NBA owners intend to submit a revised collective bargaining proposal to the players by Friday and are hopeful the document will "get the conversation going" in the wake of NFL players' significant anti-trust victory in federal court, a person familiar with the situation told CBSSports.com Tuesday.
The person declined to divulge details of the new proposal, which will arrive in the hands of National Basketball Players Association officials nearly two months to the day before the expiration of the current CBA at 12:01 a.m. July 1.
While high-ranking NBA executives and attorneys believe the NFL has a chance to win its appeal to the Eighth Circuit on a U.S. District Court ruling Monday temporarily suspending pro football's lockout, there is no dispute among basketball officials that the ruling puts the onus on the NBA and its union to negotiate a new deal rather than have the process hijacked by the uncertainty of the courts.
|David Stern and the NBA received a wake-up call with the recent NFL ruling. (Getty Images)|
The ruling enjoining the NFL lockout by U.S. District Judge Susan Nelson, pending appeal, put the NFL in limbo Tuesday. Agents were unsure whether their clients should report to team facilities, and the league stated that no official workouts should take place until after a stay of Nelson's ruling is granted or a ruling is rendered on appeal -- which is expected to take weeks. In a sign of the weirdness, about 20 members of the Miami Dolphins held their own practice Tuesday on a soccer field not far from the team's official training facility, according to the Miami Herald.
But more to the point of where the NBA stands in its bargaining position with the players, the NFL faces the difficult burden of imposing work rules under which business can be done in the meantime. If the NBA went the same route -- locking out players and leaving itself vulnerable to an unfavorable court ruling that would require it to operate -- the menu of alternatives may not be as appetizing as simply negotiating the best deal owners can get with the players while the union still exists.
"There's no question it's a victory for the players," an NBA management source said of the NFL ruling. "There's no other way to characterize it."
If the NBA, facing a similar legal outcome, attempted to impose rules that were more restrictive than those in the expiring CBA, it would open itself up to further legal action, legal sources said. There also is a significant risk to the players, who would have voluntarily relinquished their right to bargain collectively. The risk to NBA players' future salaries is greater than for their NFL counterparts because NBA contracts currently on the books contain more guaranteed money. The NBA owners' position, legal sources say, would be that all future guaranteed money -- about $4 billion in total -- would be null and void if the NBPA followed the same course of decertification and anti-trust action. The players, of course, would sue to recoup the money -- opening another uncertain and time-consuming legal front and putting their future earnings in the hands of a federal judge.
The NBA's situation also is different because the league has documented that it is not operating profitably under the current CBA. Commissioner David Stern said recently that 22 teams are projected to lose a total of $300 million this season. Similar losses in prior years of the agreement have been documented to the union in the form of audited financial statements and tax returns.
If the NBA decided that going to court would provide a better outcome than negotiating, its trump card would be the belief that no federal judge or appeals court panel would force a sports league to operate at a loss. But if it goes that far, some outcomes are more appealing to both sides than others. For one, the league could opt to impose work rules leaving the current soft-cap/luxury-tax system in place but unilaterally reducing the players' share of revenue from 57 percent to, for example, 40 percent. The legal argument would be that the owners have no choice but to impose a pay cut because they are being forced by the courts to operate and are losing money under the existing model. It is unknown whether such a tactic would survive legal challenge, which could be lengthy, expensive, and less productive than negotiating before it got to that point.
Another option: Owners who believed the courts would not approve rules allowing them to be profitable simply could decide to shut down their businesses. The specter of contraction -- a negotiating tactic that would evolve into a very real threat during a lengthy court fight -- would not be desirable to the players because of the dozens of jobs that would be lost.
The question the players would be asking themselves during a court battle is, would they rather take a 20 percent pay cut, lose an entire season, or lose dozens of jobs if the least profitable teams went out of business? Similarly, the owners and Stern -- who has ruled the NBA with an iron fist and absolute control for more than a quarter century -- would be forced to ask themselves whether they'd rather negotiate with union chief Billy Hunter (the evil they know) or have the future of their sport decided by the courts (the evil they don't).
That's the problem with the courts. No judge will ever go so far as to write a new collective bargaining agreement for owners and players. That part will be up to them. Whether they choose to do so before the courts get involved or after, when it will be far more difficult, should be an easy call.
So as the playoffs roll on this week, with thrilling outcomes, potential upsets and sky-rocketing TV ratings, a judge in Minnesota has done what neither Stern nor Hunter has been able to do for two years: transformed the chances of an NBA lockout from inevitable to unlikely. At the very least, she has taken what seemed like a slam-dunk tactic for the owners and turned it into a heave at the shot-clock horn. As a result, the best option for NBA owners and players is to call a timeout, huddle up, and get this done. Whatever they do to each other behind closed doors will be far less painful than the alternative.