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NBA, players hoping for one more shot at settlement

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David Stern (center) and Adam Silver haven't spoken publicly since the players filed antitrust lawsuits. (AP)  
David Stern (center) and Adam Silver haven't spoken publicly since the players filed antitrust lawsuits. (AP)  

NEW YORK -- Despite the grim outlook of potentially lengthy and costly lawsuits, there are strong indications that NBA officials and attorneys representing the players want to take one more shot at reaching a settlement before the possibility of having close to a full season is devoured by the legal process.

Two people who have been briefed on the league's strategy told CBSSports.com the NBA is holding out hope a settlement can be reached in time for the season to begin no later than Christmas. One of those people said the process already is under way through what he described as "back-channeling," although sources from both sides professed no knowledge of such conversations.

A third person said that based on how vendor contracts and other financial arrangements were put in place, starting the season by Christmas would be optimal as far as preserving those relationships, and of course, revenues. Multiple people who have spoken with top NBA officials about the matter said it is understood that starting the season after Christmas is not viewed as a viable option.

More on NBA dispute

"The 50-game season like they had in '98-'99, the league doesn't want that," one of the people briefed on the NBA's strategy said.

"I don't know that there's an appetite for a 50-game season," another person familiar with the league's position said.

Deputy commissioner Adam Silver did not respond to a request for comment on the league's approach Friday.

Neither Silver, commissioner David Stern, nor any of the NBA's legal representatives has spoken publicly since the players filed two antitrust lawsuits Tuesday alleging the lockout is illegal -- one in California and one in Minnesota. But attorney David Boies, lead counsel for the players in the California case, said Tuesday the goal of the lawsuits wasn't to see them to their finality -- which could take years and bring everyone involved to their knees -- but rather to "resolve these issues and allow the players to start playing."

"Certainly, everybody in this building wants to have people start playing right now," Boies said Tuesday during a media gathering at the players' Harlem offices. "If it were up to the players, games would be being played right now."

One top member of the legal team representing the players told CBSSports.com on Friday he had yet to receive a call from the NBA's legal representatives. Some contact and preliminary dialogue would be required soon if enough time were going to be available to reach a resolution in time for the season to begin Dec. 25.

The two people who have been in contact with NBA officials both used the word "optimism" to characterize the league's attitude with regard to reaching a settlement with the players that would save the season. However, it goes without saying that time is not on their side. It will take about a month from the day an agreement is reached until the season can start, and the process is further complicated by the fact that no collective bargaining agreement can be had until the players reform as a union and the owners recognize it as the bargaining representative for the players. Next Friday is Nov. 25, and Thursday is the Thanksgiving holiday.

"It's all about the calendar," said one attorney involved in the legal process.

According to two people familiar with the players' strategy, one of the reasons the union disclaimed interest Monday -- signaling a formal end to the collective bargaining relationship -- was to lay the groundwork for an accelerated legal schedule compared to the option of decertification. Had the players initiated the dissolution of the union, they would've had to wait 45-60 days for the National Labor Relations Board to schedule an election. By then -- December or January -- the chances of having more than a 50-game season would've been lost.

While the union leadership would've remained in power to continue negotiations until the decertification election was held, the one thing both sides agreed on when the bargaining talks reached their conclusion on Nov. 10 was that the existing format and dynamic were not working. Stern and the union's lead negotiator, attorney Jeffrey Kessler, had developed an unhealthy and destructive disdain for one another and their vitriolic relationship was standing in the way of reaching an agreement, two people involved in the negotiations told CBSSports.com.

Removing the talks from the negotiating room and sending them to the legal arena changed the dynamics and the negotiators involved. Kessler, for example, remains on the players' legal team, but it was telling that he was the fourth attorney listed on the players' antitrust lawsuit in California. Boies and his partner, Jonathan Schiller, are taking the lead role for the players, with Billy Hunter, executive director of the former players' association, also on the legal team.

On the league side, the Big Three (so to speak) are Paul Clement, NBA general counsel Rick Buchanan and Jeffrey Mishkin, along with attorneys from Proskauer Rose, the NBA's longtime outside law firm. Interestingly, Boies and Clement worked together on the NFL's side of the NFLPA's antitrust lawsuit and thus have a close working relationship. Clement also brings as much legal star power to the arena as Boies. The former solicitor general under president George W. Bush, Clement has argued more cases before the U.S. Supreme Court than any other lawyer in America since 2000, according to a story last month in the New York Times.

The NBA has 30 days to respond to the players' lawsuits, and a decision could come sooner than that in the league's own lawsuit in the Southern District of New York. In that case, filed in August, the NBA sought declaratory judgment that the lockout could not come under antitrust attack through a dissolution of the players' union. After the players took that step Monday, lawyers for both sides filed letters with the court updating their positions.

A legal settlement that could eventually take the form of a collective bargaining agreement would be negotiated among the lawyers. But while some key aspects of that dynamic have improved with the shift from bargaining to the courts, formidable impediments remain: the hard-line owners and hard-line players and agents, some of whom may be emboldened by their unprecedented step of disbanding the union and forcing Stern and the owners to answer for their actions in a court of law.

According to legal experts, neither side should feel utterly confident that it would win if the case proceeded to oral arguments, summary judgment, injunctions, appeals and the rest of the maze of legality that could leave all parties involved regretting their failure to negotiate a deal when they had the chance.

That precious window is closing fast. The majority of players will miss their second paychecks in about two weeks, bringing the carnage on their side alone to about $400 million -- with more to come even if a settlement were reached soon. The owners will soon face the reality of nearly $1 billion in squandered national TV revenues, another billion in gate receipts, and damaged relationships with other sponsors and business partners -- not to mention fans.

Right, the fans. Remember them? Or perhaps a better way to put it is, do you remember who you are?


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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