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NBA players take Stern to court; do they know what they're getting into?


Derek Fisher and the players choose a difficult -- and potentially costly -- path to labor victory. (AP)  
Derek Fisher and the players choose a difficult -- and potentially costly -- path to labor victory. (AP)  

NEW YORK -- The most sobering moment in all of this, really, was when Billy Hunter -- the former executive director of the National Basketball Players Association -- introduced the 50 players in the room to their new leader.

He introduced them to an attorney, David Boies, a man the players had never met before.

Their futures are in his hands now, and in the hands of another lawyer, Jeffrey Kessler, as the NBA's collective bargaining fight moves from the acrimony and gridlock of the bargaining room to the uncertainty and potential doom of the courtroom.

There, in the courtroom, the outcome is far less certain and the stakes much, much higher.

There is much more to win, and much more to lose.

For both sides.

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So whose fault is this? The simple answer is: everybody's. It's funny, if you can allow yourself a moment of laughter while this decidedly unfunny clown show proceeds, that the great Bill Russell had it right last week when he said that hard-liners "on both sides" were jeopardizing an agreement.

"And moving forward," said Russell, one of the pioneers of the players' union when he was among 20 All-Stars who threatened to boycott the All-Star Game in Boston in 1964, "that's not going to cut it."

Russell, 77, winner of 11 NBA championships, was able to deftly cut through the B.S., yet the powerful, allegedly intelligent people running the NBA and its former players' union couldn't compromise on a list of six items that would've put the players back on the court by Dec. 15.

The union was effectively dissolved Monday when Hunter -- under intense pressure from powerful agents and facing backlash from his own players over a decidedly one-sided labor negotiation -- sent a letter to commissioner David Stern disclaiming interest in representing the players any longer in collective bargaining. Once the formality of a filing with the Dept. of Labor is accomplished, Messrs. Boies and Kessler will be free to file their antitrust lawsuit against the NBA -- a chance, finally, for all of Stern's enemies to engage him in the fight they've craved for years.

The immediate upshot, besides the fact that the highest-paid players in the NBA are now David Boies and Jeffrey Kessler, is that the chances for a 2011-12 season are as low as they could possibly be.

Stern quickly hopped on with league broadcast partner ESPN, and in a live interview, ridiculed the players' strategy as "a big charade" that's "not going to work." Previously, Stern has called the dissolution of the union "a nuclear option that I'm not sure doesn't blow up on the party that uses it."

There are numerous obstacles, not the least of which will be the potential for a legal battle over where the players' lawsuit should be filed. The potential for reward is high, as a winning antitrust case could result in billions in damages for the players. But victory is historically difficult to achieve, and lengthy.

Just ask Boies, who represented the NFL in the NFLPA's antitrust suit, which stopped short of a final judgment on anything other than a ruling that a federal judge did not have the authority to enjoin the lockout.

"The players have been badly misled," Stern said. "We were very close, and the players decided to blow it up. ... We're about to go into the nuclear winter of the NBA"

Let's take Stern's points one at a time: I agree that the players' tactic is not going to work. I agree that they have been misled. But in the analysis of the wounds the players are about to inflict on themselves, there is simply no way to absolve the negotiators and the owners who pushed this process so far, so relentlessly, with an eye only toward total victory and not compromise, from blame.

The blood, for the moment, is on the players' hands -- because they once again allowed themselves to be cornered in this negotiation, with another ultimatum and no good way out. And when professional athletes -- and Hunter -- have no other choice but to fight, they are always going to fight.

The owners pushed too hard, demanded too much, sought absolute victory to the point where they are going to wind up beating themselves. A $3 billion shift from players to owners by lowering player salaries from 57 percent of revenues to 50 percent -- a $300 million annual giveback, all of the money the owners said they were losing -- wasn't enough. The owners sent Stern in for blood, and he's got it now -- all over him.

The players? What was described Monday at the Westin Times Square -- site of the infamous blowup of talks over the BRI split on Oct. 4 -- had the feeling of a pre-ordained act to remove Hunter from power and transform this fiasco from a pointless staredown into the mother of all antitrust lawsuits.

As Hunter described, union officials explained the owners' proposal, which would've been replaced by a far worse one if the players didn't accept it. He then laid out the options: present it to the full body for a vote; reject it; make a counterproposal; or give the NBPA the authority to "do whatever they deem necessary and appropriate going forward," Hunter said.

"And then all of a sudden, the players said, 'No, we want to talk about decertification or disclaimer,' " Hunter said. "So it actually came from the floor. And when it came from the floor, then that's when we began to engage on the issue."

The players then decided that a disclaimer was the route they wanted to pursue, because, you know, players tend to spend a lot of time sitting around thinking of obscure legal strategies. Hunter said they didn't want to wait the 45-60 days for a decertification effort to bear fruit with an election authorized by the National Labor Relations Board.

The decision to disclaim, announced after the nearly four-hour player meeting, stunned even those agents who had been clamoring for the players to decertify for months. Agents held a conference call late Monday afternoon, and according to a person who was briefed on it, hardly any of them were happy with the path the union chose. Some 200 decertification signatures already collected from players likely will be filed with the NLRB as a backup plan in case the disclaimer strategy doesn't work, sources familiar with the decert movement said.

"This is honestly the last thing I would've done," one moderate agent said of the union's disclaimer. "I can't imagine these [players] truly know what they've gotten themselves into. ... I don't know an agent, including the decert agents, who are happy with this move."

A disclaimer was the one weapon at the union's disposal that causes the most chaos the fastest, so maybe there is legal genius in that alone. Once the players file their antitrust lawsuit, the league presumably would follow through on its threat to void all player contracts. Technically, the league would be free to start over -- with new rules, a new draft, and new ways of assigning players to teams. The players would bargain individually, and they wouldn't be considered scabs since they are no longer represented by a union.

But a disclaimer isn't a stronger hand than decertification, and unlike decertification, bargaining talks cannot continue between the league and union. All that can result is a settlement reached by the attorneys -- which at some point would take the form of a collective bargaining agreement if a simple majority of players voted to reinstate the union and the owners decided to recognize it. But that eventuality is a long way off, and it would be a moot point if a federal judge rules that the union's disclaimer tactic is a sham.

How and why a deal didn't get done to avoid all of this is the biggest sham of all.

Among a list of six key system items the players had asked last week to be negotiated further, the league moved modestly on several -- agreeing, for example, to allow tax-paying teams to use sign-and-trades for the first two years of the deal. The remaining list of issues of the highest concern to players heading into Monday hardly seemed worth losing a season over.

A 12 percent reduction in rookie wages and minimum salaries was simply a function of the reduction in salaries from 57 percent of revenues to 50 percent -- and the union's unwillingness to touch max contracts or agree to across-the-board rollbacks. The money had to come from somewhere. As an example, a 12 percent pay cut for the No. 1 pick in the draft would've decreased his rookie salary from $4.4 million to $3.9 million. The 10-year veteran's minimum salary would've gone from $1.4 million to $1.2 million.

All together now: asshattery.

The players also objected to the proposed 10 percent escrow withholding and a new mechanism to account for the likely overage in the players' 50 percent guarantee -- especially in the first two years of the deal. Again, if max contracts remained intact and there were no rollbacks, how else was the players' reduced share of revenues going to be accounted for in a new system?

Similarly, the hills where the owners chose to die were equally minimal compared to the powder keg that was blown up Monday at the Westin. They're getting $3 billion from the players over 10 years, and they allowed the season to be threatened over making sure that the Lakers can sign only a $3 million backup point guard instead of a $5 million one?


"None of it makes any sense," another agent said.

Except, perhaps, to the reprehensible people who had their fingers on the detonation button -- as Russell said, the hard-liners on both sides.

"This deal could've been done," Hunter said. "It should've been done. We're giving and giving and giving, and they got to the place where they just reached for too much and the players decided to push back."

They each pushed so hard that they fell over the cliff -- together.

"It just seems like the worst of all possible options," one of the moderate agents said.

Now, instead of seeing whether Hunter and Stern can sew up the final deal points that separate them, we are left wondering if the players can get a summary judgment in 60 days, as Hunter speculated, giving them enough time to compel league attorneys to settle and have, say, a 50-game season. But if the players lose -- or even, as the NFL players, get less than total victory -- they also will lose whatever shred of leverage they had. And potentially billions of dollars.

In other words, they'll long for the day when I sent that 50-50 cake up to a conference room in an East Side boutique hotel in late September, an innocent time in these negotiations that seems like years ago. They'll long for the days when they could sit and listen to Stern and Kessler pontificate for 16 hours, because that would be preferable to a losing legal strategy that will cost them a season of wages -- and much more.

If nothing else, one of the mysteries of the lockout was solved Monday -- in a way that makes you say, "Ah-hah" and "Uh-oh" at the same time.

At another Manhattan hotel on Oct. 10, the night Stern canceled the first two weeks of the season, none other than Boies joined a long list of lockout celebrity sightings. He had apparently been dining in the restaurant of the hotel where the league and union were bargaining. Coincidence? I suppose, although Hunter admitted Monday he had been meeting with Boies for several weeks -- preparing an exit strategy if the negotiations became broken beyond repair.

"I didn't know that the players would actually agree to that, agree to a disclaimer," Hunter said. "But I had put the process and put the structure in place. ... So I felt the combination of Boies and Kessler would be, from my perspective, an unbeatable team."

There's your Big Three of the 2011-12 season: Kessler, Boies and Hunter. There's your new Mount Rushmore of the NBA.

I asked Hunter in a quiet moment in a conference room of the Westin: "Do you think you'll ever be sitting across the bargaining table from David Stern again?"

"I don't know," Hunter said. "That's a good question."

One of many for which there are no answers, only more questions.

Before joining, 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

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