Tag:NBA Lockout
Posted on: November 7, 2011 1:36 am
Edited on: November 7, 2011 1:40 am
 

Players hoping for new meetings before Wednesday?

Posted by Royce Young

The players have deemed the league's ultimatum proposal "unacceptable." That much is clear. They have until the end of business Wednesday to make up their mind whether or not they can work with the 51-49 "band" proposal that David Stern outlined Saturday night.

And right now, it doesn't sound like there's any wavering. Ken Berger of CBSSports.com put it extremely well in saying that Derek Fisher and the players made a tactical error in addressing Stern's ultimatum. As Berger wrote, Fisher should've flipped the script on the Master Negotiator and said that his group is ready and willing to spend the next 96 hours negotiating and bargaining to close out a deal.

According to ESPN.com, that's exactly the idea.
Sources close to the talks revealed later Sunday that the union is actually holding out hope that the league will call to re-open negotiations before Wednesday, with an eye toward tweaking some of the system issues to lead to a more palatable deal that the NBPA would be comfortable with putting to a vote. The union's belief, sources say, is that a few changes -- none of them monumental -- could produce a deal now that the gap on the revenue was closed further in Saturday's negotiations.
That, to me, is the most reasonable explanation at this point. Because to refute the proposal from the league immediately without even really giving it a shot doesn't seem fair to the process to me. Fisher rejected the deal pretty much all on his own Saturday night (along with attorney Jeff Kessler and Billy Hunter) and spoke for some 450 players by saying it wasn't acceptable.

But could it actually be? Most likely -- and this is just my opinion -- the majority of rank and file players would be willing to vote for the proposal the league laid out Saturday. Fisher knows this and that's why he's likely reluctant to even give them a shot at it. Who else knows it? David Stern, and that's why he made it all so very public Saturday.

It could very well be posturing by the union right now. All this talk of "unacceptable" could just be a ruse to try and persuade the league to bargain once more and present a tweaked and better offer. That's probably wishful thinking at this point, but that could very well be the plan. Because the players might need to face reality: The league's offer Saturday is the best they've seen yet and maybe the best they'll ever get. Not fair, I agree, but that's not really up for discussion at this point.

The union has called a "mandatory" meeting in New York Tuesday featuring all 30 team reps according to the report, presumably to discuss decertification as well as potentially the league's proposal. Holding out for another meeting isn't a bad idea, but by the way Stern spoke Saturday, it seems as if the league has played its hand and is wait for the players to either call or fold.

For better or worse, we'll know their move by the end of business Wednesday.
Category: NBA
Posted on: November 6, 2011 3:25 pm
Edited on: November 6, 2011 3:27 pm
 

First decertification step coming this week?

Posted by Royce Young

The campaign to decertify is heating up.

While the league has set a deadline for Wednesday to accept the latest proposal or the offers get worse, the players are trying to hit back with that big nasty d-word.

The whole process is complicated. But it only starts with an initial petition that would allow a vote on decertification. In order to even be allowed to vote on it, there has to be a minimum of around 130 players -- or 30 percent -- sign it. Will they get that far along? A report from ESPN.com says yes.
Sources close to the process say leaders of the decertification movement -- with Boston Celtics star Paul Pierce most noticeably at the forefront -- can and will find the required 130-ish players needed to sign a petition to vote on decertification by Monday or Tuesday. And that's when the clock would really start in terms of saving the season … unless you believe that the league is truly prepared to take the villainous step of canceling the season if there’s no deal by Wednesday.
The report says the players aim to get around 200 signatures and not just the low number of 130. If the petition passes, only then does the actual process of decertifying happen. Then the National Labor Relations Board has to rule if the vote can even take place. That window though is for 45 days and that's the whole plan for this decertification: The players want those 45 key days of negotiating where the owners actually fear the prospect of decertification. That's where they think they can make up ground.

But understand this: The petition the players are expected to sign this week only means that potentially a decertification vote could take place. And if it ever gets that far, a majority -- some 230 players -- would have to vote to decertify. Would they really do it though? That's the question the players want the owners asking.
Category: NBA
Posted on: November 6, 2011 9:57 am
 

Deron Williams is ready to decertify

Posted by Royce Young

David Stern gave the players an ultimatum Saturday: Take this deal or get ready for a worse offer.

And the players don't have much left to hit back with though. Stern's got the PR battle won. The proposal he laid out in great detail sounds fair enough to fans so if -- or when -- the players reject it, all the blame is on them.

So with the frustration built from what the players perceive as another weak offer, the decertification train jumped back on the tracks and appears to be running full steam ahead. Jared Dudley retweeted a reporter that tweeted "Hello decertification." Jeff Green tweeted "I CAN'T F'ING BELIEVE THIS!!!" Nazr Mohammed went on another one of his asture, well-thought out Twitter rants.

But Deron Williams came high and hard.



(I think the question mark was supposed to an exclamation point. Just a hunch.)

But Williams sentiment is one many players are feeling. This decertification push is something a lot of players, or at least agents, wanted over the summer. But going hard for it now is akin to trying to stop your house from burning down with your garden hose. It still has merit and it's certainly a tactic, but I don't think Stern and his owners are shaking over it.

The players have until Wednesday to either change their mind or to really dig in. And if they're going to dig in, they might as well get completely crazy and just try to, as one player texted a reporter, blow it to the moon.
Posted on: November 6, 2011 1:37 am
Edited on: November 6, 2011 2:08 am
 

'No deal' Saturday; Stern sets Wednesday deadline

Posted by Ben Gollivernba-lockout

The NBA and the National Basketball Players Association resumed negotiations on a new collective bargaining on Saturday afternoon in New York City -- the first time the sides had met face-to-face in more than a week -- with federal mediator George Cohen once again presiding over the talks. 

Ken Berger of CBSSports.com reported that talks concluded after more than eight hours with "no deal" being reached. There are currently no further negotiating sessions scheduled between the two sides.

Saturday's session began at roughly 2 p.m. and stretched past 1 a.m. and included all the major players: NBA commissioner David Stern, NBA deputy commissioner Adam Silver, NBPA executive director Billy Hunter and NBPA president Derek Fisher.

Following the meetings, NBA commissioner David Stern told a group of assembled media that the two sides had endured a "long day," with Cohen making a list of six recommendations regarding system issues -- including a BRI offer with a 49 percent to 51 percent band for the players, modifications to the mid-level exception, heavier restrictions on luxury tax payers, and others -- and that the NBA adopted five of those six suggestions into their current proposal.

"We told the players we would put those in writing so they could be understood and transparent for both sides and we hoped they would accept it," Stern said. "We would be amenable to making a deal on that basis until Wednesday at the close of business."

 After Wednesday's deadline, Stern implied, the owners' proposal would get significantly worse.

"If we are unable to make a deal on those terms by the close of business on Wednesday, we will be making a new proposal, which we will also share very soon with the players in writing," Stern said. "[It] is multi-faceted, but for purposes of this press conference, it would be a 47 percent proposal, a flex cap, and lots of other issues that you have become familiar with. We hope that this juxtaposition [of offers] will cause the union to recess its position and accept the deal."

Stern then noted that the NBPA did not accept the NBA's offer as currently constructed.

"I think it's fair to say that, speaking on behalf of the union, [NBPA lawyer Jeffrey] Kessler rejected the mediator's recommendations and our proposal," Stern said. "But hope springs eternal and we would love to see the union accept the proposal which is now on the table."

Stern said he felt confident and confirmed that he had a "sense" that he could sell the current offer to the majority of his owners needed for ratification.

But, he admitted, the negotiations are starting to wear to him.

"I'm tired," Stern said. "We made the proposal because we hope it will be accepted by Wednesday. I'm not going to make percentage guesses or anything like that. We want our players to play, we want to have a season, these are the terms that we are prepared to gear up and get in as many games as possible."



NBPA president Derek Fisher had a much more solemn take on the day's events.

"Today is another very sad day for our fans, for our arena workers, our parking lot attendants, our vendors, a very frustrating, sad day," Fisher said. "We, for sure, unequivocally made true, good-faith efforts to try and get this deal done tonight. And we're at a loss for why we could not close it out based on the moves that we made towards the NBA and the league in getting this deal done. We made moves that were extremely significant. We made economic moves that were a genuine attempt to try to close the gap between where we were and where the NBA is."

Fisher "respectfully disagreed" with Stern's account of the events, saying that Cohen "never actually proposed any formal ideas or concepts" on Saturday, but that he did lay out "what-ifs" for discussion points. Fisher disputed the characterization of the NBA's BRI proposal, saying that it would be difficult for the players to meet the requirements to achieve the upper compensation end. 

He ended his opening remarks by clearly confirming that the players do not find the NBA's current offer acceptable.

"Right now, we've been given the ultimatum and our answer is that's not acceptable to us," Fisher said.

The offer was so undesireable, Fisher said, that the NBPA was not planning to meet to discuss it prior to Wednesday's deadline.

"There's not a deal that we can present to [all the players to] take a vote on," Fisher said. "I cannot say at this point that we would call a general body meeting to take a vote on what has been proposed at this point."



Prior to the conclusion of the negotiating session, the Washington Post reported that the two sides were "very close" to reaching a new dal while ESPN.com reported that Saturday's meeting was "going very well."

Representatives from all 30 NBA teams also met in New York on Saturday, prior to the NBA-NBPA negotiations.

Entering Saturday, concern had been raised by a number of developments. First, reports of a possible rift between Fisher and Hunter brewed throughout the week. Then, a group of NBPA consulted with a top antitrust attorney to receive more information about possibly decertifying the union. Finally, a report surfaced that a group of hard-line owners, led by NBA legend and Charlotte Bobcats owner Michael Jordan, felt that a 50/50 revenue split with the players was too generous, preferring a 53/47 split for the owners, an offer that would certainly anger the players, who were offering a 52.5/47.5 split in their favor.
Posted on: November 4, 2011 10:17 pm
Edited on: November 4, 2011 10:21 pm
 

NHL Commish: Losing season worth it

By Matt Moore 

The NHL sacrificed an entire season to get the deal they wanted from the players. It was draconian, it was brutal, it was effective. For months, there have been rumors and speculation that the NHL lockout provided a template for the NBA owners. If the NHL could effectively reset everything back to zero, perform a complete realignment, and then walk out as a legitimate sports league that at least in some senses in thriving, why can't the NBA?

NHL Commissioner Gary Bettman joined Yahoo! Radio to discuss the NHL and the correlation between its lockout and the current NBA lockout which is currently threatening the entirety of the 2011-2012 season. Our own Brian Stubits of Eye on Hockey caught the appearance and transcribed quotes for us. The theme is pretty simple. First, Bettman discussed how painful the lockout is for everyone involved. Players, owners, workers, everyone. 

"Any time you have a work stoppage for any length of time in any sport or any business, it's very painful. There are the people that are involved, there are the people that are indirectly involved and in a sports context, you've got the fans. 

"It was very painful for us when we lost the season. We didn't have a choice. We had some pretty fundamental problems. And in our case, I'm not necessarily suggesting it's a template for anybody else, we came back stronger. We were back stronger than ever on Day 1 because our fans understood that we had problems and that they had been addressed in collective bargaining and that gave us great optimism for the future. 

"But a work stoppage is painful for everybody, in any context."
Well, I'm sure it was comforting to arena workers to know the commissioner felt the pain for them. But Bettman's comments on not having a choice is the same kind of ideology at play in the NBA. Justifying brutal negotiating tactics that cause job losses and hurt fan interest is easier when you claim there was no alternative. Bettman elaborated on how losing an entire season was unavoidable. 

Bettman was asked if he would tell the NBA owners the pain of losing an entire season was "worth it" for what the owners gained from the process:

"Well I wouldn't be presumptions enough to tell an NBA owner anything at this point. But our case, and that's the only thing that I can address, we didn't have a choice. We needed a new system. We needed to change our circumstance, our model. Without that, I'm pretty sure we couldn't have continued. 

"So in our case we did what we felt was absolutely necessary. We've come back stronger and people believe the game and the business of the game has never been better. But again, that was our circumstance six years ago and it would be presumptious for me to suggest to the NBA or any other league what they should be doing." 
And that's how the NBA will justify the damage they have done and will do to the league. That they had no alternative. If you remove your options, you can claim that you were "forced" into the desperate and extreme measures you undertook. 

This is the model the NHL has given the NBA.

Thanks, hockey.
Posted on: November 4, 2011 1:06 pm
 

Billups: Most wouldn't be willing to lose season

Posted by Royce Young



There hasn't really been a time in this NBA labor impasse where it genuinely looked like the league could lose an entire season. It's all been a lot of talk and posturing, but when things got down to it, just like in 1999, a deal was going to be made. It's been more about "when" and not "if". There hasn't been a worry yet.

Until now.

With some 50 players talking decertification, that route could derail the season easily. But in order for it to happen, 60 percent of the union would have to vote for it. And by voting for it they'd basically be saying they're fine missing one, maybe two, seasons of basketball. Are 60 percent of players really willing to do that?

Chauncey Billups says no, as he told ESPN New York Thursday:

“I’ve spoken to a lot of players and I could see a lot of players wanting to do that. If you’re asking me if the general body of the NBA is willing to do that, willing to lose a year’s salary, I don’t think guys would be willing to do that. That’s going to be a position and a bridge that we’re going to have to cross when we come that.”

Before now, players probably hadn't entirely considered whether or not they'd be willing to miss a season. A lot of the high profile guys have said it they'll do what it takes to get a fair deal. But now, they're going to have a chance to put their money (or lack thereof) where their mouth is.

If a decertification vote actually happens, will the general body, as Billups says, want to forego a court battle and get back to basketball? Or will they dig in and fight for what they think is right?

It's getting down to it. That decision doesn't have to be made yet, but the clock is ticking for the players. The offers are probably going to start getting worse pretty soon and with this thing getting messy, that "general body" better speak up.
Posted on: November 4, 2011 11:23 am
Edited on: November 4, 2011 1:51 pm
 

Decertification: The Nuclear Option

By Matt Moore 

With reports surfacing Thursday night of a possible coup being attempted on the part of outraged players with regards to concessions granted by NBPA leadership in negotiations with the NBA on a new CBA, the talk is now shifting to the courts. Players are threatening an "involuntary decertification," in which 30 percent of union membership signs a petition to bring a vote to the union with regards to decertification. From there a simple majority would be needed to decertify the union. That opens the way for the players to bring individual antitrust suits, which could potentially damage the owners and even end the lockout. 

But what does any of this mean?

To find out, we spoke with David Scupp of Constantine Cannon LLP, an antitrust firm based on the East Coast. Let's try and get to the bottom of what any of this means.

What is decertification?

In an effort to protect employees, the National Labor Relations Act put into law a compulsion for employers to collectively bargain with unions. Under the terms of collective bargaining, Scupp says that in time businesses were protected from antitrust laws as long as both sides were involved in collective bargaining, which must be done through a union recognized by the NLRB. 

"A rule emerged in the 1980's which says antitrust laws are out of bounds except when there is no longer a CBA between union and management," Scupp says. "The only way around that is to decertify the union. That's the result that came out in the 1990's."

So as long as the NBPA exists, the owners are protected from antitrust litigation. Thus, decertification. 

Decertification can be committed to in separate ways. Disclaim of interest is a faster process that involves union leadership essentially scuttling their own ship. However, it is less likely to hold up in court. What the 50 players (and their agents) are seeking is an involuntary decertification, which requires the 30 percent petition, the majority vote, and recognition from the National Labor Relations Board. In doing so, the action would dissolve the union, ending protections for the owners against antitrust suits and paving the way for players to pursue suit against the owners. It is believed that this option represents the only true way to gain leverage against the owners. 

In short, Scupp says, "the law gives the right for the players to be and not be a union." 

What are the legal challenges to decertification?

Before we get into antitrust considerations,  it's important to consider that the league has already challenged any move from the NBPA to decertify or disclaim interest. The league filed suit against the NBPA attempting to protect itself from any suit resulting from decertification on the grounds that the NBPA has not bargained in good faith and that any decertification on the part of the players is not legitimate. This is where the term "sham decertification" comes from. This same consideration was brought up but not settled, Scupp says, during the NFL lockout and subsequent court battle with the NFLPA. 

"The argument says that the union is decertifying, but it's not a good faith decertification," Scupp says. "It shouldn't be a lightswitch that can be turned on and off. That argument needs to be tested. It wasn't one of the issues that was resolved in the NFL case. The league is arguing that if the players' union decertifies, it would be a sham and the court should not entertain a suit."

The biggest problem with this particular suit, Scupp says, is that it's attempting to block something that hasn't occurred yet. Scupp says that the court is essentially tasked with reading intent towards the NBA's decision to decertify, which it has yet to do. How do you evaluate the intent of a party regarding an action they have not taken yet? That's the challenge to the NBA's suit, as outlined by the NBPA in their reply memorandum

Should the union elect to decertify involuntarily, as is being proposed by the players, the sham argument becomes more difficult to prove. The sham argument proposes that the union's decertification is merely being used as a tactic towards negotiation. Having the players (at least on surface) detonate their own union without consultation or approval from NBPA leadership would be pretty difficult to challenge as a sham.  

So the union decertifies, what happens then? 

Why would you give up the protections afforded you by the National Labor Relations Act to collectively bargain by decertifying your own union, essentially putting you out on your own against the power of the NBA?

Because it allows you to sue for antitrust. And it is here we enter the wild, and the one last, desperate hope of the players gaining leverage or an outright victory over the union.

Players would file suit against individual owners claiming that the lockout itself is an antitrust violation, Scupp says. "It's a group boycott, outside the context of collective bargaining, an anti-competitive element, would be their argument," according to Scupp. 

 The league acts in collusion regarding all matters of the CBA, according to the plan of attack for the players. 

"The salary cap, draft rules, etc., if those practices are part of the CBA," Scupp says, "if you're going to restrict free agent movement, and all your teams are going to act together, that's a violation of antitrust, according to the argument." 

We're used to hearing about open markets with regards to antitrust. The NBA is the only real "market" that exists in the United States for professional basketball since the ABA-NBA merger. But Scupp says that the suit would be focused more on the elements and practices of the NBA that may constitute an antitrust violation.

"There are certain violations which are what are called per se violations," Scupp says," that are so anti-competitive, you don't have to prove what the market is. If it is not a per se violation, they go with a rule-of-reason analysis. The players would have to prove what the global market is. That's a very good question, what the market is."

Does the professional basketball market include minor leagues like the barely-in-existence current ABA? Does it include Europe? Does it include exhibition games to the degree it can be argued players can make a living off that option? 

"Is it a worldwide market for basketball and if so does the NBA have market power?" Scupp asks. "Is the NBA a market inside itself? I don't know, but it's a very good question. If the lawsuit ever progressed to that point, would be important."

Scupp says that other questions that would come into play are what percentage of the market does the NBA control, and are there barriers to that market for the players? It gets trickier the further this process goes. 

What happens if the players win an antitrust suit?

The owners go down like Michael Spinks. Scupp says that a possible result would be the court enjoinging the lockout, effectively ending it. The players wouldn't be bound by it, and would start receving checks again. This could actually be enacted while the suit is taking place, putting even more pressure on the owners. For that to occur, the NBPA would need to prove irreparable harm stemming from the lockout, which involves combating a likely claim from the NBA that Europe and other employment options undermine the idea of irreparable harm.

Should the court enact an injunction, the league would no doubt appeal. The question of whether the injunction would hold during such an appeal is up for debate. The original judge in the NFL case in Minnesota held that the injunction would hold during an appeal and the lockout would be withdrawn, but the Minnesota district court ruled to suspend the injunction during the appeals process, opening up the lockout once more. While Scupp says a ruling on such an injunction would come quickly, that would still take a month or more, time neither side has if they wanted to save a season.

But the monetary result is the real hammer for filing the suit. 

"At the end of the day, if the players could win an antitrust suit, you get treble (triple) damages, the payout at the end would be very significant." 

Furthermore, if it looked like the players were going to win such a suit, the league would likely cave and grant the players huge concessions or keep elements the same in the next CBA. It would represent a dramatic win over the owners. 

So the decertify-and-antitrust-suit option has to be the best choice for the players, right?

Not at all, according to multiple experts, including Scupp.  

Provided they manage to get the required votes for a decertification, and that decertification holds up in court, and the players file suit, and the court hears that suit, and the players win, what's the timeline on that? Years, Scupp says. Years.

"The question is whether the players can sustain through that period," Scupp says. "I'm sure a lot of players can, but I'm also sure a lot of players can't." 

Consider who is linked to the 50-player initiative. At least seven All-Stars and probably more were reportedly on the calls. Those players have the means to survive such a monetary drought. Dwyane Wade isn't going under in three years. But the majority of the NBPA is made up of role players and end-of-bench guys, along with rookies and young players who don't have those means.

Additionally, losing the league for multiple years would likely simply mean the end of the NBA. It's unfathomable to think about, but that's the reality. Even once a case is decided and damages set by a court, the appeals process would take further years. Scupps says that the only way this is a feasible option for the players should they pursue this route, considering the money lost in one or more lost seasons, is if an injunction is placed on the lockout, and that is far from certain. This isn't a quick process, it's a painfully slow one, and one that would bleed the league to a flatline on the national spotlight.

Which is why Scupp says decertification and subsequent lawsuits only work as a negotiating tactic, not as a viable strategy towards conflict resolution.  

"An antitrust suit would take years to resovle and neither side takes that."

If the suit is merely being filed as a negotiating tactic, wouldn't the court want to avoid participating in such a process? Scupp says it's likely that the court would urge both sides to settle the dispute at the negotiating table, rather than using the courts as a means to an end.

So what's the end game here? What happens next?

The players are playing a dangerous game of chicken right now. Basically, they have no weapons to aim at the league in this negotiation and feel they're backed into a corner with no acceptable solution in sight. So they've pulled out the antitrust hand grenade and are daring to pull the pin. If the players go down, they're taking the owners with them. 

The problem is that the likely result of this is a lost season, something that the owners have been hinting at and Billy Hunter has explicitly said some owners are pursuing anyway. It's threatening the NBA with something it's already made clear it's ok with. How do you get someone to back off by punishing them with something they're fine with?

The only chance the NBPA has here of victory or even a marginal survival is that the prospect of leaving the process up to the courts takes it out of the NBA's hands. The owners no longer control the field, despite the many obstacles in the way of such suits. That kind of wild card might be enough to shake the moderates to align with those owners who do want a deal and a season, wrestling control from the hard-line owners who so far have carried the day.

Decertification and antitrust litigation is the nuclear option. Once it starts, stopping it becomes harder and harder. The case won't even be brought to court until after the entire 2011-2012 NBA season would be cancelled, and the process could and would probably take up to another full year to reach an initial resolution, prior to the appeal process. The players would be ending professional basketball in this country to protect themselves from the owners' efforts which have been draconian and brutal.

Saturday will be day 128 of the NBA lockout. If it is not the last, the future of the NBA looks dark for all involved.


Additional resources: 
Huffington Post lockout primer.  
Sports Illustrated FAQ.
NBA vs. NBPA legal documents, via Brian Cuban on Twitter. 
Posted on: November 4, 2011 10:02 am
 

Report: It's going to be a full-house Saturday

By Matt Moore 

With the player's union bitterly divided over how much to surrender in order to get a season, rumor and allegations flying rampant, Saturday's meeting beween the NBPA and NBA was going to be drama-filled to begin with (as much as a bunch of guys in suits sitting around a hotel boardroom can be). But the Boston Herald brings news it's going to go to the next step. 
According to sources, the session will be much larger than the recent talks in terms of participation.Players beyond the executive committee are expected to attend, and there could be greater participation on the owners’ side, as well, as they try to end the lockout and reach a new collective bargaining agreement.

This may be an effort to make things more transparent in response to inside questions about the directions the two leaderships have been taking. It could also be a show of solidarity from each side amid reports of fractures.One source said he has no idea what to expect from the expanded session.

“It could be that everyone gets together and cooler heads rule the day,” he said. “Or it could be one of those battle royales from wrestling. We could see players and owners being thrown over the top rope and out the hotel windows.”
via BostonHerald.com - Blogs: Celtics Insider» Blog Archive » More players, owners to get involved in NBA talks Saturday.

Based on how the last week has gone, I would bring a Lucha Libre mask and some tights, if I were you.

This is actually spectacularly bad news for anyone paying attention. Progress has only been made in talks in small groups. Getting the larger contingents involved when thing weren't so volatile was bad enough, and lead to multiple breakdowns in talks. But throwing in the drama of the past week along with owners who no doubt smell blood means that this meeting could be very Hobbes-ian: nasty, brutish, and short. It could turn into a Quentin Tarantino flick: lots of blood and everyone dies in the end.

There's a perfect storm of elements coming to play that could spell the end of the NBA. Not for a season. For good.  
 
 
 
 
The views expressed in this blog are solely those of the author and do not reflect the views of CBS Sports or CBSSports.com