Tag:David Stern
Posted on: November 14, 2011 2:56 pm
Edited on: November 14, 2011 8:54 pm
 

NBA players blow up union, take fight to court

NEW YORK -- Unable to reach a collective bargaining agreement with the NBA, the union representing the players dissolved Monday and paved the way for a potentially lengthy and ugly antitrust lawsuit to be filed within days.

With a unanimous show-of-hands vote from as many as 50 players, the union sent a disclaimer of interest letter to commissioner David Stern, which effectively ended the National Basketball Players Association's role as the collective bargaining agent for the players. Outside counsel Jeffrey Kessler and star attorney David Boies -- whom the players met for the first time Monday -- will lead the legal team that will sue the NBA alleging antitrust violations.

"We've negotiated in good faith for over two years," said Billy Hunter, who now becomes executive director of the National Basketball Players Trade Association -- no longer the leader of the players' union. "The players just felt that they've given enough."

Stern, speaking live on league broadcast partner ESPN, called the players' tactic "a charade" and characterized it as a "magical trick" that ultimately will fail.

"What they've done is destroyed incredible value that would've gone to the union membership," Stern said. "... We were very close, and they decided to blow it up."

Stern made no pronouncements about further cancellation of games, but added, "The calendar takes care of that." Although the disclaimer action initiated by union executive director Billy Hunter is more expeditious than a decertification vote initiated by the players, the legal fight that will ensue certainly imperils the 2011-12 season.

"Obviously, Mr. Kessler got his way," Stern said, "and we're about to go into the nuclear winter of the NBA."

During a meeting attended by the players' executive committee, player reps from all 30 teams and about 20 more players -- including superstar Kobe Bryant, Tyson Chandler, Carlos Boozer, Rajon Rondo and Elton Brand -- union officials presented and explained details of the league's most recent offer. It had been characterized as the final revised proposal the league intended to offer, and if the players didn't accept it, Stern's negotiating position would revert to a harsher offer -- including player salaries being derived from a 47 percent share of revenues, a hard team salary cap and rollbacks of existing contracts.

The deal on the table for the players Monday included a 50-50 split of revenues -- a 12 percent reduction from their previous share of 57 percent -- and a long list of system and spending restrictions. Hunter said the meeting gained momentum and changed in tone once players raised the option of decertification. They ultimately chose the more expeditious option of a disclaimer, with Hunter saying a summary judgment in the antitrust case could possibly be reached in 60 days -- about the length of time it would've taken the National Labor Relations Board to authorize an election through a player-initiated decertification. 

About 200 players already had signed decertification petitions, displeased with the league's negotiating tactics and the concessions made by the union. Among these were 15 players in the meeting Monday, Hunter said.

The former union executive director said he has no intentions of withdrawing the NBPA's unfair-labor practices charge with the NLRB, although it is not clear how the agency will view it now that the union has been dissolved.

While the route the union chose is quicker than decertification, it is no silver bullet for the NBA players to win what are known as "treble damages" -- three times lost earnings resulting from the lockout -- or to eventually get a better deal. For starters, there will be a significant legal fight over where the union is allowed to file its antitrust case. Presumably, the players would prefer to file it in an employee-friendly district in California, under the auspices of the 9th U.S. Circuit Court of Appeals. For this reason, the NBA in August filed a pre-emptive lawsuit in the Southern District of New York, which falls in the employer-friendly 2nd Circuit. 

Once that is resolved, the league will argue that the players' disclaimer is a "sham" -- in other words, a tactic designed to gain negotiating leverage rather than a serious union dissolution. The NFL Players Association tried the same tactic, and started much earlier in the process -- principally because it had no other choice due to a litigated deadline to decertify or disclaim or lose the option going forward.

The NFLPA never got an ultimate ruling on whether the lockout or disclaimer were legal, but instead got a narrow ruling from the 8th U.S. Circuit Court of Appeals that the federal district court did not have the authority to lift the lockout.

"I felt the combination of Boies and Kessler, from my perspective, would be an unbeatable team," Hunter said. "... We feel extremely confident that we can prevail in this matter. That’s the opinion of both lawyers."

In a statement released by the league office after his live TV interview, Stern said, "The 2011-12 season is now in jeopardy," and immediately began laying the groundwork for what could be the mother of all antitrust lawsuits. Stern alluded to a February 2010 bargaining session in which union attorney Kessler threatened that the players would "abandon the collective bargaining process and start an antitrust lawsuit against our teams if they did not get a bargaining resolution that was acceptable to them."

"The NBA has negotiated in good faith throughout the collective bargaining process but -- because our revised bargaining proposal was not to its liking -- the union has decided to make good on Mr. Kessler's threat."
Posted on: November 14, 2011 12:11 am
 

Agent fires back at Stern over 'greed' comment

Angered by commissioner David Stern's assertion that greedy agents are imperiling the possibility of reaching a collective bargaining agreement, high-profile agent Mark Bartelstein fired back Sunday night -- telling CBSSports.com that it is the owners, not the agents, who are being greedy.

"The greed that's being exhibited in this negotiation is strictly on the part of the NBA owners and nowhere else," Bartelstein said. "When the union has shifted well in excess of $3 billion over the course of this deal from players to owners and that's not good enough for the owners, that's the definition of greed."

In a phone interview with the Association Press, Stern said this weekend that agents appeared to be engaged in an "orchestrated" campaign to conceal details of the owners' latest proposal from their clients and are choosing instead what he called a "losing strategy" of decertification.

"By some combination of mendacity and greed, the agents who are looking out for themselves rather than their clients are trying to scuttle the deal," Stern said.

(Mendacity isn't the same thing as asshattery, but it's close. Google says it is the act of being untruthful.)

Bartelstein, one of the most powerful agents in the NBA with dozens of clients, also is among a group of seven influential agents who have collected around 200 signatures on decertification cards to be submitted to the National Labor Relations Board in an effort to dissolve the union in response to what they view as a decidedly one-sided negotiation favoring the owners.

"If the players are going to make the concessions to address over $300 million a year in a shift in revenue from the players to the owners, the one thing the players should get back is flexibility, freedom, freedom of choice and a more vibrant and free-market system, because it's a zero-sum game," Bartelstein said. "Instead, they're ratcheting down the system in the name of competitive balance, and that's completely disingenuous.

"A negotiation is supposed to be about making trades," Bartelstein said. "The biggest part of any negotiation is the dollars. That's the biggest part of this negotiation. The players are giving the owners the dollars. If the owners are concerned about competitive balance, it can absolutely be handled through revenue sharing. And the myth they're putting out there that they can't share losses, there's no truth to that argument whatsoever. Revenue sharing has nothing to do with sharing profits and losses. It's about making sure low-revenue teams can have more revenue so they can be more competitive and you can have a better product. That should be done through revenue sharing, not through getting concessions from the players."

Bartelstein said he has spoken with union executive director Billy Hunter in recent days to share his thoughts about the state of the negotiations and the options at the players' disposal. Hunter convened a meeting of the players' executive committee Sunday night in advance of a meeting with player reps and potentially other players at 9 a.m. ET Monday in Manhattan. As was the case last week, the player reps will decide whether the owners' proposal should be presented to the full body for a vote, or whether it should be rejected or sent back to the league with suggested amendments and a request for further negotiation. Stern has said the league does not plan to revise the proposal again, and that it is the last one that realistically could provide the players with a 72-game season starting Dec. 15.

It also is the last one that would give the players a 50 percent hare of revenues. If the players reject the offer, Stern said the owners' negotiating position will shift to an offer in which player salaries would be derived from a 47 percent share of revenues with a hard team salary cap and rollbacks of existing contracts.

As of Sunday night, no final decision had been made on when the players would file a decertification petition with the NLRB, but there is widespread assumption in the agent community that the players will not accept the league's offer or put it to a vote. Also, there are indications that the decertification movement could push forward early this week regardless of what the player reps decide to do with the proposal.





 
Posted on: November 13, 2011 11:30 pm
 

Latest lockout mayhem: The Twitterview

Just when you thought the lockout couldn't get any weirder, behold: The Twitterview.

In a good idea gone bad, thus mimicking everything about the negotiations that will come to a head one away or another in the coming hours and perhaps days, commissioner David Stern and deputy commissioner Adam Silver fielded and answered questions about the stalemate from fans, media members and players on Twitter Sunday night.

This went well in a way that things went well for that one surviving dinosaur after the meteor shower, ensuing floods, and thousands of years of only amoebas inhabiting the Earth. If you enjoy this sort of thing, you can relive the experience here in our Eye on Basketball blog.

Stern and Silver -- primarily Silver, judging from the tone and familiar content of the answers -- did provide some useful information in response to specific questions about the league's latest proposal (the complete details of which were obtained by USA Today and are posted here). That would be the one that is on the table only until the players decide Monday whether to accept it for a vote or reject it, after which it will be replaced by a new negotiating position that includes a further reduced share of revenues for the players as well as a hard team salary cap and rollbacks of existing contracts.

In response to a couple of important questions about how the negotiations got to this point, Stern and Silver tried to explain why they would shift to a harsher proposal if the players rejected this one. "Teams suffering economic losses with no season," they replied. "No choice but to recover if season does not start soon."

Several of my followers quickly chimed in and pointed out that the league simultaneously claims to have lost enormous amounts of money by operating under the previous system, so shouldn't not operating be preferable? And also, that going from a proposal the players don't like to one they like much less could only accelerate the losses the league says it is trying to avoid.

So, yeah, this was going swell.

They dropped a couple of news Nuggets, saying in response to one question that contraction "has been discussed," but that it's "not a complete solution," and reiterating the legal position expressed in a federal lawsuit against the players that decertification of the union would result in all player contracts being voided.

They got hit with angry questions from players Spencer Hawes and Dwyane Wade, and more than a few people in my timeline came away with the impression that the league's answers were evasive and condescending.

"Does @NBA have, 'We need a system that allows all 30 teams to complete for a championship' on auto-answer?" one follower asked.

"If @NBA runs the bargaining sessions like this chat," wrote another, "I see why meetings take 15 hours."

Chris Paul at one point chimed in and chided Stern and Silver for failing to answer Hawes' question about why the lockout must continue if the players have addressed all the league's economic losses. Stern and Silver did not answer the question I sent them: "Does the union have the option of proposing amendments before indicating whether it would send it to the players for a vote? Or is this it?"

When they were finished alienating many of the league's more than 3 million followers, Stern and Silver ended the Twitterview after a final question from a media member, Sam Amick of SI.com: "Don't teams that received public funding for their arenas to be built have a responsibility to their communities to continue operations?"

"No mandate to operate unprofitably," they replied, and after 90 minutes and 29 questions, it was over.

"Thank you for participating," the NBA leadership said. "There is a fair deal on the table that will allow the season to start on December 15."

But there was one more tweet.

"We want our players and teams to do well and we hope our proposal is accepted," the NBA wrote. "Good night."

Before the ill-fated Twitterview began, I wrote this analysis of the players' various options and attempted to set the record straight about what specifically changed in this offer from the previous one. Never could I have imagined that Stern and Silver would take to Twitter in the coming hours and do this poor a job of explaining it.

About an hour after the Twitterview had mercifully ended, the NBA released a presentation on YouTube highlighting its proposal. The last time I looked at it Sunday night, it had 154 likes and 451 dislikes, but only 302 views. Which pretty much means the worst-case scenario: everyone has already made up their minds.
 
Posted on: November 11, 2011 1:20 am
Edited on: November 11, 2011 2:25 am
 

Stern offers 72-game season, few alternatives

NEW YORK -- The NBA made its last offer that will contain a 50 percent revenue share for the players Thursday night, and commissioner David Stern shifted the pressure to the union by tantalizingly attaching the possibility of a 72-game season starting Dec. 15.

"There comes a time when you have to be through negotiating, and we are," Stern said.

The players, expressing disappointment that the league did not respond with more system compromises after they'd signaled their willingness to accept a 50-50 revenue split, will bring the proposal to their player reps Monday or Tuesday to see if they will recommend the proposal to the union membership for a vote.

"The idea ... is to sit down with them and say, ‘You sent us out to get something, here’s what we’re coming back with,'" said Billy Hunter, executive director of the National Basketball Players Association. "'Now let’s sit down and decide what our next option is, what are we going to do.'"

The players' options are few, and none of them particularly appealing. They can put the deal to a vote, and if passed, they would be locked into a proposal that is an unmitigated victory for the owners -- one that shifts $3 billion over 10 years from the players to the owners and also dramatically restricts the rules governing team payrolls, player contracts and player movement. If the player reps tell the union leadership they want to reject the proposal, then Stern said the league's negotiating position will revert to a 47 percent share of revenues for the players along with a hard team salary cap and rollbacks of existing contracts -- the so-called "reset" proposal whose introduction at 5 p.m. Wednesday was delayed while the two parties bargained for 23 hours over the past two days.

"We have made our revised proposal," Stern said, "and we're not planning to make another one."  

Another outcome likely will begin to unfold Friday before the union even decides whether to accept the proposal -- and would continue to progress regardless of the outcome of next week's player rep meeting: Agents dissatisfied with the deal the union has negotiated and the intransigence of league negotiators already have more than 200 signatures on decertification petitions which are ready to be submitted to the National Labor Relations Board requesting a vote to dissolve the union, according to a person familiar with the plans.

Such a move would threaten to torpedo whatever support there is among the union membership to approve the owners' offer, and if it resulted in the players deciding not to vote on the proposal or voting it down, could throw the 2 1-2 year negotiations into the chaos of an anti-trust lawsuit -- virtually guaranteeing that the 2011-12 season would be lost.

If the player reps recommend that the rank-and-file vote on the owners' offer, that process could be accomplished within a matter of days -- as could approval by the owners' Board of Governors. A decertification vote would not be scheduled by the NLRB for about 45-60 days -- if the agency authorizes the vote at all. Typically, it does not do so when there is a pending unfair labor practices charge filed by employees.

Ultimately, the purpose of a decertification effort is securing an injunction or temporary restraining order from a federal judge as the result of an anti-trust lawsuit, which also would subject the league to the possibility of treble damages -- triple the players' economic losses resulting from the lockout. A faster route to the same outcome would be if union leaders stepped down via a disclaimer of interest, but that method faces a more difficult legal test in court.

If the owners' proposal passed, a new 72-game schedule would be drawn up -- deputy commissioner Adam Silver said those logistics already have been handled -- and a breakneck, one- or two-week free agency period would ensue along with shortened training camps and a limited preseason schedule. The marquee Christmas Day games would be preserved, and All-Star weekend would occur as scheduled Feb. 24-26 in Orlando.

"I'm hoping personally that's where we are now and we can get back to playing," Silver said. "But I understand from the union's standpoint it's a difficult pill to swallow right now. But that, once again, over time, we'll be proven right and this will be a better league for the players, the teams and the fans."

Union president Derek Fisher, sitting next to Hunter with several forlorn committee members standing behind him, seemed to hold out hope for a replay of what transpired over the past few days -- when the players successfully stopped the clock on Stern's Wednesday ultimatum to accept his previous proposal. After meeting with the reps, Fisher said the plan would be "either continue to negotiate currently from where we are or realize that maybe the NBA, this is their last, best offer and we’ll have to make decisions accordingly at that point."

Stern, who spoke with reporters after Fisher and Hunter, made it clear that the only choice was the one behind curtain No. 2.

"The negotiations are over," Stern said. "The negotiations on this proposal are over." 

Like most moves the league has made in the negotiations, which hit Day No. 133 Thursday since the lockout was imposed July 1, the characterization of this proposal as "revised" was a stretch, according to multiple people familiar with it. Among the tweaks to the unresolved system issues entering the past two days of talks, the owners agreed to increase the mid-level exception for luxury tax-paying teams to three-year deals starting at $3 million. The exception, which was for two years starting at $2.5 million under the previous proposal, would be available every other year for teams above the tax threshold.

Though full details of the owners' revisions weren't crystallized Thursday night, it is believed that they agreed to make sign-and-trade transactions available to tax-paying teams with certain restrictions and make other minor revisions to issues the players indicated they needed changed in return for their economic concession from 51 percent of BRI to 50: the luxury tax "cliff" that affects teams that wade into the tax and the repeater tax for teams that stay above the tax threshold for a third time in five years.

Given that teams have only remained over the tax that long seven times since the luxury tax was introduced in 2005, according to NBA TV, the issue wasn't one of substantial concern Thursday, according to sources in the negotiating room.

However, some new issues came to the forefront that concerned the players' negotiators when it became clear that the league's proposal would restrict teams from using a full mid-level exception -- four-year deals starting at $5 million -- if the signing itself pushed the team over the tax. Union negotiators want the mid-level restriction to kick in only if the team already is above the tax line before it uses the exception. The league's version is the one that is in the current proposal, according to a person who has seen it.

Nonetheless, Stern characterized the league's movement -- with the backing of labor relations committee chairman Peter Holt and the full committee, which was consulted via phone Thursday night -- as "several well-intentioned efforts to move to them on a variety of concerns."

But it is clear that chaos would ensue, not to mention catastrophic economic damage to both owners and players, if the proposal is rejected. As a result, Stern and Silver will have to consider whether their owners pushed too hard and tried to extract too thorough a victory -- one that would quickly be transformed into a loss for all sides if the deal is not one that can be sold to the players and agents who already are prepared to blow up the union.

"We moved as far as we could move," Stern said.

Despite the losses incurred by the players, not the least of which is an average $300 million-a-year giveback that absolves all the losses the league said it was suffering, the union did preserve several system provisions that would evaporate if the league reverted to its 47 percent proposal next week. Among the most important items, the union fought off the league's attempt to impose a hard team salary cap and maintained the structure of max contracts. And although the players would give back $3 billion over 10 years, with a conservative estimate of 4.5 percent annual revenue growth, player salaries would grow to nearly $3 billion by the 10th year of the deal.

And while salaries and benefits would stay flat at approximately $2.17 billion for the first two years of the deal, that provision would allow the league to keep the salary cap ($58 million) and luxury-tax level ($70 million) unchanged until adjustments for the new system would take hold in the third year.

"It’s not the greatest proposal in the world ... but I have an obligation to at least present it to our membership," Hunter said. "And so that’s what we’re going to do. We’ve got members of our executive board standing behind us, and they all agreed that we needed to sit down and discuss it with all of the reps and collectively decide what it is we should do."

Even if the players agree to the framework of the deal, Hunter said there are at least 30-40 so-called B-list issues that need to be resolved -- among them, the age limit, drug testing, player disciplinary measures and work rules such as practice schedules and days off. In addition, some players and agents will resist the notion of player salaries this season being prorated to 72/82nds based on a reduced schedule that resulted from the owners imposing a lockout -- especially since the big revenue generators like Christmas Day games, All-Star weekend and playoffs will be preserved.


 
Posted on: November 10, 2011 8:37 pm
Edited on: November 11, 2011 2:40 am
 

Progress on mid-level, but other hurdles emerge

NEW YORK -- Negotiators for the league and players' association made modest progress on the use of the mid-level exception for luxury tax-paying teams Thursday, but other guidelines governing exceptions and the tax level emerged as a new sticking point, three people briefed on the labor talks told CBSSports.com.

One of the people said league negotiators signaled a willingness to raise the so-called "mini mid-level" to three years starting at $3 million for teams above the luxury-tax level, to be available every other year. The previous offer was a two-year deal starting at $2.5 million, available every other year to tax teams. There was no indication union negotiators were ready to agree to this slight improvement in the owners' proposal, as it would reduce the mid-level exception for tax teams from last year's five-year, $37 million total to three years and $9 million for teams above the tax line.

UPDATE: After conferring with owners on the labor relations committee, commissioner David Stern was prepared to deliver a revised proposal to the union Thursday night based on the deal points negotiated over the past two days, a person with knowledge of the plans confirmed to CBSSports.com. The revised proposal, first reported by Yahoo Sports, was not the so-called "reset" proposal threatened if talks broke down, the person said.

Also Thursday, a new hurdle emerged in the discussion over when teams would face the new restrictions owners are proposing for teams above the luxury tax threshold. Two of the people briefed on the talks said owners were pushing for teams under the tax at the time of the transaction to be restricted from using the full mid-level -- four-year deals starting at $5 million -- if the signing put the team over the tax. In that case, the team would be restricted to use of the mini mid-level. Union negotiators want the new restrictions to be based on where a team's payroll sits in relation to the tax prior to the use of the exception -- not where it stands afterward.

After a 12-hour session Wednesday produced minimal progress, the two sides pushed past the eight-hour mark Thursday with the threat looming that league negotiators would pull their existing offer off the table and replace it with a worse one. The new offer, originally scheduled to be furnished to the players at 5 p.m. Wednesday but delayed due to the ongoing talks, would have featured a 53-47 economic split in favor of the owners and also would include a hard team salary cap and rollbacks of existing contracts. The two sides currently are negotiating off a league proposal that would give the players a 50 percent share of revenue and maintain a soft-cap system -- albeit with a vastly more onerous luxury tax system, more restrictions on exceptions, shorter contracts and smaller annual raises.

On Tuesday, union officials held a meeting with more than 40 players, including 29 team player reps, and signaled a willingness to meet the NBA on its 50-50 economic split provided that a list of five or six system-related issues could be resolved to the players' satisfaction. One of the roadblocks in the talks, according to multiple people involved in the process, is that players who previously did not realize how severe the owners' proposal was had become emboldened to push for significant concessions on the remaining system points. Even if and when a deal is reached, agents who have long opposed the concessions delivered to the league by union negotiators will be advising their clients to review the proposal closely and vote against it if it isn't substantially different than what the players learned about Tuesday.

"The players aren't going to be hoodwinked on this one," one such agent told CBSSports.com.






Posted on: November 10, 2011 3:19 pm
Edited on: November 10, 2011 4:05 pm
 

Bill Russell: Hard-liners jeopardizing NBA

NEW YORK – Hall of Famer Bill Russell said a solution to the NBA lockout is being jeopardized by hard-liners on both sides, and urged the parties to put aside their differences and reach a compromise “they can live with.”

“As a very interested bystander, I just hope they get a deal,” Russell told CBSSports.com in a phone interview. “And it will not come from the hard-liners on either side. I think they all know that. I have this theory that hard-liners are like true believers. And true believers think that any compromise is a retreat. And moving forward, that doesn’t cut it.”

Russell’s words carry weight – and not just because he is the most decorated champion in NBA history. The former Celtics’ star was among a group of 20 All-Stars who threatened to boycott the 1964 All-Star Game in Boston unless the NBA recognized the newly formed players’ union.

“Basically I was one of those guys that helped get the players’ association started,” Russell said. “And they've done wonderful things. I knew David Stern before he was commissioner, when he was associate attorney for the NBA. And if I remember correctly, he said, ‘I do not consider the players' association my adversaries. They're my business partners.’

“That's where, a lot of the things that David has done -- and I’ve known him up close -- have been beneficial for both sides,” Russell said.

Russell, 77, winner of 11 NBA titles, wanted to speak with CBSSports.com after he learned of union attorney Jeffrey Kessler’s comments in which he referred to NBA players being treated like “plantation workers.” Kessler, who made the comments to the Washington Post Monday night, apologized to several outlets Wednesday.

“I think that's an invalid accusation,” Russell said. “I think the whole deal is not about black and white. It's about money, OK? I don’t see any signs of being greedy. It's a typical negotiation and that's all it is. And there are a couple of reasons it's difficult, because there's hard-liners on both sides.

“But to me, the name-calling or vilifying the other side is a non-issue,” Russell said. “All that is is a distraction -- a distraction from the task at hand, which is reaching an agreement that neither side will probably be completely happy with. But that's the art of compromise.”

Russell said both sides “have their points,” but he views the key stumbling blocks as owners as trying to “protect themselves from the owners” and a battle between “the small-market teams and the big-market teams.”

“The players want their fair share of the business and the small-market owners don't want to keep losing money,” Russell said.

Russell said he hasn’t kept up with the details of the negotiation, but cautioned both sides that there’s “more to the agreement than just money.”

“I told Billy Hunter a few years ago: Bargain as hard as you can and make a deal,’” Russell said. “I really like and respect David Stern, and I really like and respect Billy Hunter and Derek Fisher. My whole life I've had a love affair with the NBA, and we've had some tough negotiations over the years. But I don’t think we ever vilified the other side. We just had tough negotiations.”

I thanked Russell for his input, wished him well, and told him I hoped to see him soon – at a basketball game.

“I'd like to see a basketball game right now,” he said.
Posted on: November 10, 2011 2:19 am
Edited on: November 10, 2011 2:35 am
 

'Not failing, not succeeding' ... and not dealing

NEW YORK -- The clock is stopped. Has the progress stopped, too?

After a 12-hour bargaining session that blew past an artificial deadline imposed by the league to reach a deal or pull its 50-50 proposal off the table, negotiators for the NBA and its players' association will convene again Thursday with what commissioner David Stern described as a "copious" list of issues to resolve.

"There are many other issues, many other issues of importance," Stern said early Thursday, referring to issues in addition to the handful of unresolved system points on which the two sides failed to make significant progress -- even after the players had signaled a willingness to meet the league on the economics of a 50-50 split of revenues.

"It just behooves us to make sure that all of those issues are put on the table, together with all of the system issues, together with the economic split, and see whether there can emerge from that rather lengthy list the ability to make a deal," Stern said. "Right now ... we're not failing and we're not succeeding."

Though union officials disputed the media's characterization of their economic stance, it was clear after Tuesday's players' meeting that the players were open to coming down from their previous offer in which they'd proposed receiving a 51 percent share of basketball-related income (BRI). Union president Derek Fisher had made clear that, in return for that willingness to negotiate further on the economics, it was expected that the league relax its position on several system-related deal points -- chiefly dealing with additional penalties for repeat offenders above the luxury tax, a prohibition of sign-and-trade transactions for tax teams, and the size, length and frequency of mid-level signings for tax teams.

But despite another dose of optimism in the agent and front-office community that the two sides were moving closer to a deal Wednesday, Fisher said there was "not as much (flexibiity) as we'd like" from league negotiators on the system issues.

"Obviously, we'd have a deal done if the right flexibiity was being shown," Fisher said. The bargaining session was arranged by Hunter and Stern after the players stared down the league's threat to replace its 50-50 offer with a 53-47 split in favor of the owners by 5 p.m. Wednesday. The so-called "reset" proposal also would revert to a hard salary cap and a rollback of existing contracts -- both elements of previous league proposals that had been negotiated away -- along with a litany of other draconian measures.

Stern said the league did not revert to that proposal Wednesday, but that it would happen whenever the current negotiating session came to an end if there was no deal.

"We weren't, in the middle of discussions, going to say, 'OK, we shouldn't have taken that break. Stop the clock, it's all over,'" Stern said. "We're trying to demonstrate our good faith and I think that the union is trying to demonstrate its good faith."

But the league's position Wednesday on the system elements the players have said they need in order to justify a 50-50 economic split -- which would shift $3 billion to the owners over 10 years and account for all $300 million in the league's stated annual losses -- was not one that siginified a give-and-take approach.

"They don't want to give," a person briefed on the talks said. "They just want to take."

The key point entering this latest round of talks -- perhaps the last round before either a deal is struck or the process is launched into the chaos of union decertification and anti-trust action -- was whether league negotiatiors would concede enough on the remaining system elements to create a deal that the union leadership can feel comfortabe presenting to its approximately 450 players for a vote.

But a comment from deputy commissioner Adam Silver painted a sobering portrait of defiance.

"The competitive issues are independent of the economic issues," Silver said. "Our goal is to have a system in which all 30 teams are competing for championships and, if well managed, they have an opportunity to break even or make a profit. We don't see the ability to break even or make a profit as a tradeoff for the ability to field a competitive team. All of those issues are still in place."
Posted on: November 9, 2011 11:53 am
Edited on: November 9, 2011 12:57 pm
 

Kessler apologizes, but still needs to go

NEW YORK -- In a lockout during which most days have been hideous for the players, this one had gone surprisingly well.

They'd presented a united front, made clear to David Stern's owners that they can have their 50 percent already and expertly shifted the pressure of this $4 billion fiasco back to their opposition.

By accepting the economic terms of the owners' offer Tuesday, the players were saying this to the world: If there's no deal Wednesday, Thursday or soon, it won't be because we weren't willing to compromise. It'll be because $3.3 billion over 10 years isn't enough for the owners. It'll be because the NBA wants to hold things up over some obscure system mechanisms that most fans can't relate to -- and for which clear compromises are available.

But here's the thing: Even on what had been a brilliant day for the players, it wasn't such a brilliant day -- for the same reason their days have grown increasingly miserable during this lockout. A great day, one that could go down as ultimately triggering the end of the lockout, was overshadowed by more unfortunate, divisive venom from the union's outside counsel and lead negotiator, Jeffrey Kessler.

Kessler, whose exploding-head theatrics and over-the-top rhetoric had twice contributed to significant blow-ups of the talks recently, told the Washington Post in an interview that occurred before the players' meeting and news conference Tuesday that the NBA was treating players like "plantation workers." No, really, he did.

“To present that in the context of ‘take it or leave it,’ in our view, that is not good faith,” Kessler told the Post in a telephone interview Monday night. “Instead of treating the players like partners, they’re treating them like plantation workers.”

Not only did this verbal assault lack cleverness -- it's a variation on the term commentator Bryant Gumbel had used to defame Stern recently, drawing universal scorn and ridicule -- but it was also offensive. It was not only offensive to Stern, but also to Kessler's clients, 80 percent of whom are black.

Once again, Kessler had poured the kind of needless gasoline on the lockout's smoldering fire, just as he's been doing for weeks.

“Kessler’s agenda is always to inflame and not to make a deal,” Stern said in a response to the Post. “Even if it means injecting race and thereby insulting his own clients. . . . He has been the single most divisive force in our negotiations and it doesn’t surprise me he would rant and not talk about specifics. Kessler’s conduct is routinely despicable.”

So you know what? At this important hour in the talks, a moment when the two sides are coming together at 1 p.m. in Manhattan to try to save the season, let's do something far more productive than Kessler shooting off his mouth and dragging this out for more lawsuits and billable hours.

Let's tell him to button up, get out of the negotiating room and hit the road.

Kessler, the union's lead negotiator and the lockout's chief destabilizer, need not show up at that meeting Wednesday. He needs to be fired.

“I’m sorry you feel that way,” Kessler told me on the phone Wednesday, even as the league and union were arranging the bargaining session. “But anybody who actually knows what my role has been in these and other negotiations, it has been to work and strive towards a deal. That’s what I’ve always done and that’s what I’ll continue to do.”

But all the evidence is to the contrary, and Kessler’s apologies Wednesday – released individually to various news outlets as opposed to en masse from the NBPA – didn’t change that.

“The comments that I made to the Washington Post took place late Monday night after a very long day,” Kessler said. “I look back on those comments as reported and I realize my choice of words was inappropriate. I am sorry about that. I intend to call commissioner Stern and apologize for my inappropriate choice of words.

“I made these comments as a passionate advocate for the players, but I can understand that they can be misinterpreted and viewed as being offensive,” Kessler said. “At this point, we need to put any distractions aside and work to try to get a deal to save the NBA season.”

Perfect advice, to put distractions aside – starting with Kessler. The NBPA should take Kessler’s advice and put him aside

“I did not intend to make any statement that would be interpreted as suggesting any type of racial issue,” Kessler said. “I don’t even remember if the comments were on the record or off the record, but in any event, my use of those words in that context was inappropriate.”

So Kessler had his say, and now I have mine: Go offend somebody else. Go bill somebody else. The players have paid you enough, and have paid enough for your inflammatory tactics that benefit only you.

When union executive director Billy Hunter sees Stern Wednesday, he should open the conversation with an apology on Kessler's behalf. Then, he should deliver news that will be music to the commissioner's ears: "We are no longer retaining Mr. Kessler's services."

Watch Stern skip from Olympic Tower to the East Side hotel where they’re bargaining. Watch how fast a deal gets done.

Let me be clear: Kessler shouldn't be fired only for bringing a plantation reference into the labor talks, or for having the poor taste to allude in any way to professional athletes being comparable to slaves. This was merely the last straw, the final indignity for players who are being led down a divisive, destructive path that has benefited Kessler and his law firm, Dewey & LeBoeuf, more than anybody.

Kessler is the same attorney, and Dewey & LeBoeuf the same firm, that represented the NFL players during their recent lockout. The NFLPA let Kessler play bad cop for a while, but union chief DeMaurice Smith recognized that he was too emotional and needed to take a back seat when it came time for a deal to get done.

Finally, it is that time in the NBA talks. Time for Kessler to step aside.

Having closed what was once a $10 billion economic gap with the owners over 10 years, the players don't need any more rhetoric. And they don't need Kessler's divisive tactics, offensive speech, and quite simply, annoying presence in the bargaining room. The deal is 99 percent done, the players won't be needing Kessler's services for a decertification lawsuit, and he should simply go away before he blows things up again.

After the two most recent implosions of the talks, Kessler stepped to the microphone and fanned the flames. After a meeting that broke down over system issues, Kessler said the talks had been "hijacked," and spun a fantastic fairy tale about how Trail Blazers owner Paul Allen had torpedoed the negotiations -- even though all he did was sit in the room and, unlike Kessler, not say a word.

Then on Sunday morning, at a time that called for decorum and a delicate touch to cleverly turn Stern's ultimatum right back on him, Kessler went bazookas again. He called the owners' tactics "threats" and "intimidation," and characterized Stern's portrayal of the league's proposal "a fraud."

Even some hard-line members of the union leadership have grown uncomfortable with Kessler’s flame-throwing approach.

If Kessler missteps this frequently and spectacularly during his brief encounters with reporters, just imagine how bad it gets when he's in a room yelling at Stern and his billionaire owners – and vice versa -- for 16 hours at a time.

The job of a lawyer is to advocate aggressively for his clients. But while I've accused Stern of speaking with a forked tongue, and accused the league's lead negotiator, Adam Silver, of double talk -- and while I fundamentally believe that the owners are pushing for way too much here -- Stern and Silver have at least conducted themselves professionally in public. Kessler? He's been professional, all right. A professional wrecking ball.

Kessler is right: The players can't afford any more distractions that could imperil this deal. Unfortunately, I'm not optimistic that the union will take my advice and kick Kessler to the curb, the way he was kicked to the curb late in the NFL negotiations. The union, to its discredit, decided not to issue its own apology for Kessler's offensive comments. When I asked Kessler if he had any intentions of stepping aside, he said, “Absolutely not. If you knew the real dynamics in the negotiating room, you wouldn’t say that.”

But that doesn't change the fact that it's time for Dr. Doom to go.

There are level-headed, respectable professionals on the union’s negotiating team, and they will take it from here. Hunter, Derek Fisher and general counsel Ron Klempner are more than capable of closing the deal. Klempner is the one writing the union's proposals, anyway, has the best grasp of the subject matter, and has consistently displayed the kind of reason and spirit of compromise that is conducive to getting a deal done.

Kessler? You can go find some more people to offend, more athletes to prey on, and more hours to bill. Your services, and your inflammatory tactics, are no longer needed here.

To borrow the signature phrase of the lockout, how u? Or better yet, how u sleep at night?
 
 
 
 
The views expressed in this blog are solely those of the author and do not reflect the views of CBS Sports or CBSSports.com