Blog Entry

Talks resume; is there time?

Posted on: November 23, 2011 3:04 pm
Edited on: November 23, 2011 6:52 pm
NEW YORK -- It began with sources indicating that back-channel discussions were under way last week, then took the next logical step when the identity of the third-party intermediary facilitating the resumption in talks was revealed.

Now, negotiations to save the NBA season are back on in earnest, with the focus on ending the lockout with enough time to begin the 2011-12 season by Christmas, as reported Nov. 18.

Talks resumed Tuesday and are expected to continue Friday after a break for the Thanksgiving holiday, two people with knowledge of the discussions said. Yahoo Sports first reported the formal resumption of negotiations, and the New York Times reported that a Christmas Day tipoff would result in a 66-game season that would end in late April with the NBA Finals pushed back about one week.

With the nearly five-month lockout now a legal matter, the talks are taking place in the form of a litigation settlement. Is there time? Sources familiar with the negotiations maintain that if both sides are serious about finishing the negotiations that fell apart Nov. 14, when the union dissolved and the players began pursuing antitrust damages, a deal could come together relatively quickly.

Billy Hunter, director of the National Basketball Players Association, mentioned Tuesday at the players' Thanksgiving turkey giveaway in Harlem that he expected a settlement conference to take place under the supervision of a federal magistrate in Minnesota -- where the players' antitrust claims have been consolidated -- and that it could happen as early as next week. So if lawyers and negotiators could arrive at some semblance of an agreement by the end of the weekend, it's conceivable that the settlement could be finalized by early next week -- leaving time to open the season by Christmas, with not a minute to spare.

The league would require about a 30-day window to finalize the deal and hold an abbreviated free-agent period, preseason schedule and training camps before play could begin.

Both the league office and the office of the former players' association were in lockdown mode Wednesday, a sure sign of the serious nature of the discussions. Commissioner David Stern hasn't spoken publicly in eight days, and the NBA had no comment on the negotiations except to say that the league "remains in favor of a negotiated resolution," a league spokesman said.

Time will be especially of the essence since the settlement couldn't take the form of a collective bargaining agreement until the players voted by simple majority to reform the union and the owners agreed to recognize the union as the players' bargaining agent. The deal would then go to the players and owners for a ratification vote. All of this would have to be done with extraordinary speed.

As we well know, expedience has not been a hallmark of these negotiations. But the time to deal, sacrifice and show all your cards is now if either side wants to have a season instead of costly, lengthy antitrust litigation with a very uncertain outcome for both sides. And the remaining issues to be agreed upon -- principally restrictions on sign-and-trades and mid-level signings that the league is trying to place on high-spending teams -- are relatively minor compared to the big-ticket item of a 50-50 split of revenues that owners and players already have negotiated.

When the players rejected the owners' latest ultimatum on Nov. 14, they also were concerned about accelerated tax rates the league was proposing for teams that stay above the luxury tax line for multiple years and the interpretation for when a team is considered to be above the tax threshold for the purposes of using exceptions.

As a matter of protocol -- and legality -- former union president Derek Fisher is not participating in the talks. Fisher would only rejoin the picture if and when the union were reformed to approve a possible settlement. So with the talks in the hands of the lawyers, the question of what the starting point is in the negotiations becomes an important one.

When last the two sides bargained, they had basically agreed on a 50-50 split of revenues and had about a half-dozen system-related issues that separated them. The first question is whether or not each side's economic position changes when the negotiations resume. Hard-liners on both sides say the positions should harden, due to the economic losses that have been incurred and the threat of expensive litigation. But Jay Himes, a longtime antitrust attorney and partner at Labaton Sucharow, said the most expeditious result would come if the two sides simply picked up where they left off.

"I don't think anybody will dramatically reassess their position and say, 'Oh, wow, suddenly the calculus has changed considerably," Himes said. "... You can say, 'Well, now it's an antitrust lawsuit, give the players an extra 15 percent because they went out and got themselves a star litigator,' as they did. It sounds good, I suppose, for public consumption, but the science is not nearly that precise when you get in the negotiating room."

And neither is the risk assessment for either side. While the players may feel emboldened temporarily by the prospect of a potential $6 billion damages judgment against the owners if the season were lost, Himes cautioned that leverage can shift "from day-to-day and from decision-to-decision." And while he believes the players "on the merits, have a better shot" at ultimately winning in court, Himes said losing the entire season would be the "worst-case scenario" for them.

"From the players' point of view, at some point the season just dies, and that's really bad for them because most of them don't have good sources of outside income," Himes said. "And if the image of the NBA does suffer from a prolonged lockout, the opportunities for endorsements aren't as attractive because the advertisers don't want to pay for a tarnished brand. So that's a real disaster for the players. I'm sure they would not like to see the season killed."

Himes, co-chairman of Labaton's antitrust group and former antitrust bureau chief in the New York attorney general's office, pointed out another complicating factor for the owners that has flared up to varying degrees throughout the 2 1-2 years of bargaining talks: dissension among high-revenue and low-revenue teams. According to a person with knowledge of ownership activities, the owners recently held another internal discussion about how more money will be diverted to help struggling teams in small markets. Even at this late date, with another month of games and quite possibly the entire season in jeopardy, the owners still were not able to reach agreement among themselves on revenue sharing, the person said.

"That laundry is not necessarily being aired at the moment, but I'm sure that it's affecting the negotiating position of the teams when they leave the players and go back into their own conference room and start talking about where the money is coming from and going to," Himes said.

More than anything, the greatest and most relentless driving force behind this renewed push to get a deal is something neither side can control: the calendar. If the players can count on roughly the same schedule the NFL players got via the same U.S. District Court in Minnesota, they're looking at more than three months before an appeal would even be heard by the 8th U.S. Circuit Court of Appeals. By then, Christmas games would be a distant memory, and the entire season would be toast.

Thus, the time is now to salvage it. 


Since: Sep 4, 2007
Posted on: November 28, 2011 11:31 am

Talks resume; is there time?


I always have thought the same thing.  I dont watch baseball or care about it so I never go to their boards.  What is it about the NBA that makes people that are not interested in it actually read the articles and then comment on them?  Big mystery to me.

Since: Dec 30, 2006
Posted on: November 24, 2011 11:05 pm

Talks resume; is there time?

I am right there with you. I just checked on NBA tab for first time in a couple weeks, see they are still not playing and quite frankly, don't really care!!!  My life still goes on quite nicely!

Since: May 21, 2009
Posted on: November 24, 2011 6:01 pm

Talks resume; is there time?

I don't care for the way has developed over the past 2 decades. I used to care, now I don't and this whole fiasco is an excellent time to vent my opinion that I don't care or like the NBA as it is. I'm proud to post WHO CARES!!!!

Since: May 4, 2011
Posted on: November 24, 2011 3:52 pm

Talks resume; is there time?

It still amazes me how so many people who don't care about the NBA find time to follow the stories and comment about it. I for one don't watch hockey, baseball, soccer or any other sport where the score is usually single digits. I don't care about those sports so i've never read a story about them or commented about them, that to me shows indifference and a lack of concern. Going on a site and bashing a league that many fans do care about shows the exact opposite.

Since: Nov 3, 2010
Posted on: November 24, 2011 3:40 pm

Talks resume; is there time?

Nobody cares.  When do pitchers and catchers report?

Since: Nov 9, 2008
Posted on: November 24, 2011 3:01 pm

Talks resume; is there time?

Here's to hoping the league few care about goes away for the entire year so that the Thugs learn their lesson once and for all. Thier negotiation tactics only cost fans money and no one else. Wake up America.

Since: Mar 21, 2009
Posted on: November 24, 2011 2:40 pm

Talks resume; is there time?

Just ONE good reason why anyone should care???

Since: Jan 30, 2010
Posted on: November 24, 2011 2:29 pm

Talks resume; is there time?

Tim Tebow could get this resolved in 10 minutes if that *rolling eyes*

Since: Aug 22, 2006
Posted on: November 24, 2011 2:25 pm

Talks resume; is there time?

If the players get a good CBA maybe there is hope for the working stiff to show some of the same moxy in holding out until you get paid what you are worth.

Oh yeah, you hold out montsho11..and your job will end up in India...yeah its their cause because most of them will be uselss when they are done playing and need money to pay for all the babies they are sucks anyway, let it die...and then maybe the guys in college will actually stay 4 years and finish their degrees...

Since: Jul 9, 2008
Posted on: November 24, 2011 1:55 pm

Talks resume; is there time?

I hope they stay locked out forever!

The views expressed in this blog are solely those of the author and do not reflect the views of CBS Sports or