud, destructive voices have been banished from the negotiating room, the rhetoric has been toned down or eliminated and the time has come to "give peace a chance," as one source deeply involved in the talks put it.

The heating up of meaningful bargaining is in lock step with the timetable and various external forces I laid out for you here, when I predicted on July 1 that the league and players would agree on a new collective bargaining agreement in time to avoid missing any regular season games. It's worth reading back on that predicted timeline now, because Wednesday's bargaining session will occur one day before a very key date in my timeline: Sept. 8, opening night of the NFL season. The NFL owns the fall sports calendar no matter what, but there's great risk to the NBA and to the players if they give up whatever foothold both have worked so hard to achieve.

In the absence of any external legal pressure or leverage for either side, the calendar is beginning to do its job. That doesn't mean there will be a deal in the next six weeks and that a shortened or lost season will be averted. But it means that an environment conducive to actually negotiating finally has been achieved. And for those hoping to see the NBA on display in 2011-12, that is anything but a bad thing.


 


Posted on: August 25, 2011 12:46 pm
Edited on: August 25, 2011 1:04 pm
 

League, union to meet next week

NEW YORK -- While owners and players are not expected to hold the second full bargaining session of the lockout until next month, a high-level meeting of top negotiators for both sides will take place next week, a person with knowledge of the meeting confirmed to CBSSports.com on Thursday.

The session is expected to include only the highest-level people from both sides, likely limited to commisioner David Stern, deputy commissioner Adam Silver, union chief Billy Hunter and president Derek Fisher, the person said. Also possibly in attendance could be Spurs owner Peter Holt, the chairman of the owners' labor relations committee.

The limited number of people in the room and the fact that both sides are trying to keep the meeting quiet -- not even divulging the date or location in an effort to avoid media coverage -- should be seen as positive signs. Though full bargaining sessions featuring multiple owners and players get more public attention, smaller sessions -- especially involving the lead negotiators -- typically are more conducive to serious negotiation.

The sides have convened only one full bargaining session since owners imposed the lockout on July 1, and the day after that session, the NBA filed an unfair labor practices charge and federal lawsuit against the National Basketball Players Association.

There is no indication that either side's position has changed. In fact, to the contrary, as NBPA officials travel the country informing players of the status of talks, the rhetoric from both sides has reached an unhealthy level. Players have beome incensed with Stern's public characterization of the owners' position in various media appearances, and their latest retort came Wednesday from union vice president Maurice Evans, who took Stern to task for his portrayal of the owners' latest offer.

 "In the proposals we've given them, the players have compromised over $650 million into the owners' pockets over six years," Evans said. "You say you're losing money, and we've offered over $100 million a year to take out of our pockets and they say, 'That's all? That's all? Just a modest $100 million a year?' That's just not bargaining in good faith. It's hard to get anything done that way."

No significant movement is expected until the players' unfair labor practices complaint is acted upon by the National Labor Relations Board or the two sides get close enough to a time when regular season games would be jeopardized. As in the 1998-99 lockout, mid-October represents the timeframe when the league would have to begin canceling games.

A complaint from the NLRB against the league on the players' charge of failing to bargain in good faith, which could come in the next 30 days, would provide leverage for the NBPA in the form of a possible federal injunction lifting the lockout. Conversely, a failure in the players' bid to get the NLRB to issue a complaint would bolster the owners' position. Either result would be likely to spur more serious bargaining and enhance the chances of compromise. 

Until then, a small meeting of the most important minds involved in the process couldn't hurt. 
Posted on: August 24, 2011 10:53 pm
Edited on: August 25, 2011 12:56 pm
 

NBPA's Evans says players 'ready to negotiate'

While the National Basketball Players Association continued a whirlwind tour of regional meetings in New York on Wednesday, there was little indication any of those meetings could bring them face-to-face with their employers anytime soon.

After union officials briefed about 10 players on the dismal state of collective bargaining talks at the NBPA headquarters in Harlem, union vice president Mo Evans said there were no immediate plans for a full bargaining session until perhaps after Labor Day.

UPDATE: There will, however, be a secretive meeting of only the highest-level negotiators for both sides next week, a person familiar with the meeting told CBSSports.com on Thursday. The session is expected to include only commissioner David Stern, deputy commissioner Adam Silver, union chief Billy Hunter and president Derek Fisher. Also present could be Spurs owner Peter Holt, the chairman of the owners' labor relations committee. But no other players or owners are expected to be included, which could create an environment conducive to productive negotiation.

"We're looking forward to the owners re-engaging us after a couple of weeks of vacation," Evans told CBSSports.com by phone after landing in Chicago, where the NBPA will hold another regional meeting Thursday. "We're ready to negotiate. We're ready and we're available."

Each side, however, is endeavoring to prove otherwise before the National Labor Relations Board. Earlier this month, the NBA filed its own charge accusing the players of failing to bargain in good faith after the union accused the owners of the same back in May. There has been only one bargaining session involving all the key players from both sides since the owners imposed the lockout July 1.

"Even in that meeting we had, they didn't engage," Evans said. "In the proposals we've given them, the players have compromised over $650 million into the owners' pockets over six years. You say you're losing money, and we've offered over $100 million a year to take out of our pockets and they say, 'That's all? That's all? Just a modest $100 million a year?' That's just not bargaining in good faith. It's hard to get anything done that way."

The players have been flustered by Stern's public characterization of the owners' position in recent media appearances, and Evans said the purpose of the regional meetings is to "inform the players" of how Stern has been untruthful and "very inaccurate" in his portrayal of what the owners have proposed.

The NBA contends that the players' $100 million-a-year concession would result in the average player salary rising from its current level of about $5 million to $7 million by the end of the NBPA's six-year proposal and says the players actually are proposing slowing the growth of salaries by $100 million a year. With every dollar sign and zero, the fans' eyes glaze over.

"We're not so much frustrated," Evans said. "We're just not being impatient. Nothing's lost, nothing's jeopardized as of now. But we are eager to get this back on track. We're coming off a lot of record highs in terms of ratings and BRI, and the game is in such a good place. The NFL gets a 10-year deal, and I've been to some NFL (preseason) games and the fans are so excited. We owe that to our fans as well."

In meeting with players throughout the country -- more than 70 in Los Angeles and about 35 in Las Vegas last week -- Evans has heard a gathering insistence among NBPA members that they are willing to lose the entire season if that's what it takes to get a "fair deal," he said.

"The guys are willing to suck it up as long as we have to in order to stand up for what's right and protect what all the great players who've come before us have fought for," Evans said. "The Bill Russells, Michael Jordans, Larry Birds and Magic Johnsons have done great things to allow us to make the salaries we have and wear these great uniforms. It'd be a shame to give up everything those guys have fought for."

Reality dictates that neither side will give up anything until forced to do so. The only forces bearing down on these labor talks that could result in a change of heart are the players' unfair labor practices charge against the owners, which could result in a federal injunction lifting the lockout if successful, and the calendar itself. Sources on both sides understand that once the calendar flips to October, the currently distant threat of games being canceled becomes harsh reality.

"In the more than two years I've been associated with this, we've been in entire sessions on ways to increase revenues and improve the game," Evans said. "We've suggested all kinds of awesome ways that will create even more competitive balance and increase profitability. But that's not what they're interested in. The only thing they're interested in is the players taking a cut and increasing the owners' profits."


Posted on: August 17, 2011 5:00 pm
Edited on: August 17, 2011 9:08 pm
 

Kobe to players: 'Stand behind the union'

During a series of meetings in which union officials are updating players on the status of collective bargaining this week, one voice stood out: that of Kobe Bryant.

Before a star-studded audience of about 75 players in Los Angeles Tuesday, Bryant was “up front” and “deliberate” in a speech in which he urged players to maintain solidarity and “stand behind the union” during the lockout, according to a person who was in attendance. Sources told CBSSports.com that another test of that solidarity could come next week, as top union officials were authorized Wednesday to contact deputy commissioner Adam Silver in the hopes of scheduling a bargaining session in New York before the end of the month.

Bryant and Paul Pierce told players Tuesday it was important for them to “remain united” in the face of a lockout that has dragged well into its second month with only one full-scale bargaining session, the person who attended the meeting said. Among the players in attendance were Blake Griffin and Eric Gordon of the Clippers, Elton Brand of the 76ers, Tyson Chandler of the Mavericks, Russell Westbrook and James Harden of the Thunder and Corey Maggette of the Bobcats.

Contacted for comment on the player meetings, union chief Billy Hunter said he also briefed a contingent of about 20 agents on the status of negotiations Tuesday before traveling to Las Vegas, where he was meeting with about 35 players Wednesday. Hunter also will meet with players next week in Houston, Chicago and New York.

“Our message is that there’ve been several proposals back and forth, and the last proposal by the NBA would be a giveback of $8 billion over 10 years,” Hunter told CBSSports.com. “The players understand and they’re supportive.”

Hunter said there was a “divergence of opinion” among the agents about the National Basketball Players Association’s decision not to disclaim interest in representing the players – and the players’ decision not to decertify. Some high-profile agents have clamored for decertification, which would send the dispute to the federal court system under antitrust law. Hunter has so far resisted, preferring to explore the possibly more expeditious path to an injunction lifting the lockout, which could result if the union is successful in getting the National Labor Relations Board to issue an unfair labor practices complaint against the NBA.

Sources said NLRB investigators are expected to wrap up the evidence-gathering phase as early as next week and would then have all the information they need to render a decision on the players’ charge.

Though NBA commissioner David Stern is expected to be away on vacation, sources also told CBSSports.com that the two sides are trying to reconvene for a high-level bargaining session next week in New York. If league and union officials can agree on the scheduling details, it would be the first full-scale bargaining session since Aug. 1 – and the first since the NBA filed a federal lawsuit and an NLRB charge accusing the players of failing to bargain in good faith. Both legal actions were filed on Aug. 2, one day after Stern said the players were not bargaining in good faith.

It remains to be seen whether the players’ desire to meet next week will result in a productive negotiating session or more mudslinging. Stern accused the players of canceling a bargaining session last week while Hunter was involved with four days of appearances before the NLRB. Sources said an offer by the union to hold a staff-level bargaining session was rejected by the league, and that Hunter was told Stern would be away on vacation this week and next.

Clearly, Stern could easily return to New York for a bargaining session regardless of his vacation plans. So it’s a matter of will on both sides – and a question of whether anything has changed since the fruitless session on Aug. 1. Answer: Probably not. Not yet.
Posted on: August 5, 2011 4:22 pm
 

Sadly, it's players behaving badly

This was all working out so well for the players. Deron Williams said hasta la vista to the lockout and took his talents to Turkey. Kevin Durant lit up Rucker Park with 66 points. Dwyane Wade, Chris Paul and Carmelo Anthony went to China and supposedly came back with lucrative offers for themselves and all their pals.

Or not.

To this point, no superstar has followed D-Will to Turkey or anywhere else. There are complications with these supposedly lucrative offers in China. And oh, we now bring you the widely anticipated and sadly inevitable news of Michael Beasley shoving a fan in the face and Matt Barnes punching an opponent during pro-am games on either coast.

We don't even want to get into the escapades of three former NBA players in the news this week -- Darius Miles, who was arrested for trying to bring a loaded gun through airport security, Rafer Alston, who was sued over his alleged role in a strip club fight, and Samaki Walker, who allegedly tried to dine on eight grams of marijuana during a traffic stop in Arizona, during which police also confiscated prescription drugs and liquid steroids.

Guns, strip clubs and weed -- the trifecta of ammunition for those quick to stereotype NBA players as outlaws, lawbreakers and menaces to society. Great job, guys.

It’s a lockout, so NBA players must be behaving badly. And they are.

I’ve written previously on my disappointment that the stars with all the clout aren’t speaking up for the union in the ongoing labor dispute, preferring instead to stay quiet and tend to their own affairs. The latest flare-up from the NBPA’s knucklehead contingent is proof why union officials disagreed with my premise all along. Simply put, they were happy that the players, by and large, had been conducting themselves professionally during the lockout and not stepping out of line – a la Kenny Anderson, who turned the public on the players when he lamented having to sell some of his luxury cars during the 1998-99 lockout.

The union, it appears, will give up a few sound-byte points to David Stern so long as it can avoid the Kenny Anderson moment. Except now, they have the Michael Beasley moment and the Matt Barnes moment.

The NBA has gone to great lengths in recent years to curtail on-court behavior, clamping down on gesturing, complaining to officials, and the like. But no such rules were in effect at New York City’s Dyckman Park, where Beasley “mushed” the face of a heckler Thursday night. Nor were they in effect at Kezar Pavilion in San Francisco, where Barnes punched an opponent in a pro-am game on the very same night.

Such offenses in an NBA game would’ve earned an ejection, a hefty fine and a pointed rebuke from Stern. But the commissioner has no authority over the players now except in how he nonchalantly eviscerated all their bargaining positions with a smile on ESPN Tuesday night.

“They’re not serious about making a deal with the NBA,” Stern said, with no on-air response from any union representative. “They’re so busy talking about their decertification strategy, following the lead of their attorney, Jeffrey Kessler who did it for the NFL players, and engaging in conversations with agents about it and talking about it constantly, that we think that is distracting them from getting serious and making a deal.”

And now, some players are busy slugging playground wannabes and “mushing” the faces of hecklers from coast to coast, failing to realize that everyone in attendance has a phone capable of recording video and uploading it YouTube for all the world to see. Big difference from the last lockout, when we only got to read about a fraction of the follies the next day in the newspaper.

Making matters worse, just when it seemed that the players had a Kenny Anderson moment to pin on Stern – his bloated salary, which was reported to be between $15 million and $23 million – well, never mind. The Associated Press weighed in, citing multiple league sources who said Stern makes less than baseball commissioner Bud Selig ($18 million) and NFL commissioner Roger Goodell ($11 million). A person with knowledge of the activities of the NBA’s advisory/finance committee – a group of 11 owners who set Stern’s salary – confirmed to CBSSports.com that $10 million or less was “in the ballpark.”

So to sum up, the best strategy the players have against the owners is to walk a straight line (except, now some of them are not) and the threat of stars going overseas (except only one star has done so). And even if more follow – even if 20 more follow – where does that leave the other 400 players? To stay home and receive weekly updates from NBPA president Derek Fisher about how the owners still haven’t moved off their “my-way-or-the-highway” proposal – or to go out and play for free in some exhibition game, where one union member or another might just have to slug somebody?

It’s a tough act to follow, but several star players will try. Even if a dozen or more of them get lucrative deals in China or somewhere else for $1 million a month, that’s still a small fraction of their NBA salaries. Don’t you think Jerry Buss would jump at the chance to pay Kobe Bryant $1 million a month? That’s a hefty discount off his NBA haul of $25 million a year.

How is all of this intertwined? Everything is intertwined during a lockout, and must be viewed through the prism of whether it helps or hurts the players’ bargaining position. Going off on a heckler or opponent at some exhibition game does not qualify as helpful. Except to the traffic on YouTube.
Posted on: August 4, 2011 6:48 pm
Edited on: August 4, 2011 10:44 pm
 

NBPA to file motion to dismiss lawsuit


NEW YORK -- Officials from the National Basketball Players Association huddled Thursday and decided to file a motion to dismiss the NBA's federal lawsuit, a move that likely will come in the next 7-10 days, sources told CBSSports.com.

The decision is hardly stunning, considering attorney Jeffrey Kessler's strident rejection of the basis for the league's suit, which seeks declaratory judgment from the U.S. District Court for the Southern District of New York that the lockout is legal. Also, the NBA is seeking protection on antitrust grounds from a possible decertification by the players (or disclaimer of interest to represent them by the union) and has proclaimed its intention to void all existing contracts if the NBPA dissolves.

Kessler told CBSSports.com Tuesday the lawsuit has "no merit," and that he intends to use it as evidence of the league's bad-faith bargaining in a separate charge pending before the National Labor Relations Board.

Under intense pressure from prominent agents to decertify and file an antitrust lawsuit against the NBA, union chief Billy Hunter has resisted and instead pursued the case under federal labor law with the NLRB, which some legal experts believe could provide the clearest path to an injunction lifting the lockout. The agents shouldn't hold their breath, as decertifying or disclaiming interest now now could impede the progress of the NLRB case, for which a ruling is expected in 30-60 days.

In addition to the federal lawsuit Monday, the NBA also filed its own unfair labor practices charge against the NBPA.

After a motion to dismiss in federal court, the next step would be hearings on the matter before U.S. District Judge Paul Gardephe. If the union had chosen to simply answer the complaint, the case would've proceeded to discovery and then, trial -- though few legal observers or attorneys on either side believe it will ever get to that point.

However, if the two sides wind up in a protracted legal fight, the NBA could benefit from its decision to file pre-emptively in the Second Circuit, thus setting the venue where it has previously defeated the NBPA in an antitrust case. In 1995, the Second U.S. Circuit Court of Appeals ruled against the NBPA when it was seeking to have the salary cap and college draft abolished.
Posted on: August 2, 2011 4:25 pm
 

NBA legal action: What does it mean?

NEW YORK – As it turns out, my question to David Stern as he walked away from a gloomy media scrum Monday night was a prelude to the next phase of the NBA lockout, which has now entered its second month and a new frontier of ugliness.

Stern, who certainly knew full well league attorneys were busy preparing a double-barrel legal assault on the players, thought carefully for a few seconds before answering the question: “Would you say the players are bargaining in good faith, or not?”

We all know what he said, and it was followed up Tuesday with a two-fisted legal maneuver that will set the tone for the next 30-60 days of bargaining – or lack thereof.

What does it mean? First, the easy part: In a charge before the National Labor Relations Board, the league accused the National Basketball Players Association of failing to bargain in good faith – just as Stern said. This was in response to a pending complaint from the players, who leveled the same accusation against the NBA before the NLRB.

You can sum it up like this:

“You’re bargaining in bad faith!”

“No, you are, meathead!” (Archie Bunker sticks out tongue and sprays, “THHZZZZTHZZPPHTH!”

The second action, a federal lawsuit in the Southern District of New York, is more complicated. As we’ve discussed previously, the NBA decided not to sit idly by and wait to see if the NBPA would, in fact, decertify and file an antitrust lawsuit. The league is asking U.S. District Judge Paul Gardephe for a declaratory judgment affirming that the lockout is legal and heading off the players’ potential decertification. The lawsuit stipulates that, even in the event the court finds that the players have the legal right to decertify, all player contracts under the previous collective bargaining agreement would be “void and unenforceable” if the union disbanded.

“These claims were filed in an effort to eliminate the use of impermissible pressure tactics by the union which are impeding the parties’ ability to negotiate a new collective bargaining agreement,” deputy commissioner Adam Silver said. “For the parties to reach agreement on a new CBA, the union must commit to the collective bargaining process fully and in good faith.”

Billy Hunter, the NBPA’s executive director, released a statement Monday calling the NBA’s actions “totally without merit.”

“The litigation tactics of the NBA today are just another example of their bad-faith bargaining and we will seek the complete dismissal of the actions,” Hunter said. “The NBA Players Association has not made any decision to disclaim its role as the collective bargaining representative of the players and has been engaged in good-faith bargaining with the NBA for over two years. We urge the NBA to engage with us at the bargaining table and to use more productively the short time we have left before the 2011-12 season is seriously jeopardized.”

Jeffrey Kessler, the NBPA attorney mentioned frquently in the league's lawsuit, told CBSSports.com the action has "no merit" because the union has made no decision to decertify and has never done so in its history.

"They're just determined to do anything they can to prolong their lockout so they can try to break the players and don't really seem to care about the damage it does to the game," Kessler said. "That’s unfortunate. The players won't be deterred." 

A couple of important points: the NLRB charges (one by each side) follow a different legal track than the federal lawsuit. One does not necessarily influence the other. So first off, nothing the NBA did Monday can stop the players from continuing to follow their most expeditious path to an injunction lifting the lockout – that being a complaint issued by the NLRB and a subsequent request to a federal judge to enjoin the lockout.

Even a ruling in the NBA’s lawsuit asserting that the lockout is legal could not prevent a judge from lifting the lockout via the NLRB case, which is governed by federal labor law – not antitrust law. The Norris-LaGuardia Act, which tripped up the NFL players in their antitrust lawsuit, does not apply to the NLRB cases.

In fact, when asked how the NBA's legal action affects the players' unfair labor practices charge pending before the NLRB, Kessler said told CBSSports.com, "We think this is going to be part of the evidence of their bad faith. This will support the complaint that’s already before the NLRB."

But what the NBA has done here is tried to disarm the players of the legal strategy of decertification, through which they would follow the NFLPA’s lead and challenge the lockout and other practices as violations of antitrust law. Unlike the NFL players, who had to decertify by a collectively bargained deadline, the NBA players were at a legal advantage while they pursued the NLRB charge while keeping decertification and an antitrust suit in their back pockets to use when they saw fit. The NBA’s federal lawsuit seeks to remove this option, purportedly as a way to force the players to soften their bargaining strategy and expedite an agreement on a new CBA.

But the very nature of legal timetables could have the opposite effect. Depending on how the NBPA responds, you could be looking at 60-75 days before the matter would even reach the point of a hearing – much less a decision by the judge. The NBA’s regular season is supposed to open three months from Tuesday, and if both sides want to go to trial, well you can pretty much forget about that.

If an eventual ruling is appealed to the 2nd U.S. Circuit Court of Appeals, it’s difficult to imagine a decision from the appeals panel before the calendar says 2012.

Kessler declined to comment on how and when the players would respond to the lawsuit. As for the NBA's charge of bad-faith bargaining by the players, Kessler said, "We know where the bargaining table is. They know where the bargaining table is. We were just there yesterday, and we came out and found this lawsuit. There's been no breakdown of bargaining except by them."

On the bright side, both sides fully understand – and the courts favor – the notion that the only way this labor dispute will be resolved is at the bargaining table between the parties. So the leverage and threat of various outcomes on every one of these legal tracks are far more important than the outcomes themselves.

The league hopes that the federal lawsuit will cause the union to abandon decertification as a possibility, and that once the antitrust option is “out the door,” as one legal expert put it, the two sides will be better positioned to reach agreement at the bargaining table.

It’s too early to tell whether the NBA will be successful on either front. From now until the district court actually rules on the NBA’s complaint, the union is free to decertify and file whatever lawsuits it wishes – as long as it does so in the 2nd Circuit, since the NBA succeeded in setting the venue by suing first. Also, with numerous players still getting paychecks from last season throughout the summer – and with the league owing the players $188 million in escrow and additional payments based on the 2010-11 BRI audit – the players are in a position to endure the missed paychecks that eventually will come with missed games.

League sources insist there was no Magic to the 2nd Circuit as a venue for its legal action; the court is in Manhattan, where both parties and most potential witnesses are based. But the fact remains that the league could’ve filed the case anywhere in the country where an NBA team exists, and it chose the 2nd Circuit.

A preliminary scouting report on Gardephe shows that he is a Republican appointee, having received his ticket to the bench by President George W. Bush in 2008, and thus could be considered a pro-management judge. Either way, the league has set home-court advantage – which is every bit as important in a basketball lawsuit as it is in a basketball game.

Basketball fans who want to see games, meanwhile, can only hope it doesn’t get to that point.
Posted on: August 1, 2011 6:54 pm
Edited on: August 1, 2011 7:17 pm
 

Stern accuses players of bad-faith bargaining

NEW YORK – The NBA labor talks took on a poisonous tone Monday, with each side lobbing rhetoric about the other not being willing to negotiate. The coup de grace came shortly before 6 p.m., from commissioner David Stern.

Standing in a midtown hotel lobby after a nearly three-hour farce of a bargaining session – the first between the two sides since owners imposed a lockout on July 1 – Stern fielded one last question in a terse and decidedly glum media session. After saying, “I don’t feel optimistic about the players’ willingness to engage in a serious way,” Stern was asked if he believes the players are bargaining in good faith, or not.

The grim-faced commissioner thought about it for several seconds and said, “I would say not. Thank you.”

And with those comments, Stern’s most direct public assault on the players during the more than two years of bargaining, the NBA lockout took its next step toward all-out legal warfare.

The National Basketball Players Association already has filed a charge with the National Labor Relations Board alleging, among other things, that the owners have failed to bargain in good faith. The players’ hope is that this charge will result in a formal complaint from the NLRB, and then, an injunction from a federal judge reinstating the terms of the previous collective bargaining agreement. Short of decertification by the union, this would be the quickest path for the players to legally pressure the owners to back down from their demands of massive salary cuts as a cure for $300 million annual losses by the league.

With Stern firing back Monday that it’s the players who are not bargaining in good faith, he set the stage for a possible counter-charge by the league with the NLRB on the subject of good-faith bargaining. Such a legal strategy, which league officials would not confirm Monday as being on the table, could blunt the impact of the players’ charge and – more importantly – drag the lockout precariously into territory where it would be impossible to save all of the 2011-12 season.

As a point of reference, the NFL owners filed a similar charge with the NLRB in February, and that sport’s lockout ended before the board even finished investigating it. NBPA attorney Larry Katz has said he is hopeful that the NLRB will rule on the union’s complaint in the next 30-60 days. Training camps are supposed to open in about 60 days.

“I think it’s fair to say that we’re in the same place as we were 30 days ago,” Stern said. “And we agreed we’d be in touch to schedule some additional meetings.”

Asked why that would be necessary, given the lack of progress, Stern said, “There’s always a reason for more meetings because that’s the only way you’ll ultimately get to a deal, at the negotiating table. You never know, but right now we haven’t seen any movement.”

Earlier, NBPA president Derek Fisher accused Stern, deputy commissioner Adam Silver and the owners present Monday – San Antonio’s Peter Holt and Minnesota’s Glen Taylor – of saying one thing in the negotiating sessions and publicly and delivering quite another message by refusing to alter their proposal.

“I think Peter and Glen Taylor, Mr. Stern, Adam Silver are articulating certain things in the room, expressing their desire to get a deal done,” Fisher said. “But where their proposal lies makes it hard to believe that.”

Informed of Fisher’s comments, which echo the NLRB charge about failing to bargain in good faith, stern said, “He’s entitled to draw his own conclusion. We have absolutely the opposite take on it.”

While Fisher expressed optimism about “restarting this process,” Stern was asked what may have occurred Monday that gave him encouragement.

“Nothing,” he said.

The two sides agree on one thing, if nothing else: They’ll attempt to schedule at least one bargaining session in the next couple of weeks, with the ultimate goal of engaging in talks for consecutive days before Sept. 1. At that point, the league will be entering what essentially is a two-week window when it must begin contemplating the postponement of training camps and the cancelation of preseason games.

“There was a lot of discussion, a lot of ideas being thrown around,” said Fisher, adding that one irrefutable fact is becoming “clearer and clearer” about the owners’ position.

“What the bottom line is, is what the bottom line is,” Fisher said.

Stern disagreed, saying the owners’ offer of $1.4 billion in revenues to the players – a more than 33 percent pay cut in their initial proposal -- has consistently increased, and most recently was at $2 billion.

“We’ve made several offers, but we don’t feel significant movement back,” Stern said. “As we pointed out to the players, their last offer, 30 days ago, was to take their (average) salaries from $5 million to $7 million over a six-year period. So there’s still a very wide gap between us.”

The players dispute Stern’s repeated portrayal of their proposal, which they say starts off with a reduction in the players’ percentage of revenues from 57 percent to 54.3 percent in the first year of a six-year deal that would slow the growth of salaries by about $100 million a year.

Stern went so far as to use concessions made by NFL players in ending that sport’s lockout as justification for the NBA’s demands.

“From where we sit, we’re looking at a league that was the most profitable in sports that became more profitable by virtue of concessions from their players with an average salary of $2 million,” Stern said. “Our average salary is $5 million, we’re not profitable, and we just can’t seem to get over the gap that separates us.”

What Stern missed – and perhaps Fisher, too – was a moment in the Omni Berkshire Hotel lobby that summed up the sad state of affairs better than either man could. As Fisher addressed the media, a young boy walked by and said excitedly to his father, “Dad, that’s Derek Fisher!”

As his father fumbled for his camera to capture a moment more inglorious than he knew, the boy said, “This must be about the NBA lockout.”

And it’s only going to get worse from here, for kids like that.
 
 
 
 
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