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Players should pick a labor option, understand it and get a deal

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Adam Silver and David Stern worked the information front lines Sunday with a Twitter Q & A. (Getty Images)  
Adam Silver and David Stern worked the information front lines Sunday with a Twitter Q & A. (Getty Images)  

NEW YORK -- In the crucible of what has become the 11th hour of the lockout, the hours and minutes that may determine whether there will be a season, the players and stars of the sport -- more important than in any other -- had to take a back seat to something else.

The most precious commodity in basketball during these dark times isn't Kobe Bryant, Dwight Howard, Dwyane Wade or Kevin Durant. The King himself, LeBron James, has been successfully dethroned and replaced by a far more valuable asset: information.

As players begin digesting what is, for all intents and purposes, the last offer from the league that will give them a 50 percent share of the sport's revenues and preserve the 2011-12 season with only one missed paycheck, the battle between accurate and inaccurate interpretations of what that proposal contains is more epic than any Lakers-Celtics Finals could be -- more important than Kobe vs. LeBron in June with a championship on the line.

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This is the NBA labor championship happening Monday, when player reps from all 30 teams -- and potentially a much larger group of players -- gather in Manhattan to consider their options. They're pretty simple, really: send the league's latest proposal to the full union membership for a vote, presumably with some minor amendments if word comes down from the owners' labor relations committee that it would accept them, or decline the proposal and invite chaos. The choice behind curtain No. 2 would incite mother of all anti-trust fights, one that would inflict mortal wounds on both sides and jeopardize the chances that a single NBA game will be played before November 2012.

A third choice -- rejecting the proposal and betting that the NBA would continue negotiating from the 47 percent, hard-cap proposal it has threatened -- is viable, too. But it's also true that the players may never again see this good a deal, and certainly not one that would provide a 72-game season with only one missed paycheck.

While recognizing those options is easy, choosing one will be anything but. There are serious consequences of going down each path that the players need to consider, and as I've already stated, it's not my job to tell them what to do. This is their choice, their business, their legacy, and the decision will be theirs to live with for a long time.

What I can control is the information I provide to the players about the proposal they are considering, and what their options are if they reject it. There was such an immediate and widespread groundswell of opposition to what both sides called the league's "revised" proposal delivered Thursday night, that it's worth pointing something out again: the notion that this proposal is worse than the previous one furnished by the league is, as one person who has read it said to me, "Crap."

It's not a great proposal for the players, but it isn't worse than the one 30 player reps decided last Tuesday not to send to their constituents for a vote. That very perception compelled commissioner David Stern and deputy commissioner Adam Silver to field and answer questions about the proposal on Twitter on Sunday night -- a night when information was more valuable than BRI.

In addition to the modest but fairly lengthy list of enhancements reported here, a second person who has seen the owners' latest proposal told CBSSports.com Sunday that the league also moved on another significant roadblock to getting a deal. The added penalties for teams that operate frequently above the luxury-tax threshold -- the so-called "repeater tax" -- have been revised to apply to such teams that stay above the tax for a fourth time in five years. Previously, the added penalties would've applied to teams staying above the tax line for a third time in five years -- something that happened only eight times in the previous six-year agreement, according to the league office. Only four times in the six-year deal did a team pay luxury tax for a fourth time in five years, and they were the very teams the new system is designed to curtail: the Knicks, Lakers, Celtics and Mavericks.

Two issues that immediately galvanized players and agents against the proposal -- a provision allowing teams to send players to the D-League and dramatically cut their salaries for the first five years of their careers, and an age limit of 20 -- aren't even in the proposal, multiple people who have seen it told CBSSports.com. Those two potential provisions, both of which in some form I believe would improve the game, are for another discussion for another day. But for now, they are not in writing, in addition to 30-40 other so-called B-list items that would not be hotly contested by either side once there is agreement on the framework of the major deal points.

There appears to be only one new detail in the revised proposal that isn't in favor of the players compared to the last offer -- though to be fair, most of what has been negotiated for the past 2½ years has gone against the players: a 12 percent reduction in the rookie scale and minimum salaries. League officials say this is necessary to conform with reducing the players' share of revenues from 57 percent in the previous CBA to 50 percent. Similar to the compromise on sign-and-trades for tax teams, which the league agreed to allow for the first two years of the deal, an easy solution would be to phase in this provision in Year 3. Any overage to the players during the transition would be shared equally across all income and experience levels through escrow withholding.

Given how far both sides have come, there still appears to be room for compromise on several key issues the players object to in the latest proposal. For example, since the tax rates vary based on how high a team's payroll is, why not have different rules for sign-and-trades and the use of exceptions based on the same formula? For example, a team that is $10 million or more above the tax could use the new mini-mid-level exception or complete a sign-and-trade in a given year -- but not both. Teams less than $10 million over the tax could use both.

Anger among players and agents that tax teams would be restricted to the mini-mid-level -- three-year deals for free agents starting at $3 million, as opposed to the four-year deals starting at $5 million for non-tax-payers -- also is misguided. Those provisions are designed to curtail spending among the biggest-spending teams in the league, and opponents of the proposal are forgetting an important feature that both sides have agreed to: the amnesty clause, by which each team can waive one player and have 75 percent of his remaining salary removed from the cap and tax. Such players would still receive 100 percent of their salaries, but their former teams wouldn't be crippled by dead money on the cap.

Amnesty -- and the previously agreed to "stretch" provision, which would allow teams to spread a waived player's payments over twice the remaining years on the deal, plus one -- provide reasonable tools that would keep teams from getting hamstrung by bad contracts. But there's something else to remember. Presumably, many of the players who'd sign mini-mid-level deals with tax-paying teams would have become free agents via the amnesty clause or stretch provision. So if Gilbert Arenas gets waived by the Magic via the amnesty clause, a new deal with a contender starting at $3 million would hardly be tragic -- considering Orlando would still be paying him $20.8 million next season.

As with all of these issues, there's further compromise that can and should be reached. Perhaps a player waived under the amnesty provision is eligible for an even further reduced mini-mid-level salary while he's still getting paid by his former team -- maybe even as low as the veteran's minimum -- and his salary goes up once his former team stops paying him. That discount might create room to offer other free agents who weren't waived via amnesty a larger mid-level salary with a tax-paying team -- say, a four-year deal starting at $3.5 million or $4 million. Tinkering around the edges like this, and being creative, might just be enough to salvage this deal and avoid the catastrophic consequences of not doing so.

But the widely circulated belief that the players shouldn't even consider voting on this proposal because it's worse than the previous one has two culprits who should be held accountable: 1) agents who were going to marshal all their power and resources to torpedo it no matter what; and 2) the league and union negotiators who allowed it to be portrayed publicly as an owner-generated, take-it-or-leave-it ultimatum.

According to two people briefed on the negotiations, Stern and union chief Billy Hunter concluded Thursday night that they'd gone as far as they could go -- and that the proposal Hunter and the entire executive committee agreed was worthy of presenting to the player reps was their collective work. Except the union made a tactical error by failing to publicly take ownership of it Thursday night, providing valuable time and momentum for those seeking to stop the deal. Also, Stern couldn't bring himself to resist one more ultimatum -- one more gun-to-the-head, strong-arm negotiating tactic -- when he threatened once again to pull the proposal and revert to a far worse, 47-percent deal for the players including a hard cap and salary rollbacks if they didn't accept it. "I couldn't agree any more," one NBA team management source said. "There was a time for ultimatums and negotiating tactics, but that time is not now. That time is over."

If league negotiators agree to discuss presumably minor amendments to the deal before Hunter agrees to send it to the full membership for a vote, they ostensibly would be standing down on the 47 percent ultimatum -- at least temporarily. If they hadn't presented the proposal that way in the first place, the visceral opposition to it probably never would have gained so much momentum.

But either way, if the player reps -- following a meeting Sunday of the union leadership and executive board -- decide Monday not to put the proposal up for a vote, the menu of consequences is grim and should be properly understood.

Agents already have around 200 player signatures on decertification cards ready to be filed with the National Labor Relations Board, an action that would start a 45- to 60-day clock on a possible election to dissolve the union and take the players' fight to federal court under anti-trust law. The benefits of that approach are that the union leadership would remain in charge until the election is held, and thus could continue negotiating with the league in an effort to save the season. Also, an employee-initiated decertification has a better chance of holding up in court than a disclaimer of interest initiated by the union leaders, which could be viewed as a "sham" or an act of convenience in order to gain leverage in negotiations.

Among the many perils of decertification would be that the NLRB may never agree to authorize an election unless the NBPA withdraws its pending unfair labor practices charge against the NBA. This is a provision designed to protect employees on the basis that they shouldn't be forced to give up union representation due to potentially unfair labor practices carried out by their employers. So there are two issues that could become embroiled in lengthy court fights: whether an election should be scheduled at all, and if one is scheduled and the union is dissolved, which court has jurisdiction over the players' anti-trust claims. The league already has filed a lawsuit in the Southern District of New York, whereas the players would prefer to take their case to a California court in the more employee-friendly Ninth Circuit.

By the way, the NBPA is unlikely to withdraw its unfair labor practices charge, because its anti-trust attorneys believe it is the union's best -- and perhaps only -- chance of getting an injunction from a federal court lifting the lockout. The most prominent example of this in sports law was the injunction issued by then U.S. District Judge Sonia Sotomayor that effectively ended the Major League Baseball strike in 1995 and resulted from an NLRB complaint.

Regardless of what the agents do, does Hunter have any more options if his players do not want any part of this deal? Yes, he could send Stern a disclaimer letter, which would effectively dissolve the union immediately and transform it into a trade association with Hunter and the other NBPA leadership still in charge but not empowered to negotiate with the NBA. The anti-trust case would proceed, just as it would with decertification -- and with the same odds, if not more, of an unfavorable outcome. This is the approach the NFL took, and it didn't work.

"Stern is not afraid of an anti-trust action because you can't get an injunction from an anti-trust case," said a person who has been briefed on the NBPA's legal options. "And Stern believes it would scare the players even more. ... Disclaimer and anti-trust is a tremendous waste of time and money. Huge amounts of money will be spent on an anti-trust case, and it would go nowhere."

For this reason and many others -- numbering in the billions, as in dollars -- there should be a concerted effort on both sides to reach an agreement they can live with this week as opposed to detonating themselves in a legal fight that will not end well for anybody. If that means the players have to push for more compromise on the outstanding issues, so be it. If that means Stern has to leave the ultimatums in his desk drawer and turn his negotiating talents on closing the deal instead of getting his way, that, too, would be helpful.

Anything less would be catastrophic, and carry consequences from which neither side may ever recover.

No more threats. No more ultimatums. No more defiance and red meat for the constituents. Get a deal done, make sure you understand it, or prepare for Armageddon -- and make sure you understand that, too.

And this goes for both sides.


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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