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Tag:National Basketball Players Association
Posted on: November 23, 2011 3:04 pm
Edited on: November 23, 2011 6:52 pm
 

Talks resume; is there time?

NEW YORK -- It began with sources indicating that back-channel discussions were under way last week, then took the next logical step when the identity of the third-party intermediary facilitating the resumption in talks was revealed.

Now, negotiations to save the NBA season are back on in earnest, with the focus on ending the lockout with enough time to begin the 2011-12 season by Christmas, as CBSSports.com reported Nov. 18.

Talks resumed Tuesday and are expected to continue Friday after a break for the Thanksgiving holiday, two people with knowledge of the discussions said. Yahoo Sports first reported the formal resumption of negotiations, and the New York Times reported that a Christmas Day tipoff would result in a 66-game season that would end in late April with the NBA Finals pushed back about one week.

With the nearly five-month lockout now a legal matter, the talks are taking place in the form of a litigation settlement. Is there time? Sources familiar with the negotiations maintain that if both sides are serious about finishing the negotiations that fell apart Nov. 14, when the union dissolved and the players began pursuing antitrust damages, a deal could come together relatively quickly.

Billy Hunter, director of the National Basketball Players Association, mentioned Tuesday at the players' Thanksgiving turkey giveaway in Harlem that he expected a settlement conference to take place under the supervision of a federal magistrate in Minnesota -- where the players' antitrust claims have been consolidated -- and that it could happen as early as next week. So if lawyers and negotiators could arrive at some semblance of an agreement by the end of the weekend, it's conceivable that the settlement could be finalized by early next week -- leaving time to open the season by Christmas, with not a minute to spare.

The league would require about a 30-day window to finalize the deal and hold an abbreviated free-agent period, preseason schedule and training camps before play could begin.

Both the league office and the office of the former players' association were in lockdown mode Wednesday, a sure sign of the serious nature of the discussions. Commissioner David Stern hasn't spoken publicly in eight days, and the NBA had no comment on the negotiations except to say that the league "remains in favor of a negotiated resolution," a league spokesman said.

Time will be especially of the essence since the settlement couldn't take the form of a collective bargaining agreement until the players voted by simple majority to reform the union and the owners agreed to recognize the union as the players' bargaining agent. The deal would then go to the players and owners for a ratification vote. All of this would have to be done with extraordinary speed.

As we well know, expedience has not been a hallmark of these negotiations. But the time to deal, sacrifice and show all your cards is now if either side wants to have a season instead of costly, lengthy antitrust litigation with a very uncertain outcome for both sides. And the remaining issues to be agreed upon -- principally restrictions on sign-and-trades and mid-level signings that the league is trying to place on high-spending teams -- are relatively minor compared to the big-ticket item of a 50-50 split of revenues that owners and players already have negotiated.

When the players rejected the owners' latest ultimatum on Nov. 14, they also were concerned about accelerated tax rates the league was proposing for teams that stay above the luxury tax line for multiple years and the interpretation for when a team is considered to be above the tax threshold for the purposes of using exceptions.

As a matter of protocol -- and legality -- former union president Derek Fisher is not participating in the talks. Fisher would only rejoin the picture if and when the union were reformed to approve a possible settlement. So with the talks in the hands of the lawyers, the question of what the starting point is in the negotiations becomes an important one.

When last the two sides bargained, they had basically agreed on a 50-50 split of revenues and had about a half-dozen system-related issues that separated them. The first question is whether or not each side's economic position changes when the negotiations resume. Hard-liners on both sides say the positions should harden, due to the economic losses that have been incurred and the threat of expensive litigation. But Jay Himes, a longtime antitrust attorney and partner at Labaton Sucharow, said the most expeditious result would come if the two sides simply picked up where they left off.

"I don't think anybody will dramatically reassess their position and say, 'Oh, wow, suddenly the calculus has changed considerably," Himes said. "... You can say, 'Well, now it's an antitrust lawsuit, give the players an extra 15 percent because they went out and got themselves a star litigator,' as they did. It sounds good, I suppose, for public consumption, but the science is not nearly that precise when you get in the negotiating room."

And neither is the risk assessment for either side. While the players may feel emboldened temporarily by the prospect of a potential $6 billion damages judgment against the owners if the season were lost, Himes cautioned that leverage can shift "from day-to-day and from decision-to-decision." And while he believes the players "on the merits, have a better shot" at ultimately winning in court, Himes said losing the entire season would be the "worst-case scenario" for them.

"From the players' point of view, at some point the season just dies, and that's really bad for them because most of them don't have good sources of outside income," Himes said. "And if the image of the NBA does suffer from a prolonged lockout, the opportunities for endorsements aren't as attractive because the advertisers don't want to pay for a tarnished brand. So that's a real disaster for the players. I'm sure they would not like to see the season killed."

Himes, co-chairman of Labaton's antitrust group and former antitrust bureau chief in the New York attorney general's office, pointed out another complicating factor for the owners that has flared up to varying degrees throughout the 2 1-2 years of bargaining talks: dissension among high-revenue and low-revenue teams. According to a person with knowledge of ownership activities, the owners recently held another internal discussion about how more money will be diverted to help struggling teams in small markets. Even at this late date, with another month of games and quite possibly the entire season in jeopardy, the owners still were not able to reach agreement among themselves on revenue sharing, the person said.

"That laundry is not necessarily being aired at the moment, but I'm sure that it's affecting the negotiating position of the teams when they leave the players and go back into their own conference room and start talking about where the money is coming from and going to," Himes said.

More than anything, the greatest and most relentless driving force behind this renewed push to get a deal is something neither side can control: the calendar. If the players can count on roughly the same schedule the NFL players got via the same U.S. District Court in Minnesota, they're looking at more than three months before an appeal would even be heard by the 8th U.S. Circuit Court of Appeals. By then, Christmas games would be a distant memory, and the entire season would be toast.

Thus, the time is now to salvage it. 

Posted on: November 17, 2011 7:20 pm
 

GMs served with papers in players' suit

A procedural but interesting wrinkle in the players' antitrust lawsuit in Minnesota emergered Thursday. In addition to filing the complaint in district court, the plaintiffs' attorneys served papers via first-class mail on all 30 NBA general managers, according to court documents in the case.

The certificate of service was amended in the court records Thursday to add the Miami Heat. When the lawsuit was filed Tuesday, the Heat were left off the list of team general managers served with the complaint. For unknown reasons, the attorneys served the papers on Heat executive and salary cap expert Andy Ellisburg, rather than team president and Hall of Famer Pat Riley.

Also, the Knicks' copy of the lawsuit may get lost in the mail. It was sent to Donnie Walsh, who is no longer the Knicks' team president.

Sending the complaint to team general managers does not mean they're liable in the lawsuit. It's simply a procedural step, and also one of many ways that attorneys can and do annoy defendants in civil lawsuits. It is not known if the same procedure was followed in the separate antitrust lawsuit filed in California Tuesday because the government's online database had not finished loading for that case.

In other developments Thursday, commissioner David Stern updated the full Board of Governors via conference call on the state of the collapsed collective bargaining talks and the litigation. In addition to the antitrust lawsuits filed against the NBA in California and Minnesota, the league has a pending case in the Southern District of New York in which it is asking a federal judge to rule that the lockout cannot come under antitrust attack by virtue of the players dissolving the National Basketball Players Association.

Stern explained the meaning of the two antitrust lawsuits, but it is likely that a strategy session discussing how to proceed won't happen until owners on the labor relations committee meet or have a call themselves, according to two people familiar with the league's procedures.



Posted on: November 16, 2011 3:50 pm
 

NBA responds to players' disclaimer

NEW YORK -- Lawyers for the NBA and players now suing the league for antitrust claims exchanged updated arguments in their pending federal case in New York in the hours after the National Basketball Players Association dissolved as a union Monday.

Under order from U.S. District Judge Paul Gardephe, the NBA furnished a letter Monday offering further proof that its request for declaratory judgment that the lockout was legal was based on adequate facts. The letter was due Monday, and thus included up-to-the-minute arguments in the aftermath of the players' union disclaiming interest to pave the way for antitrust lawsuits, two of which were filed Tuesday.

The players' response was ordered by Nov. 23, but players' attorney Jeffrey Kessler responded Tuesday.

Unsurprisingly, the league argued that the NBPA's decision to disclaim and take up its case with the NBA in federal court under antitrust law further supported the NBA's contention when it filed the lawsuit Aug. 2 that the players were going to do that all along.

"On more than two dozen occasions ... the union has threatened to abandon collective bargaining and commence antitrust litigation to challenge the lockout," league attorneys wrote. "And the  complaint alleges that the union's threats of antitrust litigation are having a direct, immediate and harmful effect on the parties' ability to negotiate a new collective bargaining agreement."

League attorneys sought declaratory judgment from the U.S. District Court for the Southern District of New York that the lockout could not be challenged under antitrust law, asserting that the NBPA's harboring of that threat was hindering negotiations and that a new CBA would be more easily reached if the court pre-emptively removed the threat. In a motion to dismiss, attorneys for the NBPA argued that the court lacked jurisdiction because there was no "ripe controversy" -- since at the time the NBA sued, the union had yet to decertify or seriously consider it. Kessler reiterated those arguments Tuesday.

 "It was only at that moment that the NBPA decided to disclaim its interest in being the collective bargaining representative of the players -- a decision that was uncertain until it was made," Kessler wrote.

Whether or not the NBA's lockout can be legally challenged under antitrust law is only half the story, but it's a very important half. Lawsuits filed in California and Minnesota Tuesday also seek damages -- a step that seemingly would be affected by the New York court's ruling on whether the lockout was legal in the first place. It's all complicated -- far more complicated, costly and risky to both sides than it would've been for the parties to sit in a room and finish a collective bargaining agreement that was, by any measure, 95 percent done when the talks broke down.

"I still can't believe that any of the lawyers on either of the sides is confident enough ... that they're willing to blow up the season, spend hundreds of thousands -- if not more -- on legal fees, and risk either treble damages or billions in player salaries," said Gabe Feldman, director of the Sports Law Center at Tulane University.

Posted on: November 15, 2011 8:24 pm
Edited on: November 15, 2011 11:45 pm
 

Players sue NBA for antitrust violations

NEW YORK -- NBA players sued the league alleging antitrust violations Tuesday, in part using commissioner David Stern's own words against him in making their case that the lockout is illegal.

With two antitrust actions -- one in California naming superstars Carmelo Anthony and Kevin Durant among five plaintiffs, and another in Minnesota naming four plaintiffs -- the players are seeking summary judgment and treble damages totaling three times the players' lost wages due to what lead attorney David Boies referred to as an illegal group boycott.

"There's one reason and one reason only that the season is in jeopardy," Boies told reporters at the Harlem headquarters of the former players' union, which was dissolved Monday and reformed as a trade association to pave the way for the lawsuits. "And that is because the owners have locked out the players and have maintained that lockout for several months. ... The players are willing to start playing tomorrow if (the owners) end the boycott."

The California case, filed Tuesday night in the Northern District, named plaintiffs who represent a wide array of players: Anthony, Durant and Chauncey Billups (high-paid stars); Leon Powe (a mid-level veteran); and Kawhi Leonard (a rookie). The plaintiffs in a similar case filed in Minnesota are Caron Butler, Ben Gordon, Anthony Tolliver and Derrick Williams.

Boies said there could be other lawsuits, and at some point, they could be combined.

It is possible, Boies said, that the players could get a summary judgment before the NBA cancels the entire season -- essentially a two-month timeframe. By that point, with the clock starting on potential damages Tuesday -- which was supposed to have been the first pay day of the season for the majority of players -- treble damages could amount to $2.4 billion.

"We would hope that it's not necessary to go to trial and get huge damages to bring them to a point where they are prepared to abide by the law," Boies said.

A statement released by the league office Tuesday night, spokesman Tim Frank said: "We haven't seen Mr. Boies' complaint yet, but it's a shame that the players have chosen to litigate instead of negotiate. They warned us from the early days of these negotiations that they would sue us if we didn't satisfy them at the bargaining table, and they appear to have followed through on their threats."

Earlier, Boies seemed to have anticipated this response, noting that the NBA's lawsuit in the Southern District of New York -- in which the league sought a declaratory judgment pre-emptively shooting down an eventual dissolution of the union -- came first.

"The litigation was started by the owners," Boies said. "... This case was started months ago when the NBA brought it there."

The crux of the players' argument is that, absent a union relationship to shield them from antitrust law, the 30 NBA owners are engaging in a group boycott that eliminates a market and competition for players' services and are in breach of contract and violation of antitrust law. The players are seeking to be compensated for three times their lost wages as permitted by law, plus legal fees and any other relieft the court deems necessary and appropriate.

One of the many issues to be resolved is where the lawsuits ultimately will be heard. The NBA almost certainly will file a motion seeking that the players' complaints be moved to the Southern District, which is in the more employer-friendly 2nd U.S. Circuit Court of Appeals. The Northern District in California is in the more employee-friendly 9th Circuit, while the Minnesota case was filed in the district residing in the 8th Circuit, where the NFL players ultimately fell short in their quest for a permanent injunction lifting the lockout.

The NBA players are not seeking a permanent injunction; rather, Boies said they are pursuing the more expeditious and fact-based summary judgment, which could save months of legal wrangling.

UPDATE: Boies asserted that the plaintiffs have the right to choose which appropriate court has jurisdiction over their lawsuit, and that the NBA's lawsuit in New York was premature -- since the NBA players had never before in their history of union representation since the 1950s disclaimed interest or decertified until Monday. In contrast to the NBA's argument that dissolution of the union and an antitrust action were the players' goals all along, the lawsuit laid out that the players participated in bargaining with the league for more than four years after they were first allegedly threatened with massive rollbacks of salaries and competition for their services. Boies said the players had continued to bargain for months while locked out, offering a series of economic concessions totaling hundreds of millions of dollars until they finally reached the owners' desired 50-50 split in the final days of negotiations.

Unlike the NFL Players' Association's failed disclaimer of interest and antitrust action, in which the players' case was harmed by the lack of certainty over whether the collective bargaining process had ended, Boies said there was no disputing that bargaining talks had concluded in the NBA -- and that Stern himself had ended them by presenting a series of ultimatums and "take-it-or-leave-it" offers that the players could not accept.

"They had an opportunity to start playing with enormous concessions from the players," Boies said. "That wasn’t enough for them. If the fans want basketball, there’s only one group of people that they can get it from, OK? And that’s the owners, because the players are prepared to play right now."

The NBA undoubtedly will argue that it was the players who ended bargaining when their union disclaimed, and that the disclaimer is a sham, or a negotiating tactic as opposed to a legitimate dissolution.

The lawsuits came one day after the players rejected the league's latest ultimatum to accept their bargaining proposal or be forced to negotiate from a far worse one. The National Basketball Players Association at that point disclaimed interest in representing the players any longer in collective bargaining with the league after failing to reach an agreement during the 4 1-2 month lockout that was imposed by owners July 1.

In the California case, Boies, his partner, Jonathan Schiller, and players' attorney Jeffrey Kessler laid out a meticulous case that the collective bargaining process had been ended by the owners and that the players had no choice but to dissolve the union and pursue their case via antitrust law. They laid out a series of concessions the players made in an effort to reach a deal, including a "massive reduction in compensation" and "severe system changes that would destroy competition for players."

The lawsuit quoted Stern's own demands when he issued two ultimatums to the union during the final week of talks, threatening the players both times to accept the offer (with a 50-50 revenue split and various restrictions on trades and player salaries) or be furnished a worse offer in which the players' salaries would have been derived from 47 percent of revenues in a system that included a hard team salary cap and rollbacks of existing contracts -- all deal points the two sides had long since negotiated past and abandoned.

Asked if Stern made a mistake issuing the ultimatums that ended the talks, Boies said, "If you're in a poker game and you bluff, and the bluff works, you're a hero. Somebody calls your bluff, you lose. I think the owners overplayed their hand."

In the California lawsuit, the players' attorneys alleged that the owners' bargaining strategy was hatched during a meeting between league and union negotiators in June 2007. In that meeting, the lawsuit alleged, "Stern demanded that the players agree to a reduction in the players' BRI percentage from 57 percent to 50 percent," plus a more restrictive cap system. Stern and deputy commissioner Adam Silver told Hunter, according to the lawsuit, that if the players did not accept their terms, the NBA was "prepared to lock out the players for two years to get everything." Stern and Silver assured Hunter in the meeting that "the deal would get worse after the lockout," the lawsuit alleged.

The threats of getting a worse deal after the lockout if the players didn't accept the owners' terms were repeated in a letter to the union dated April 25, 2011, according to the lawsuit -- which then laid out the contentious, sometimes bizarre, and almost indisputably one-sided negotiation that transpired over the next few months.

"I will give the devil their due," Boies said. "They did a terrific job of taking a very hard line and pushing the players to make concession after concession after concession. Greed is not only a terrible thing, it's a dangerous thing. By overplaying their hand, by pushing the players beyond any line of reason, I think they caused this."

Boies said it was in neither side's best interests for the action to proceed to trial, which could take years and multiply the threat of damages against NBA owners. Even in their current capacity as members of a trade association, the players could have a settlement negotiated on their behalf among the attorneys for both sides. The settlement could then take the form of a collective bargaining agreement, but only after the majority of players agreed to reform the union and the owners agreed to recognize it.

Another option would be for a federal judge to require both sides to participate in mediation under the auspices of a federal magistrate; attendance would be required, though the results wouldn't be binding.

"There's lots of ways to get started, but it takes two to tango," said Boies, who once sued Microsoft in an antitrust case and represented Al Gore in his failed 2000 presidential bid based on a disputed vote count in Florida.

"If you've got somebody on the other side who is saying, 'It's my way or the highway, it's take it or leave it, this is our last and final offer and you will not see negotiation,' you can't resolve this," Boies said. "That, I will predict, that will stop, OK? There will come a time when the league faces the reality of the exposure that they face under the antitrust laws, the exposure that they face because of fan dissatisfaction with their unilateral lockout, the exposure they face by having other people in the business of professional basketball. And they will believe it is in their best interests to resolve this case.

"I can't tell you when that will happen," Boies said. "But I will tell you that it will happen, because those forces are too strong for anybody to resist indefinitely."





Posted on: November 15, 2011 4:08 pm
 

Decert plans continue; multiple lawsuits?

NEW YORK -- As lawyers representing NBA players who plan to sue the league for antitrust claims weighed their legal options Tuesday, other attorneys involved in the decertification movement still were planning to file players' petitions seeking to dissolve the union on their own, a person involved in the process told CBSSports.com.

While the letter of disclaimer sent by former union executive director Billy Hunter to David Stern Monday effectively dissolved the union and paved the way for an antitrust action against the league, agents representing some 200 players who already have signed decertification cards believe it will help the players' cause to submit them to the National Labor Relations Board. The agents believe that a statement from far more than the 30 percent of players required to initiate a vote ousting the union leadership will help the union's argument in federal court that the disclaimer of interest was a last resort and not a negotiating tactic or a "sham."

"The players gave up everything they could possibly give, and they still couldn't get a deal done," the person involved in decertification said.

In addition, the filing of decertification petitions would be proof that Hunter had no choice but to disclaim interest in order to get an expedited remedy for players. If he hadn't, the players were going to vote him out anyway -- which would've resulted in a more lengthy legal process since the players would've had to wait 45-60 for the NLRB to authorize an election. For the players to move forward with their decert case, the NBPA's unfair labor practices charge against the league -- filed in May and amended in July, when the NBPA was still a union -- would have to be withdrawn.

Meanwhile, one of the options the players' antitrust attorneys are considering is whether to file multiple lawsuits against the NBA. The main class action would be on behalf of players under contract, and logically would not include a player whose last name begins with the letter "A." Plaintiffs are listed alphabetically, and the name with the most impact would be that of future Hall of Famer Kobe Bryant -- although Bryant's level of interest in being listed as the lead plaintiff is unknown. Bryant, in the final few years of his career, has deliberately taken a secondary role in the labor talks, preferring instead to allow players who would be most affected by the outcome to take the lead.

A second potential lawsuit would be specifically on behalf of the league's rookies and free agents, none of whom is under contract. The legal reasoning flows from the majority opinion by the 8th U.S. Circuit Court of Appeals in the NFL Players Association's antitrust lawsuit against the NFL. The panel made a distinction in its opinion about rookies and free agents that some antitrust lawyers have interpreted as a sign that courts would be more likely to determine that the NBA's lockout is illegal within the narrow scope of players who are not under contract. In the NFLPA's case, the 8th Circuit strongly implied that employees not under contract could not be locked out, but did leave room for those players to be included in the lockout once they were given a chance to market their services and negotiate contracts with teams.

The players' goal in the antitrust action is to get a summary judgment in federal court -- either in the Southern District of New York, where the NBA already has established the venue with a pre-emptive lawsuit against the NBPA, or a court in a more friendly appeals circuit -- that would include treble damages (three times the players' monetary losses). If such a judgment could be achieved in 60 days, as Hunter predicted Monday, the players will have missed paychecks totaling about $800 million -- making the potential for treble damages $2.4 billion.




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.
 
 
 
 
 
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