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On NBA opening night, labor fight continues because of agents

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Arn Tellem is among the high-powered agents telling his clients not to budge on the BRI. (Getty Images)  
Arn Tellem is among the high-powered agents telling his clients not to budge on the BRI. (Getty Images)  

Welcome to opening night in the NBA, one of the most competitive and contested the sport has ever known. Sadly, the matchups are not Kobe Bryant vs. Kevin Durant or Dirk Nowitzki vs. Derrick Rose. It's lawyer vs. lawyer, owner vs. owner, agent vs. union and logic vs. ego.

Ego is winning in a blowout so far. There's no basketball Tuesday night, and none Wednesday night, when the Knicks were supposed to host the Heat at Madison Square Garden. There's none for the foreseeable future because the owners and players can't compromise, and the hard liners on each side won't let it happen.

Who's to blame? At this point, there's plenty to go around. But we know enough about the portion of the deal that's been negotiated -- and I agree with the New York Times' assessment that it's "about 95 percent complete -- to more narrowly assign blame.

If I had to pin it anywhere, it would be squarely on the hard-line owners and hard-line agents. Each is preventing its side's negotiators from pushing this basically done deal across the finish line.

Much has been made of the owners' intransigence, and for good reason. Every conceivable aspect of this deal has gone the owners' way: minimally a $1.3 billion pay cut for the players over the first six years of a 10-year deal; shorter contracts; smaller raises; a more punitive luxury tax; more restrictions on trades and player movement. The players pulled into the dealership looking for a tuneup and instead had their ride battered mercilessly with sledgehammers.

More on NBA labor dispute

The $500,000 fine assessed to Heat owner Micky Arison for using Twitter to expose the obvious rift between big- and small-market owners in the negotiations gave credence to something NBPA executive director Billy Hunter has hinted at for months: the owners are not on the same page. As of Friday, when the talks blew up again over the sacred split of BRI, the hard liners were still winning.

But what about the rabble rousers on the players' side? A recent lockout-related piece on FOXSports.com tried to stoke the flames of discontent within the union by strongly suggesting NBPA president Derek Fisher was in the "back pocket" of commissioner David Stern. With conspiratorial spin suggesting that Fisher was pushing to capitulate with a 50-50 split in some quid-pro-quo effort to get favorable treatment from Stern in the future, the story missed the point of what is really at stake when it comes to the final hurdles that need to be cleared to finish the deal.

When it comes to the compromises that need to be made, 50 percent is not 50 percent is not 50 percent, if you know what I mean. Despite deputy commisssioner Adam Silver's mind games that the split of revenues and rules governing player contracts and team payrolls are separate issues, they are not. In fact, both Fisher and Hunter have dropped hints publicly in recent weeks that they're not prepared to accept a 50-50 deal with the system changes that have been negotiated so far.

As he walked away from the media scrum Friday, Hunter was asked if there were any circumstances under which he'd accept a 50-50 deal. "Not right now," he said, another not-so-veiled effort to tell Stern and the hard-line owners that the union is willing to trade certain system concessions for BRI percentage points.

So far, Stern has been unwilling or unable to take the hint -- refusing to throw his long-time negotiating adversary a life line.

Sources have confirmed the laundry list of items agreed to in principle as cited by SI.com and the Times in recent days. One person directly involved in the negotiations said enough had been done heading into Friday's ill-fated bargaining session that it was reasonable to expect that the day would've ended with hands shaking. So why did the fault line of BRI separating the two sides tremble instead? There was a mutual lack of willingness to address the few remaining system tradeoffs that could've given Hunter the ability to sell a 50-50 split to the union membership or Stern the leeway to negotiate the players' share up from 50.

From a deal-making perspective, how this should go is fairly straight forward. Absent undue pressure from hard-line agents, Hunter and Fisher should be able to sell a 50-50 split to the membership if they get concessions on several key system issues that remain unresolved -- principally related to the luxury tax and exceptions. These, along with the preservation of guaranteed contracts, a soft-cap system with the cap and tax staying roughly constant at $58 million and $70 million in Year One, respectively, and a healthy mid-level exception starting at $5 million would be enough small victories for Hunter to sell 50 or 51 percent as a win-win.

Sadly, a person close to Hunter said Tuesday the union chief remains "pretty dug in," and it's clear who's giving the marching orders not to go a penny below 52 percent. Look no further than the infamous letter that seven high-powered agents sent to their clients on Oct. 3, strongly urging the players not to make any further concessions beyond 52 percent of BRI.

The letter, signed by agents Arn Tellem, Billy Duffy, Mark Bartelstein, Dan Fegan, Leon Rose, Henry Thomas and Jeff Schwartz, was in part a responsible effort to educate clients who may not have been intimately familiar with how severe the owners' demands really were. Nothing wrong with that. But the timing clearly was intended to pressure Hunter and Fisher into standing firm at 52 percent -- the proposed players' share dissected in the letter -- the day before a critical bargaining session at the Westin Times Square.

Sure enough, the talks broke down on Oct. 4 over the BRI split, with one of Schwartz's top clients, Paul Pierce, suddenly immersed in the talks. Despite all the system compromises that have been made since then, the two sides have been unable to move past the impasse over BRI -- with Stern standing firm at 50 percent at the behest of hard-line owners and Hunter pressured by hard-line agents not to go lower than 52.

Steve Kauffman, who was a player agent during the 1998-99 lockout, saw first hand how agents can derail the bargaining process. It was 100 times worse in '98-'99, when super agent David Falk wielded enormous influence as the representative for the majority of players on the union's bargaining committee, including NBPA president Patrick Ewing.

By all accounts, the pressure from the Super Seven this time around has been mild by comparison. The agents who wrote that letter have quieted their calls for players to abandon the union through a rogue decertification, and one union official said Tuesday that most agents who reach out to Hunter and other NBPA executives have done so constructively.

But to the extent that agents are influencing Hunter and impairing his ability to close this deal, Kauffman questions not only their motivation but also, in some cases, their qualifications.

"If agents, individually or collectively, are trying to derail Billy and the players' union from concluding this deal, that is at best inappropriate and at worst irresponsible," said Kauffman, a respected expert on CBA issues who now represents coaches and front-office executives. "Obviously, the career span of an agent is far longer than that of a player. Many agents are primarily looking out for their own best interests.

"And to take it a step further," Kauffman added, "there are some that I believe don't fully understand the issues and how they affect their own clients."

Kauffman's comments, on the record and without fear of reprisal, raise two key points:

 Agents' attempts to influence the negotiations can be harmful even if their overriding point that the players have made too many concessions is accurate.

 Their motivation is not purely client-driven, but in some instances self-driven. Less money for players means less for agents, and further restrictions on player movement makes their roles less vital.

When hard-line owners dig in, at least it's their investment and their business model they're trying to protect. The agents?

"They have the biggest conflict of interest of anyone," a front office executive told CBSSports.com.

Given the opportunity to respond to Kauffman's statements, a prominent member of the Super Seven declined comment Tuesday.

Of course, there's no guarantee that players would take their agents' advice to vote down a deal that gives them less than 52 percent -- even after assuring the agents that they'd do so. At one NBPA regional meeting over the summer, a high-profile star pulled back the veil on how conflicted the players are when it comes to balancing what union executives tell them and when their agents say.

"You guys are like our parents," the player said, according to a person present at the meeting. "We love you both, but we don't know who to trust."

For one former front-office executive who has dealt personally with both players and agents, ratifying an eventual deal will come down to players being able to think for themselves.

"We always ask players: 'Do you work for your agent, or does your agent work for you?'" the executive said.

For now, they're all in this mess together. But the clear path out of it is there for the taking.


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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