|An old adversary is in touch with David Stern: Jim Quinn, former outside counsel to the NBPA. (Getty Images)|
NEW YORK -- The quest to save the NBA season is clearly running out of time. Lawsuits have been filed and refiled, complaints withdrawn, amended and consolidated. While burning through all that ink and midnight oil, nobody wants to be the first to pick up the phone and call the other side to discuss the only sane way to end this: a settlement.
The NBA and the players need someone to break the ice, someone who can speak plainly and calmly to both sides and move them out of the bunkers they've built and toward a possible deal.
Thankfully for those who want a basketball season, the ideally qualified person with the right relationships and experience and an impeccable reputation as a deal-maker has come forward to solve that problem.
|More on NBA dispute|
That person is Jim Quinn, who for nearly 20 years served as lead outside counsel for the National Basketball Players Association and who helped broker the deal that ended the 1998-99 lockout. Quinn's unique perspective as a longtime, formidable and respected adversary of commissioner David Stern covers multiple collective bargaining agreements as well as the landmark antitrust lawsuit spearheaded by Hall of Famer Oscar Robertson in 1976.
Reached by CBSSports.com Tuesday at the offices of Weil, Gotshal & Manges, where he is a partner and chairman of the global litigation team, Quinn confirmed he has spoken with both Stern and NBPA director Billy Hunter since the collective bargaining process broke down and the union disclaimed -- leading to multiple antitrust lawsuits.
Quinn characterized the conversations as "touchy-feely" and "off-the-record," and said they have occurred "in the past number of days."
"The reality is," he said, "sometimes off-the-record conversations can be useful."
Never more so than right now.
"I've always said that I'll be helpful in any way I can be," Quinn said. "Everyone would like to see that there is a season, so sure, I'd be helpful."
In addition to brokering an end to the '98-99 lockout, Quinn also teamed with current NBPA outside counsel Jeffrey Kessler on the successful antitrust lawsuit brought against the NFL by Freeman McNeil and on the recent NFL lockout settlement. Kessler left Weil in 2003 and brought the NBPA account with him, but the two have continued to work together on NFL litigation. NBPA general counsel Ron Klempner worked for Quinn at Weil, and Quinn also has longstanding relationships with several of the key NBA attorneys involved, including Jeffrey Mishkin and David Boies.
Stern and deputy commissioner Adam Silver declined interview requests Tuesday and also declined to answer questions sent to them through a spokesman regarding the status of settlement talks and whether they would agree to such talks if they were organized or overseen by Quinn. Other than a live televised interview with broadcast partner ESPN on Nov. 14, Stern has made no public comments since the union dissolved and launched antitrust actions against the league.
But the most important words are those being spoken privately, with Quinn in the role of back-channel facilitator that was described in a CBSSports.com story Friday by two people briefed on ownership matters. Asked what his best asset would be in brokering a possible NBA settlement in time to have a substantial season, Quinn said simply, "I know everybody."
For that reason and many others, Quinn is the ideal middle man to bring the two sides together, as the NBA's own website pointed out last month. One attorney who has crossed paths with Quinn many times over the years called him "a voice of reason if there ever was one."
The nearly five-month NBA lockout, which now represents the biggest threat to losing an entire NBA season to a labor dispute in the league's history, needs one of those badly. And it's finally got one.
"The most favorable outcome is that they somehow get together quickly and reach an agreement so that they can have a reasonable season," Quinn said. "I hesitate to guess what most likely outcome is.
"I think both sides want a settlement," he said. "I just don't know whether they can get one quickly."
According to people involved in the process on both sides, there is a common realization that this is the week a deal must come together to fulfill the league's desire to start the season by Christmas. And despite the lack of official communication between the parties and some obstacles that grew out of the players' antitrust actions, sources maintain that the framework of a settlement could be reached quickly once the dialogue progressed from the back channels to the formal stages.
"Everyone on both sides realizes it's settlement time," said a person who has been in frequent contact with negotiators.
One of the obstacles in the who-calls-whom-first dilemma has been that Hunter, no longer the bargaining agent for the players, faces potential legal entanglements if he is the one to initiate negotiations directly with Stern. If a settlement can't be reached in the next few days, league attorneys will proceed full steam with their defense of the players' lawsuit -- which includes ramping up their argument in the league-initiated case in New York that the players' disclaimer was a "sham," or negotiating tactic. Hunter picking up the phone and calling Stern, some attorneys believe, would bolster the NBA's legal argument.
Also, the fact that the players are no longer represented by a union and are now suing the NBA for potentially enormous damages hasn't removed one of the impediments Stern has long faced: his hard-line owners. While the shift from negotiating to the courts has caused some moderate owners to soften their position and favor a settlement, sources say some hard-line owners have dug in even more and "want to make the players pay," one of the people said.
So, too, have some hard-liners on the players' side become emboldened by the prospect of a landmark damages decision against the NBA. Some on the players' side have pushed in the past week to harden their position compared to where the bargaining talks broke down. For such attorneys, it's a simple matter of risk assessment: If the owners would face a $6 billion damages judgment for a completely lost season, their economic offer should improve by whatever percent chance league attorneys think they have of losing the case.
So, for example, if the NBA predicts a 25 percent chance of losing, it should offer the players $1.5 billion more over 10 years than it offered in its most recent proposal. That calculates to about 3 percentage points of BRI, which would put the split at 53-47 in favor of the players. There are "far too many irrational people on both sides for it to proceed that way," said one person who has been briefed on the various bargaining stances. Indeed, hard-line owners likely would be pushing for those numbers to be flipped in the league's favor.
Part of Quinn's job would be to identify the rational people on both sides and try to engage them in making a deal that would resemble the 50-50 economic split that both sides had agreed to when the talks broke down. Then it's a matter of probing both sides for a compromise on the list of unresolved system issues. For the players, the most important items were the rate of increase in luxury tax for repeat offenders; tax-paying teams' access to spending and trade exceptions; and the method for identifying when a team is considered to be above the tax threshold -- as in, before or after a signing that would push the team over the line.
For attorneys who have brokered far more complicated deals -- and nearly all of those involved in this case have done so -- this has to come across as a settlement that could be hammered out in a couple of days.
After years of posturing, months of bargaining, billions of concessions from the players and nearly two months of the season lost, those days are here. The one thing people on both sides agree on is that if significant progress isn't made by Friday -- with final details to be wrapped up over the weekend -- then the chances of a season starting by Christmas will be gone. With little appetite on either side for a 50-game season starting after New Year's, and with hard-liners becoming more emboldened by the minute, these next few days aren't just about saving a Christmas opener for the NBA.
They could be about saving the whole thing.
Someone who's done that already is talking to both sides, and stands ready to do whatever he's asked to broker a settlement.
"I think there's still a chance," Quinn said. "I'm happy to be helpful, if asked."
So there's no more need to stand on ceremony and wait for the other side to call. But when the phone rings and Jim Quinn is on the other end of the line, it's in in everybody's best interests to pick it up.