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No blowout needed; Stern should take labor win, make the deal

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Commissioner David Stern has all the leverage, and eventually will win. (Getty Images)  
Commissioner David Stern has all the leverage, and eventually will win. (Getty Images)  

This was David Stern at his best, the smartest guy in the room -- just ask him -- running the game with an audience of millions. This is why Stern makes whatever salary he makes, because he told the owners he would deliver for them and it was time to make good on that promise.

In the language of diplomacy, as Stern likes to say, he always makes good -- always knows, like some of the greatest stars his league has produced, when it is time to close the deal.

Stern had to come through Thursday in the tipoff of his little media tour. It was time to stem the tide of public opinion against the owners and turn the full force of what longtime observers call "Mt. Stern" on Billy Hunter and the union. The message was clear: Once Stern erupts like this, few people and their principles will be left standing. You have a blood issue? Here's a mop. Now go clean it up.

For really the first time in more than two years of negotiations, Stern eloquently explained the owners' solutions for fixing the NBA and made it all sound so reasonable. His depiction of the negotiations, of the bargaining points, of the back and forth was blissfully incomplete, as his nickname, the Ommissioner, would suggest.

But this was an important moment for Stern, winning time in these negotiations. With Hunter having made the rounds on the radio a day earlier and en route to Los Angeles to update his players on the current state of their inevitable doom, Stern meticulously dismantled the union, its leadership, its bargaining points, its beliefs -- everything but its women and children, and might I suggest that they remain securely hidden until this is over.

At a time when the public, and, in fact, a federal mediator, was finally beginning to catch on to the sheer insanity and unreasonableness of the owners’ demands, Stern expertly turned the table and made it seem like it was the players who were being obstinate -- the players who had placed a grenade under the 2011-12 season and pulled the pin. The public, always inclined to turn on athletes at a time like this, was this close to feeling sorry for them -- this close to siding with rich guys who were getting bullied by even richer guys.

Few people really embrace NBA players for reasons that form the strands of another story for another day. But one thing nobody likes is a blowout. Nobody likes running up the score.

And this is where Stern, who at 69 is smack dab in the middle of the moment that will define his legacy, had better understand his real duty and responsibility as this broken negotiation limps into the arms of a federal mediator next week. His duty is not simply to win, to get what the owners -- his clients -- want. His greater responsibility is to get a deal and reopen his sport. Anything less, any attempt to run up the score here, will result in a defeat of dizzying, devastating proportions for everyone.

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For Stern and his owners, for the players and the NBA as a whole, there is a fine line between victory and defeat. When you begin to enjoy too much the feeling of your foot on the opponent's throat, you risk turning victory into catastrophe.

There's such a thing in war, intelligence, law enforcement and yes, negotiation, as taking your victim alive.

On one hand, Stern finally articulated owner-driven system changes that clearly would improve the product: an amnesty clause allowing teams to waive underperforming players and spread their cap hits over multiple years; preventing big-spending teams from spending even more to steal the have-nots' free agents; and taxing teams into oblivion to shrink the payroll gap between the Lakers and Knicks of the world and the Kings and Bobcats.

He was so good, so on his game, and so in command of interviewers with minimal grasp of the subject matter (save for the knowledgeable David Aldridge, who successfully challenged Stern on several points) that he made it seem like gospel that the owners were trying to get a deal and the players were not. He pointed out that union president Derek Fisher of the Lakers was fine with big-market teams enjoying the ability to spend their weakling competitors into irrelevance for another decade or so. He conveniently glossed over the fact that restricting the Larry Bird exception, which he helped create in 1983 to prevent teams from losing their stars, would open the floodgates for more stars to move around.

"Player sharing," was the euphemism Stern assigned to the new world order the owners are seeking. "That's what caps do. They move players around. They distribute players a little more equally."

But Stern's conveniently one-sided characterization of the negotiations -- strongly suggesting, among other things, that a 50-50 BRI split is a foregone conclusion when, at 53 percent, the players already have surrendered more than $1 billion over six years -- wasn't even his most diabolical and significant accomplishment Thursday. This happened when he took aim at the union leadership and delicately pulverized every last one of them into sawdust.

Stern made sure to point out that it was Fisher who came knocking on the owners' door during a key bargaining session Oct. 4 with the idea that both sides try to sell a 50-50 split. Stern didn't have to answer the question about whether he was able to sell it to the owners or not, because A) he said the players came back and informed him they couldn't before he had the chance, and B) this is the number his owners wanted all along, so no salesmanship was necessary.

He made sure to point out that outside counsel Jeffrey Kessler "does about 70 percent of the talking for the union," a veiled-but-effective shot at Fisher and Hunter that will have the union in damage-control mode for days. He couldn't resist leaving out the fact that Hunter was nowhere to be seen during the key conversations about the 50-50 split -- the union's executive director unaccounted for during the most important discussions in more than two years of negotiations.

After listening to about an hour of this Thursday, I wanted nothing more than to lay my dizzy, aching head on a pillow and could fully grasp why Fisher has emerged from every bargaining session wearing an expression of utter bewilderment. Can you imagine listening to this for seven hours a day, in person? So many devious, devastatingly subtle digs that could tear the union leadership apart; it was like watching Jordan in his prime.

But here's the thing: Unlike Jordan, unlike the current stars of Stern's league for whom cutthroat annihilation is part of the job description, Stern has a higher purpose here -- a duty to seek common ground, not scorched Earth. He's the master of the message, the ultimate closer, a skilled negotiator who has taken his case to a public that doesn't know what to believe and thus will embrace the most skillfully crafted closing argument available.

Stern's wax statue at Madame Tussaud's will have a void where the heart belongs and a fork-shaped tongue. But his legacy will be equally disfigured if he doesn't lift his foot off the players' throats and put style points aside to achieve a victory that, while not a blowout, will be far more meaningful.

Barring federal mediator George Cohen -- a former outside labor counsel for the NBPA -- undressing Stern in the negotiating room next week, or barring a miracle from the National Labor Relations Board, it will be up to Stern to see reason and compromise. Just days after cutting out Hunter's legs on radio and TV, it will be up to Stern to throw his longtime foe and negotiating partner the life raft that could save the season -- and save both men's legacies.

For all of Stern's masterful manipulation Thursday, the reality is this: the players have offered to surrender more than $1 billion of their previous salaries, have offered shorter contracts, smaller raises, more restrictions on big-market spending, and have dug in only on the issues of a technical hard salary cap and guaranteed contracts. Stern's negotiation position has made it seem like a victory that the players have managed to preserve even that much, while somehow thwarting the owners' quest to re-open previously signed contracts and suck money out of them, too.

We get it, David. You're winning. You have all the leverage, and barring a legal miracle or the unrealistic notion that decertifying the union will work for the NBPA any better than it did for the NFLPA, you're going to win. It's reality.

But don't lose sight of the fine line between victory and defeat -- because Hunter won't concede in a blowout, and a blowout is a loss for everyone. At this point, the only way to get a deal that saves the season, saves your legacy and spares your product an insurmountable PR disaster, is to negotiate one with Hunter. Keep running up the score, keep piling on, and that deal won't be reached. The result will be economic Armageddon.

As a lawyer, and an excellent one, Stern understands that you fight as hard as you can for your client in the pursuit of unmitigated victory. But he should also know that, sometimes, you take a plea agreement. Sometimes, the certainty of a modest victory is better than the possibility of the ultimate defeat.

Send this one to the jury, David Stern, and it's on you.


Before joining CBSSports.com, Ken Berger covered the NBA for Newsday. The Long Island, N.Y., native has also worked for the Associated Press and can be seen on SportsNet New York. Catch Ken every Saturday, when he hosts Eye on Basketball from 6-8 p.m. ET on cbssportsradio.com
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