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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?
Posted on: November 8, 2011 8:53 pm
Edited on: November 8, 2011 9:07 pm
 

Hunter 'cool' with Pierce's decert movement

NEW YORK -- Union chief Billy Hunter said Tuesday he's "cool" with Paul Pierce leading a decertification movement within the National Basketball Players Association and is "not at all opposed" to the Celtics star taking the lead.

"I think Paul is kind of frustrated with the process," Hunter said after a news conference in which the players said they were rejecting the league's latest take-it-or-leave-it proposal. "Paul has been at the bargaining table and he doesn’t feel that we’ve been making any kind of progress. And so he thought that maybe that’s necessary. We don’t have a lot of options and that’s the option Paul was pushing – still is pushing."

Asked in a small group of reporters if he's cool with that, Hunter said, "Of course. Listen, I’m cool with Paul and all these guys. I think it’s very important. I’m happy that Paul and the others are involved in the process. That’s always been the problem with athletes, that a lot of stuff is foisted on them and they have no input. Paul has been actively engaged, he understands, he’s been in five or six of our negotiating sessions, he talks to me, and when they had the (decertification) calls, he called and let me know that they were having the calls. And I said, 'Hey, I'm not at all opposed to you doing that.' ... I endorse what Paul did."

Hunter later said in an interview on NBA TV that Pierce informed him Tuesday that about 200 players have committed to signing a petition seeking a decertification election if a deal is not consummated before commissioner David Stern's 5 p.m. ET Wednesday deadline to accept the owners' latest proposal -- which includes the same 50-50 split of revenues the union is now prepared to accept.

With owners almost certainly following through on their threat to forward a worse proposal to the players if they didn't accept the one on the table, the talks could be thrust into chaos even if Hunter is successful in securing another bargaining session Wednesday. Once the decertification petition is filed with the National Labor Relations Board, the players seeking to dissolve the union would have to wait 45-60 days for the agency to hold an election -- a period during which negotiations with the NBPA could continue.

But given how long Hunter has been waiting for the NLRB to act on the union's unfair labor practices charge, filed in May and amended in July, it's anyone's guess as to whether a decertification threat could be carried out and reach a conclusion in time to save the season. In general, the NLRB does not authorize decertification petitions and or schedule elections while a union has an unfair labor practices charge pending.

"It’s like waiting for the fairy godmother," Hunter said, chiding the NLRB for failing to act on the union's charge, for which a complaint against the NBA could result in a federal injunction lifting the lockout. The NBA subsequently filed am NLRB charge of failing to bargain in good faith against the union, and there's been no action on that one, either.

"I'm hoping that they will get some expedition, particularly if they’re reading in the papers all the things that are happening," Hunter said. "It’s getting hectic on both sides of the table. It’s a federal agency beaurocracy and maybe they think it’s too hot a potato, they don’t want to touch it."

Or just as likely, the NLRB has been hoping the two parties can reach a new collective bargaining agreement on their own without the agency's intervention. If rational minds prevail, that's still possible -- given that the league and union have finally closed what was once a multi-billion-dollar economic gap and have only a handful of system issues, some fairly minor, standing in the way of a deal.



Posted on: November 8, 2011 6:54 pm
Edited on: November 9, 2011 12:54 am
 

Players call Stern's bluff

NEW YORK -- Calling David Stern's bluff with the backing of 29 player reps, the National Basketball Players Association rejected the NBA's latest offer Tuesday and requested an additional negotiating session before the league's self-imposed 5 p.m. Wednesday deadline to accept their proposal or subject themselves to a far worse deal.

"Our orders are clear right now," union president Derek Fisher said, flanked by more than 40 players. "The current offer that is on the table from the NBA is not one we are able to accept."

Billy Hunter, the union's executive director, said he planned to call Stern and request further bargaining in the hopes of closing the gap on a list of at least five system-related issues that are standing in the way of a deal. Stern, speaking on NBA TV Tuesday night, said he "always" takes Hunter's calls.

But there is little if any reason to expect Stern not to follow through on his threat to retract the owners' latest proposal offering the players a 50 percent share of revenues and replace it with a far more punitive one -- including a 53-47 share in favor of the owners, a hard team salary cap, rollbacks of existing contracts, and backtracking on a litany of other system issues the two sides previously had agreed upon.

"We'll just wait and see what it is the league does," Hunter said. "I would assume that if we end up being able to reach a deal -- whether it's reached tomorrow or reached four days from now -- even if they were able to impose this artificial threat of rolling back to 47, I'm convinced that they would more than likely, gladly come back and do the 50-50 deal if that's a possibility."

Hunter and Fisher said little time was spent discussing the issue of decertification, a nuclear tactic that hard-line players and agents have been pushing for the past few weeks. Hunter said the measure, which would effectively dissolve the union in an attempt to pressure the league with the threat of anti-trust damages, was "not a worthwhile endeavor."

Hunter also said he was hearing that, in addition to reverting to a more owner-favorable proposal by Wednesday, Stern also was planning to cancel games through Christmas if a deal isn't reached by 5 p.m. Such cancellation threats are largely immaterial, but there is no question the talks have arrived at a junction that will test the resolve of hard-line owners and invite the potential for chaos if dissident agents and players formalize their push to decertify by getting 30 percent of players to sign a petition to be filed with the National Labor Relations Board.

"It's either going to be a collision of the radicals or a collision of the rationals," a member of the players' executive committee told CBSSports.com.

In addition to Fisher and the rest of the players' executive committee, the meeting was attended by reps for 29 teams, with the biggest star presence being Carmelo Anthony -- whose extend-and-trade arrangement that brought him from Denver to the Knicks last season the owners are seeking to ban in the next CBA.

But neither Melo nor committee member Chris Paul was the biggest star in the building. That was former President Bill Clinton, whose talents for diplomacy are sorely needed.

"I hope it gets worked out because we all want to see basketball," said Clinton, who didn't participate in the meeting but hugged Fisher afterward while handing out to players copies of his new book -- ironically titled, "Back to Work."

The call from Hunter to Stern to reignite the talks and close the gap on essentially a list of five system concerns that the players have was predicated on Hunter and Fisher saying Tuesday that the players are willing to meet the NBA on the economics of a 50-50 split. When talks broke up early Sunday, the players were asking for a 51 percent share of BRI -- with 1 percent going to a benefits fund for players when they retire.

A person directly involved in the negotiations said the union was prepared to go to 50 percent while seeking a creative way to fund a benefits plan for retirees that doesn't come out of the BRI pie.

"I'm the one who's going to call him," Hunter said. "I'll probably call him tonight to see if we can get together some time tomorrow. ... If he says no, I'll just have to deal with that. I'll be denied the opportunity to talk to David."

Hunter said that with a smile and a joking tone, obviously recognizing that this isn't his first rodeo with Stern. He is making a much more serious bet that Stern has room to negotiate further on the system issues, and based Hunter's hunch that an offer from the players to move down to the league's desired 50-50 split would get that done.

With a risk, Hunter acknowledged.

"It's getting hectic on both sides of the table," Hunter said.

Having negotiated with Stern for 15 years, Hunter passed the hot potato right back to him Tuesday with the hope that his longtime bargaining adversary has enough juice to get hard-line owners to look past the obligatory follow up on the threat of worsening the proposal and put NBA players back on the court -- and people in the seats -- with a few system compromises that the players say they need.

I asked Hunter, knowing Stern for as long as he has, how he expected the commissioner to react to having his bluff called Tuesday.

"I don't know that we've ever called his bluff," Hunter said.

"I think you just did," I replied.

"It's yet to be seen," Hunter said. "My concern and what I'm trying to determine is whether or not David may be a hostage in his own camp. That's what kind of concerns me, what's going on over there. He may not have the sway that he once had. He's been a hell of a commissioner, but I'm not sure."

Considering the stakes, and the pressure he faces from the strident wing of the union that wants to decertify, Hunter was in a frisky mood -- even taking a shot at Hall of Famer Michael Jordan when asked what advice he'd give the now-Charlotte Bobcats owner.

"I'd give him the same advice he gave Abe Pollin," Hunter said, referring to Jordan infamous clash with the late owner during the 1998-99 lockout, when Jordan told him to sell his team if he couldn't make a profit. "He should take his own advice."

Rhetoric aside, talks to save the 2011-12 season have reached critical mass, a time when reason is needed more than ever. And regardless of how and when Stern follows through on his threat Wednesday, the wheels already are in motion to bring the two sides together and finish the deal, now that an economic gap that was once nearly $10 billion over 10 years finally has been closed.

According to a person involved in the talks, the players are prepared to submit a proposal to the league with the 50-50 split owners want and the system changes the players need to make the deal more palatable. Over 10 years, the players' proposal will more than account for the owners' stated economic losses of $300 million a year -- shifting $3.3 billion from players to owners compared to the previous 57 percent share the players received.

In return, the players want the owners to come to them on the system issues. Chief among are sign-and-trades and the size and length of mid-level exceptions for luxury-tax-paying teams; a reconfiguring of the luxury tax "cliff" that teams wading into the tax experience by giving up tax money and having to pay it; the severity of the additional luxury tax for repeat offenders; and the escrow system. The latter point involves the league's proposal to roll over 3 percent per year of the escrow they withhold from player paychecks to account for a possible overage in their share of BRI.

"We’re open-minded about potential compromises on our number," Fisher said. "But there are things in the system that are not up for discussion, that we have to have, in order to be able to get this season going again."

But before that happens, prepare for more foot-stomping, more threats, more rhetoric -- and yes, more asshattery.

The owners have a willing accomplice to negotiate with and deliver them more than the $300 million a year in losses they've spent two years seeking. The players have a union that's preserved a soft cap, guaranteed contracts, existing max contract structures and is trying to finish the job by preserving a healthy mid-level exception for all teams and fight off efforts to corral teams as they wade into the tax and stay over it for three out of five years.

Yet some of those players -- as many as 200, according to reports Tuesday night -- are ready to detonate the talks in favor of a decertification tactic that could jeopardize the entire season and, by the way, has never been successful in the history of professional sports.

It all has the potential to blow the deal to high heaven at the very moment when it is on the one-foot line. And given the chaos that will ensue, those very owners may actually enjoy watching that for a while.

Calm before the storm? This is the storm before the calm. A collision of radicals or a collision of rationals.

Or maybe a little bit of both before it's all over.
Posted on: November 7, 2011 9:44 pm
Edited on: November 7, 2011 9:53 pm
 

To vote or not to vote?

NEW YORK -- As the players' union prepared to host representatives from all 30 teams Tuesday, a person with knowledge of the plans told CBSSports.com that executives from the National Basketball Players Association will be open-minded about whether the league's latest proposal should be put to a vote by the full membership.

The primary purpose of the meeting will be to educate player reps about the details and ramifications of the NBA's 50-50 proposal, which commissioner David Stern has told executive director Billy Hunter in writing that he has until 5 p.m. Wednesday to accept or be faced with a far worse offer. Player reps also will be informed of the other options at their disposal if the union rejects the deal and the league forwards what it is calling its "reset" proposal -- which includes a 47 percent share of revenues for the players, a hard salary cap and rollbacks of existing contracts, among other system restraints that are far worse than those in the standing proposal.

But union officials also expect that player reps will have polled their teammates and will present their views as to whether players, as a whole, want to vote on the deal, reject it, or seek a vote to dissolve the union through decertification and take their fight to the federal courts.

"I'm expecting a diversity of opinions, quite frankly," said the person with knowledge of the format for Tuesday's meeting.

This was the case Monday, as players were active in expressing their opinions to their agents and via social media, with the only consensus being that players are divided on what the next steps should be. Some, like Kevin Martin of the Rockets and Steve Blake of the Lakers, are pushing for a vote. Others, like Cavaliers player rep Anthony Parker, say they're opposed to the deal and would vote against it.

Nothing will be known for sure until the player reps meet with union leaders Tuesday. And to some extent, further conversations will be required between the NBPA and NBA negotiators to clear up certain technical aspects of the proposal -- such as a provision the league has asked for to account for a scenario in which player salaries exceed their 50 percent guarantee by more than the 10 percent escrow withholding in the proposal, up from the previous level of eight percent, sources said.

Indeed, while no meetings between the two sides were scheduled as of Monday night, a person with knowledge of the situation told CBSSports.com that NBPA executives were hopeful that further conversations could be scheduled with the league before the Wednesday deadline.

While union president Derek Fisher and outside counsel Jeffrey Kessler excoriated the league's latest proposal after talks broke down early Sunday and executive committee members are not in favor of presenting it to the rank-and-file for a vote, union negotiators believe that some minor tweaks to unresolved system issues could make the deal more palatable. Among the issues, for example, would be permitting teams above the luxury-tax line to execute sign-and-trade transactions -- a detail the two sides are at odds on despite it only occurring five times during the previous six-year agreement.

Union executives will meet at 1 p.m. Tuesday at a Manhattan hotel with player reps, with all 30 teams expected to be represented either by their reps or alternates.







Posted on: November 7, 2011 1:27 pm
 

Legal options: Players can give ultimatum, too

NEW YORK -- As union officials huddled Monday to consider their options in the face of an ultimatum to accept the owners' latest proposal, one such option could be a shift in legal strategy with plenty of risk and reward attached to it.

Rather than waiting for the players to get the necessary signatures to dissolve the union by seeking a time-consuming decertification vote, Billy Hunter could advise commissioner David Stern that, if no further negotiations occur before the Wednesday deadline to accept the owners' deal, he will have no choice but to step aside as executive director of the union.

The legal term for this would be a disclaimer of interest, which would only require a letter from Hunter to Stern advising him that the National Basketball Players Association no longer exists as the bargaining unit for the players.

The advantage of this for the players would be that, once the letter is sent, their attorneys would not have to wait 45-60 days for the National Labor Relations Board to authorize an election to formally dissolve the union. With a disclaimer of interest, the players could almost immediately commence an anti-trust lawsuit against the NBA, said Gabe Feldman, director of the Sports Law Center at Tulane University.

"The owners have threatened to, in some ways, end the negotiations if (the players) don’t agree by Wednesday, because 47 percent is a non-starter -- we all know that," Feldman said. "So the owners have given the players an ultimatum with an artificial deadline, and it may force the players to respond with their own ultimatum. But both are destructive of the negotiation process.

"Clearly, what David Stern has said is designed to push the players to make a concession with the threat of essentially ending the negotiations," Feldman said. "And that’s what the players would be doing by threatening to dissolve the union."

A parallel threat to dissolve the union through a decertification vote already is under way, with players and agents dissatisfied with the union's representation consulting with anti-trust attorneys to weigh the costs and benefits of decertifying. But while a decertification initiated by union members has a better chance of holding up in court as not being a "sham," the disclaimer of interest route is more expeditious and could apply the leverage players are seeking without endangering the entire 2011-12 season.

A key difference, however, is that with a player-initiated decertification, union leadership would remain in power until the election, and thus, negotiations could continue. If Hunter steps aside and dissolves the union voluntarily through a disclaimer of interest, the union would have to reform before negotiations could continue.

"You can't flip a light switch on and off," Feldman said. "It’s a sobering process. Writing a letter one day and tearing up the letter the next day flies in the face of that."

That distinction makes a disclaimer a dangerous legal weapon for the union to implement at this point. The NBA already has sued the NBPA in federal court, seeking declaratory judgment that a disclaimer or decertification on the players' part would be illegal. If the union disclaims, in some ways it would strengthen the league's legal argument that it was planning to dissolve all along. But the union would have a valid counter-argument.

"Billy Hunter could make the argument that dissolving the union was never a strategy until Stern threatened to end the negotiations unless we agreed to every last one of their demands," Feldman said.

As evidence that he never intended to dissolve the union, Hunter could cite the players and agents who have become so enraged with his refusal to do so that they've begun the process of doing it themselves. In fact, for legal purposes, both a disclaimer and decertification could proceed on a parallel basis as a last-resort response to the league's ultimatum, Feldman said.

The biggest legal benefit to dissolving the union through a disclaimer would be that, once the union was transformed into a trade association, the players could almost immediately file an anti-trust lawsuit against the league -- which in theory would open the owners to not only the financial losses of a canceled season, but also anti-trust damages. In all likelihood, the players would file their action in the 9th Circuit in California, where more employee-favorable law exists. Since the league already has pre-emptively sued in the employer-friendly 2nd Circuit in New York, a messy and potentially lengthy jurisdictional battle would then unfold.

And while the disclaimer would be a more expeditious route to antitrust action, it would also be less likely to succeed than a decertification initiated by the players. Courts would be more likely to view a disclaimer as a bargaining tactic, rather than a decision with the true intent to dissolve.

NBPA outside counsel Jeffrey Kessler, who oversaw the NFLPA's disclaimer of interest, "wants to protect not only players in this negotiation but players' ability to use this weapon in the future," Feldman said. "He has to make it appear that this dissolution is a not a sham."

If either of these legal strategies becomes official, the hope of a swift end to the impasse at the bargaining table would be seriously imperiled. So Hunter's best move before Wednesday may be to directly ask Stern for another bargaining session before Wednesday in an effort to close the gap on the remaining system issues so he can bring the deal to the players for a ratification vote. If Stern refused, Hunter could advise him that he will have no choice to send him a disclaimer of interest letter -- and indeed, that even if he doesn't step aside, the players are planning to dissolve the union on their own through decertification.

The question of how Stern and the owners would respond to the players' own ultimatum is a risky and unknown game of roulette that union leaders will have to decide if they want to play.

"It could go either way," Feldman said. "It could cause enough owners to be skittish and want to avoid the risk of anti-trust litigation -- because if they lose there, it’s a huge loss. ... The other side is that it could cause Stern and the owners to say, 'We’re not going to let you manipulate labor law by threatening us with an anti-trust suit and we're going to take a stand.

"The question becomes: Do all of these threats bring the sides closer together," Feldman said, "or push them further apart?"
Posted on: November 7, 2011 10:50 am
Edited on: November 7, 2011 11:31 am
 

Union wants meeting, but do hard-line owners?

NEW YORK -- Officials from the players' union would like to arrange one more round of bargaining with the league before Wednesday's deadline to accept the owners' latest proposal or face a far worse one, sources confirmed to CBSSports.com Monday.

But there are fears on both sides that hard-line owners who aren't comfortable with the deal as it stands now will resist such a meeting because they prefer the 47 percent deal with a more restrictive salary cap -- the deal commissioner David Stern said Sunday would be on the table if the union rejected the existing proposal.

The delicate state of negotiations faced increasing pressure from hard liners on both sides Monday, with players and agents pushing for union decertification continuing to organize those efforts and hard-line owners believing this is the last chance for a more liberal proposal before they gain control.

"I think, at the end of the day, this group (of hard-line owners) said, 'OK, we will let you do it your way up until Wednesday,'" a person in contact with ownership told CBSSports.com Monday.

If the players didn't accept by Wednesday, those owners would say, "We do a deal on our terms," the person said. 

In addition to a 47 percent share of revenues for the players and a flex cap, those terms also would include a relinquishing of guaranteed contracts and a rollback of existing salaries, sources familiar with the hard-line owners' position said.

The deal on the table for the players to accept by Wednesday includes a 50-50 split of revenues, which a significant number of mid-level players are believed to be amenable to and which superstar Kobe Bryant also would be willing to accept, SI.com reported. The proposal includes a band of 49-51 percent for the players, which union attorney Jeffrey Kessler characterized Sunday morning as "a fraud" because revenues would have to explode with 20 percent annual growth for the players ever to receive 51 percent. The union has proposed a 51-49 split in favor of the players, with 1 percent going to benefits for retired players.

It seems unlikely that the union would accept the current deal and recommend it to the players for a vote before Wednesday, but members of the executive committee were scheduled to speak Monday afternoon on a conference call to plot their next move ahead of a mandatory meeting of all 30 player reps Tuesday in New York. Union leaders' key objections center around system issues that they feel league negotiators did not go far enough in addressing during the most recent round of bargaining that led to Sunday morning's ultimatum. As ESPN.com reported, union negotiators feel that with a few tweaks to the remaining unresolved system issues, they would feel more comfortable recommending the proposal for a vote rather than risk having the process co-opted by radicals on both sides.

A successful decertification movement combined with the hard-line owners taking over with their 47 percent offer would throw the talks into chaos and imperil the entire 2011-12 season.

Some of the differences between the two sides' positions on outstanding system issues are so minor that fear is growing among a significant number of moderate agents who do not favor decertification that the season could be lost over issues that would have little impact on the financial state of the league and efforts to improve competitive balance. For example, the two sides are only 50 cents apart on the additional luxury tax that would be imposed for teams that spend up to $10 million over the tax line and have identical proposals for a $1 additional tax for teams that spend more than $10 million over.

The two sides' disagreement over whether tax-paying teams should be allowed to engage in sign-and-trade transactions also is largely irrelevant. According to a union source, there were only five transactions in which tax-payers took on a signed-and-traded player during the entire six-year CBA that expired July 1.

On two more key unresolved issues that the union views as paramount to an acceptable deal, the league already has met the players halfway. In the owners' existing proposal, teams that wade into the luxury tax would receive 50 percent of the tax payments foregone by making the move above the tax. And on mid-level contracts for tax-paying teams, the compromise proposed by the league calls for tax teams to be able to offer two-year deals starting at $2.5 million every other year. The union's most recent proposal called for four-year mid-level deals starting at $5 million for tax teams.

But efforts to close the gap on those final issues could be imperiled by the players' decertification movement and by intransigence among the original group of hard-line owners, who have tried in recent weeks to recruit more owners to their side. According to a person familiar with ownership dynamics, the so-called "original" hard-line teams were Atlanta, Charlotte, Cleveland, Milwaukee, Memphis, Philadelphia, Washington, Portland and Minnesota. There has been growing support in recent weeks for the hard-liners' position that Stern has given up too much in the negotiations -- thus, the ultimatum and subsequent shift to a more severe proposal if the players fail to accept the deal on the table by the close of business Wednesday.



 
 
 
 
The views expressed in this blog are solely those of the author and do not reflect the views of CBS Sports or CBSSports.com