Posted on: November 15, 2011 8:24 pm
Edited on: November 15, 2011 11:45 pm
 

Players sue NBA for antitrust violations

NEW YORK -- NBA players sued the league alleging antitrust violations Tuesday, in part using commissioner David Stern's own words against him in making their case that the lockout is illegal.

With two antitrust actions -- one in California naming superstars Carmelo Anthony and Kevin Durant among five plaintiffs, and another in Minnesota naming four plaintiffs -- the players are seeking summary judgment and treble damages totaling three times the players' lost wages due to what lead attorney David Boies referred to as an illegal group boycott.

"There's one reason and one reason only that the season is in jeopardy," Boies told reporters at the Harlem headquarters of the former players' union, which was dissolved Monday and reformed as a trade association to pave the way for the lawsuits. "And that is because the owners have locked out the players and have maintained that lockout for several months. ... The players are willing to start playing tomorrow if (the owners) end the boycott."

The California case, filed Tuesday night in the Northern District, named plaintiffs who represent a wide array of players: Anthony, Durant and Chauncey Billups (high-paid stars); Leon Powe (a mid-level veteran); and Kawhi Leonard (a rookie). The plaintiffs in a similar case filed in Minnesota are Caron Butler, Ben Gordon, Anthony Tolliver and Derrick Williams.

Boies said there could be other lawsuits, and at some point, they could be combined.

It is possible, Boies said, that the players could get a summary judgment before the NBA cancels the entire season -- essentially a two-month timeframe. By that point, with the clock starting on potential damages Tuesday -- which was supposed to have been the first pay day of the season for the majority of players -- treble damages could amount to $2.4 billion.

"We would hope that it's not necessary to go to trial and get huge damages to bring them to a point where they are prepared to abide by the law," Boies said.

A statement released by the league office Tuesday night, spokesman Tim Frank said: "We haven't seen Mr. Boies' complaint yet, but it's a shame that the players have chosen to litigate instead of negotiate. They warned us from the early days of these negotiations that they would sue us if we didn't satisfy them at the bargaining table, and they appear to have followed through on their threats."

Earlier, Boies seemed to have anticipated this response, noting that the NBA's lawsuit in the Southern District of New York -- in which the league sought a declaratory judgment pre-emptively shooting down an eventual dissolution of the union -- came first.

"The litigation was started by the owners," Boies said. "... This case was started months ago when the NBA brought it there."

The crux of the players' argument is that, absent a union relationship to shield them from antitrust law, the 30 NBA owners are engaging in a group boycott that eliminates a market and competition for players' services and are in breach of contract and violation of antitrust law. The players are seeking to be compensated for three times their lost wages as permitted by law, plus legal fees and any other relieft the court deems necessary and appropriate.

One of the many issues to be resolved is where the lawsuits ultimately will be heard. The NBA almost certainly will file a motion seeking that the players' complaints be moved to the Southern District, which is in the more employer-friendly 2nd U.S. Circuit Court of Appeals. The Northern District in California is in the more employee-friendly 9th Circuit, while the Minnesota case was filed in the district residing in the 8th Circuit, where the NFL players ultimately fell short in their quest for a permanent injunction lifting the lockout.

The NBA players are not seeking a permanent injunction; rather, Boies said they are pursuing the more expeditious and fact-based summary judgment, which could save months of legal wrangling.

UPDATE: Boies asserted that the plaintiffs have the right to choose which appropriate court has jurisdiction over their lawsuit, and that the NBA's lawsuit in New York was premature -- since the NBA players had never before in their history of union representation since the 1950s disclaimed interest or decertified until Monday. In contrast to the NBA's argument that dissolution of the union and an antitrust action were the players' goals all along, the lawsuit laid out that the players participated in bargaining with the league for more than four years after they were first allegedly threatened with massive rollbacks of salaries and competition for their services. Boies said the players had continued to bargain for months while locked out, offering a series of economic concessions totaling hundreds of millions of dollars until they finally reached the owners' desired 50-50 split in the final days of negotiations.

Unlike the NFL Players' Association's failed disclaimer of interest and antitrust action, in which the players' case was harmed by the lack of certainty over whether the collective bargaining process had ended, Boies said there was no disputing that bargaining talks had concluded in the NBA -- and that Stern himself had ended them by presenting a series of ultimatums and "take-it-or-leave-it" offers that the players could not accept.

"They had an opportunity to start playing with enormous concessions from the players," Boies said. "That wasn’t enough for them. If the fans want basketball, there’s only one group of people that they can get it from, OK? And that’s the owners, because the players are prepared to play right now."

The NBA undoubtedly will argue that it was the players who ended bargaining when their union disclaimed, and that the disclaimer is a sham, or a negotiating tactic as opposed to a legitimate dissolution.

The lawsuits came one day after the players rejected the league's latest ultimatum to accept their bargaining proposal or be forced to negotiate from a far worse one. The National Basketball Players Association at that point disclaimed interest in representing the players any longer in collective bargaining with the league after failing to reach an agreement during the 4 1-2 month lockout that was imposed by owners July 1.

In the California case, Boies, his partner, Jonathan Schiller, and players' attorney Jeffrey Kessler laid out a meticulous case that the collective bargaining process had been ended by the owners and that the players had no choice but to dissolve the union and pursue their case via antitrust law. They laid out a series of concessions the players made in an effort to reach a deal, including a "massive reduction in compensation" and "severe system changes that would destroy competition for players."

The lawsuit quoted Stern's own demands when he issued two ultimatums to the union during the final week of talks, threatening the players both times to accept the offer (with a 50-50 revenue split and various restrictions on trades and player salaries) or be furnished a worse offer in which the players' salaries would have been derived from 47 percent of revenues in a system that included a hard team salary cap and rollbacks of existing contracts -- all deal points the two sides had long since negotiated past and abandoned.

Asked if Stern made a mistake issuing the ultimatums that ended the talks, Boies said, "If you're in a poker game and you bluff, and the bluff works, you're a hero. Somebody calls your bluff, you lose. I think the owners overplayed their hand."

In the California lawsuit, the players' attorneys alleged that the owners' bargaining strategy was hatched during a meeting between league and union negotiators in June 2007. In that meeting, the lawsuit alleged, "Stern demanded that the players agree to a reduction in the players' BRI percentage from 57 percent to 50 percent," plus a more restrictive cap system. Stern and deputy commissioner Adam Silver told Hunter, according to the lawsuit, that if the players did not accept their terms, the NBA was "prepared to lock out the players for two years to get everything." Stern and Silver assured Hunter in the meeting that "the deal would get worse after the lockout," the lawsuit alleged.

The threats of getting a worse deal after the lockout if the players didn't accept the owners' terms were repeated in a letter to the union dated April 25, 2011, according to the lawsuit -- which then laid out the contentious, sometimes bizarre, and almost indisputably one-sided negotiation that transpired over the next few months.

"I will give the devil their due," Boies said. "They did a terrific job of taking a very hard line and pushing the players to make concession after concession after concession. Greed is not only a terrible thing, it's a dangerous thing. By overplaying their hand, by pushing the players beyond any line of reason, I think they caused this."

Boies said it was in neither side's best interests for the action to proceed to trial, which could take years and multiply the threat of damages against NBA owners. Even in their current capacity as members of a trade association, the players could have a settlement negotiated on their behalf among the attorneys for both sides. The settlement could then take the form of a collective bargaining agreement, but only after the majority of players agreed to reform the union and the owners agreed to recognize it.

Another option would be for a federal judge to require both sides to participate in mediation under the auspices of a federal magistrate; attendance would be required, though the results wouldn't be binding.

"There's lots of ways to get started, but it takes two to tango," said Boies, who once sued Microsoft in an antitrust case and represented Al Gore in his failed 2000 presidential bid based on a disputed vote count in Florida.

"If you've got somebody on the other side who is saying, 'It's my way or the highway, it's take it or leave it, this is our last and final offer and you will not see negotiation,' you can't resolve this," Boies said. "That, I will predict, that will stop, OK? There will come a time when the league faces the reality of the exposure that they face under the antitrust laws, the exposure that they face because of fan dissatisfaction with their unilateral lockout, the exposure they face by having other people in the business of professional basketball. And they will believe it is in their best interests to resolve this case.

"I can't tell you when that will happen," Boies said. "But I will tell you that it will happen, because those forces are too strong for anybody to resist indefinitely."





Posted on: November 15, 2011 4:08 pm
 

Decert plans continue; multiple lawsuits?

NEW YORK -- As lawyers representing NBA players who plan to sue the league for antitrust claims weighed their legal options Tuesday, other attorneys involved in the decertification movement still were planning to file players' petitions seeking to dissolve the union on their own, a person involved in the process told CBSSports.com.

While the letter of disclaimer sent by former union executive director Billy Hunter to David Stern Monday effectively dissolved the union and paved the way for an antitrust action against the league, agents representing some 200 players who already have signed decertification cards believe it will help the players' cause to submit them to the National Labor Relations Board. The agents believe that a statement from far more than the 30 percent of players required to initiate a vote ousting the union leadership will help the union's argument in federal court that the disclaimer of interest was a last resort and not a negotiating tactic or a "sham."

"The players gave up everything they could possibly give, and they still couldn't get a deal done," the person involved in decertification said.

In addition, the filing of decertification petitions would be proof that Hunter had no choice but to disclaim interest in order to get an expedited remedy for players. If he hadn't, the players were going to vote him out anyway -- which would've resulted in a more lengthy legal process since the players would've had to wait 45-60 for the NLRB to authorize an election. For the players to move forward with their decert case, the NBPA's unfair labor practices charge against the league -- filed in May and amended in July, when the NBPA was still a union -- would have to be withdrawn.

Meanwhile, one of the options the players' antitrust attorneys are considering is whether to file multiple lawsuits against the NBA. The main class action would be on behalf of players under contract, and logically would not include a player whose last name begins with the letter "A." Plaintiffs are listed alphabetically, and the name with the most impact would be that of future Hall of Famer Kobe Bryant -- although Bryant's level of interest in being listed as the lead plaintiff is unknown. Bryant, in the final few years of his career, has deliberately taken a secondary role in the labor talks, preferring instead to allow players who would be most affected by the outcome to take the lead.

A second potential lawsuit would be specifically on behalf of the league's rookies and free agents, none of whom is under contract. The legal reasoning flows from the majority opinion by the 8th U.S. Circuit Court of Appeals in the NFL Players Association's antitrust lawsuit against the NFL. The panel made a distinction in its opinion about rookies and free agents that some antitrust lawyers have interpreted as a sign that courts would be more likely to determine that the NBA's lockout is illegal within the narrow scope of players who are not under contract. In the NFLPA's case, the 8th Circuit strongly implied that employees not under contract could not be locked out, but did leave room for those players to be included in the lockout once they were given a chance to market their services and negotiate contracts with teams.

The players' goal in the antitrust action is to get a summary judgment in federal court -- either in the Southern District of New York, where the NBA already has established the venue with a pre-emptive lawsuit against the NBPA, or a court in a more friendly appeals circuit -- that would include treble damages (three times the players' monetary losses). If such a judgment could be achieved in 60 days, as Hunter predicted Monday, the players will have missed paychecks totaling about $800 million -- making the potential for treble damages $2.4 billion.




Posted on: November 14, 2011 2:56 pm
Edited on: November 14, 2011 8:54 pm
 

NBA players blow up union, take fight to court

NEW YORK -- Unable to reach a collective bargaining agreement with the NBA, the union representing the players dissolved Monday and paved the way for a potentially lengthy and ugly antitrust lawsuit to be filed within days.

With a unanimous show-of-hands vote from as many as 50 players, the union sent a disclaimer of interest letter to commissioner David Stern, which effectively ended the National Basketball Players Association's role as the collective bargaining agent for the players. Outside counsel Jeffrey Kessler and star attorney David Boies -- whom the players met for the first time Monday -- will lead the legal team that will sue the NBA alleging antitrust violations.

"We've negotiated in good faith for over two years," said Billy Hunter, who now becomes executive director of the National Basketball Players Trade Association -- no longer the leader of the players' union. "The players just felt that they've given enough."

Stern, speaking live on league broadcast partner ESPN, called the players' tactic "a charade" and characterized it as a "magical trick" that ultimately will fail.

"What they've done is destroyed incredible value that would've gone to the union membership," Stern said. "... We were very close, and they decided to blow it up."

Stern made no pronouncements about further cancellation of games, but added, "The calendar takes care of that." Although the disclaimer action initiated by union executive director Billy Hunter is more expeditious than a decertification vote initiated by the players, the legal fight that will ensue certainly imperils the 2011-12 season.

"Obviously, Mr. Kessler got his way," Stern said, "and we're about to go into the nuclear winter of the NBA."

During a meeting attended by the players' executive committee, player reps from all 30 teams and about 20 more players -- including superstar Kobe Bryant, Tyson Chandler, Carlos Boozer, Rajon Rondo and Elton Brand -- union officials presented and explained details of the league's most recent offer. It had been characterized as the final revised proposal the league intended to offer, and if the players didn't accept it, Stern's negotiating position would revert to a harsher offer -- including player salaries being derived from a 47 percent share of revenues, a hard team salary cap and rollbacks of existing contracts.

The deal on the table for the players Monday included a 50-50 split of revenues -- a 12 percent reduction from their previous share of 57 percent -- and a long list of system and spending restrictions. Hunter said the meeting gained momentum and changed in tone once players raised the option of decertification. They ultimately chose the more expeditious option of a disclaimer, with Hunter saying a summary judgment in the antitrust case could possibly be reached in 60 days -- about the length of time it would've taken the National Labor Relations Board to authorize an election through a player-initiated decertification. 

About 200 players already had signed decertification petitions, displeased with the league's negotiating tactics and the concessions made by the union. Among these were 15 players in the meeting Monday, Hunter said.

The former union executive director said he has no intentions of withdrawing the NBPA's unfair-labor practices charge with the NLRB, although it is not clear how the agency will view it now that the union has been dissolved.

While the route the union chose is quicker than decertification, it is no silver bullet for the NBA players to win what are known as "treble damages" -- three times lost earnings resulting from the lockout -- or to eventually get a better deal. For starters, there will be a significant legal fight over where the union is allowed to file its antitrust case. Presumably, the players would prefer to file it in an employee-friendly district in California, under the auspices of the 9th U.S. Circuit Court of Appeals. For this reason, the NBA in August filed a pre-emptive lawsuit in the Southern District of New York, which falls in the employer-friendly 2nd Circuit. 

Once that is resolved, the league will argue that the players' disclaimer is a "sham" -- in other words, a tactic designed to gain negotiating leverage rather than a serious union dissolution. The NFL Players Association tried the same tactic, and started much earlier in the process -- principally because it had no other choice due to a litigated deadline to decertify or disclaim or lose the option going forward.

The NFLPA never got an ultimate ruling on whether the lockout or disclaimer were legal, but instead got a narrow ruling from the 8th U.S. Circuit Court of Appeals that the federal district court did not have the authority to lift the lockout.

"I felt the combination of Boies and Kessler, from my perspective, would be an unbeatable team," Hunter said. "... We feel extremely confident that we can prevail in this matter. That’s the opinion of both lawyers."

In a statement released by the league office after his live TV interview, Stern said, "The 2011-12 season is now in jeopardy," and immediately began laying the groundwork for what could be the mother of all antitrust lawsuits. Stern alluded to a February 2010 bargaining session in which union attorney Kessler threatened that the players would "abandon the collective bargaining process and start an antitrust lawsuit against our teams if they did not get a bargaining resolution that was acceptable to them."

"The NBA has negotiated in good faith throughout the collective bargaining process but -- because our revised bargaining proposal was not to its liking -- the union has decided to make good on Mr. Kessler's threat."
Posted on: November 14, 2011 12:11 am
 

Agent fires back at Stern over 'greed' comment

Angered by commissioner David Stern's assertion that greedy agents are imperiling the possibility of reaching a collective bargaining agreement, high-profile agent Mark Bartelstein fired back Sunday night -- telling CBSSports.com that it is the owners, not the agents, who are being greedy.

"The greed that's being exhibited in this negotiation is strictly on the part of the NBA owners and nowhere else," Bartelstein said. "When the union has shifted well in excess of $3 billion over the course of this deal from players to owners and that's not good enough for the owners, that's the definition of greed."

In a phone interview with the Association Press, Stern said this weekend that agents appeared to be engaged in an "orchestrated" campaign to conceal details of the owners' latest proposal from their clients and are choosing instead what he called a "losing strategy" of decertification.

"By some combination of mendacity and greed, the agents who are looking out for themselves rather than their clients are trying to scuttle the deal," Stern said.

(Mendacity isn't the same thing as asshattery, but it's close. Google says it is the act of being untruthful.)

Bartelstein, one of the most powerful agents in the NBA with dozens of clients, also is among a group of seven influential agents who have collected around 200 signatures on decertification cards to be submitted to the National Labor Relations Board in an effort to dissolve the union in response to what they view as a decidedly one-sided negotiation favoring the owners.

"If the players are going to make the concessions to address over $300 million a year in a shift in revenue from the players to the owners, the one thing the players should get back is flexibility, freedom, freedom of choice and a more vibrant and free-market system, because it's a zero-sum game," Bartelstein said. "Instead, they're ratcheting down the system in the name of competitive balance, and that's completely disingenuous.

"A negotiation is supposed to be about making trades," Bartelstein said. "The biggest part of any negotiation is the dollars. That's the biggest part of this negotiation. The players are giving the owners the dollars. If the owners are concerned about competitive balance, it can absolutely be handled through revenue sharing. And the myth they're putting out there that they can't share losses, there's no truth to that argument whatsoever. Revenue sharing has nothing to do with sharing profits and losses. It's about making sure low-revenue teams can have more revenue so they can be more competitive and you can have a better product. That should be done through revenue sharing, not through getting concessions from the players."

Bartelstein said he has spoken with union executive director Billy Hunter in recent days to share his thoughts about the state of the negotiations and the options at the players' disposal. Hunter convened a meeting of the players' executive committee Sunday night in advance of a meeting with player reps and potentially other players at 9 a.m. ET Monday in Manhattan. As was the case last week, the player reps will decide whether the owners' proposal should be presented to the full body for a vote, or whether it should be rejected or sent back to the league with suggested amendments and a request for further negotiation. Stern has said the league does not plan to revise the proposal again, and that it is the last one that realistically could provide the players with a 72-game season starting Dec. 15.

It also is the last one that would give the players a 50 percent hare of revenues. If the players reject the offer, Stern said the owners' negotiating position will shift to an offer in which player salaries would be derived from a 47 percent share of revenues with a hard team salary cap and rollbacks of existing contracts.

As of Sunday night, no final decision had been made on when the players would file a decertification petition with the NLRB, but there is widespread assumption in the agent community that the players will not accept the league's offer or put it to a vote. Also, there are indications that the decertification movement could push forward early this week regardless of what the player reps decide to do with the proposal.





 
Posted on: November 13, 2011 11:30 pm
 

Latest lockout mayhem: The Twitterview

Just when you thought the lockout couldn't get any weirder, behold: The Twitterview.

In a good idea gone bad, thus mimicking everything about the negotiations that will come to a head one away or another in the coming hours and perhaps days, commissioner David Stern and deputy commissioner Adam Silver fielded and answered questions about the stalemate from fans, media members and players on Twitter Sunday night.

This went well in a way that things went well for that one surviving dinosaur after the meteor shower, ensuing floods, and thousands of years of only amoebas inhabiting the Earth. If you enjoy this sort of thing, you can relive the experience here in our Eye on Basketball blog.

Stern and Silver -- primarily Silver, judging from the tone and familiar content of the answers -- did provide some useful information in response to specific questions about the league's latest proposal (the complete details of which were obtained by USA Today and are posted here). That would be the one that is on the table only until the players decide Monday whether to accept it for a vote or reject it, after which it will be replaced by a new negotiating position that includes a further reduced share of revenues for the players as well as a hard team salary cap and rollbacks of existing contracts.

In response to a couple of important questions about how the negotiations got to this point, Stern and Silver tried to explain why they would shift to a harsher proposal if the players rejected this one. "Teams suffering economic losses with no season," they replied. "No choice but to recover if season does not start soon."

Several of my followers quickly chimed in and pointed out that the league simultaneously claims to have lost enormous amounts of money by operating under the previous system, so shouldn't not operating be preferable? And also, that going from a proposal the players don't like to one they like much less could only accelerate the losses the league says it is trying to avoid.

So, yeah, this was going swell.

They dropped a couple of news Nuggets, saying in response to one question that contraction "has been discussed," but that it's "not a complete solution," and reiterating the legal position expressed in a federal lawsuit against the players that decertification of the union would result in all player contracts being voided.

They got hit with angry questions from players Spencer Hawes and Dwyane Wade, and more than a few people in my timeline came away with the impression that the league's answers were evasive and condescending.

"Does @NBA have, 'We need a system that allows all 30 teams to complete for a championship' on auto-answer?" one follower asked.

"If @NBA runs the bargaining sessions like this chat," wrote another, "I see why meetings take 15 hours."

Chris Paul at one point chimed in and chided Stern and Silver for failing to answer Hawes' question about why the lockout must continue if the players have addressed all the league's economic losses. Stern and Silver did not answer the question I sent them: "Does the union have the option of proposing amendments before indicating whether it would send it to the players for a vote? Or is this it?"

When they were finished alienating many of the league's more than 3 million followers, Stern and Silver ended the Twitterview after a final question from a media member, Sam Amick of SI.com: "Don't teams that received public funding for their arenas to be built have a responsibility to their communities to continue operations?"

"No mandate to operate unprofitably," they replied, and after 90 minutes and 29 questions, it was over.

"Thank you for participating," the NBA leadership said. "There is a fair deal on the table that will allow the season to start on December 15."

But there was one more tweet.

"We want our players and teams to do well and we hope our proposal is accepted," the NBA wrote. "Good night."

Before the ill-fated Twitterview began, I wrote this analysis of the players' various options and attempted to set the record straight about what specifically changed in this offer from the previous one. Never could I have imagined that Stern and Silver would take to Twitter in the coming hours and do this poor a job of explaining it.

About an hour after the Twitterview had mercifully ended, the NBA released a presentation on YouTube highlighting its proposal. The last time I looked at it Sunday night, it had 154 likes and 451 dislikes, but only 302 views. Which pretty much means the worst-case scenario: everyone has already made up their minds.
 
Posted on: November 11, 2011 6:17 pm
Edited on: November 11, 2011 7:14 pm
 

Player support for owners' plan dwindles

NEW YORK -- Support among players and agents for the owners' revised collective bargaining proposal appears to be lower than it was for the previous offer, and approximately half the union membership is expected to sign decertification petitions in a show of defiance, multiple people involved in the process told CBSSports.com Friday.

"This isn't going to fly," said one formerly moderate agent now on board with the movement to decertify and vote down the owners' latest ultimatum proposal -- if it goes up for a vote at all.

At least 15-20 agents representing an array of agencies held a conference call Friday to plot their next strategy as players and their representatives angered by the proposal prepared to submit the decertification cards to the National Labor Relations Board seeking an election to dissolve the union.

The NLRB almost certainly wouldn't authorize an election unless the National Basketball Players Association withdrew its unfair labor practices charge against the NBA -- something union officials are not believed to be considering, as an NLRB complaint remains the most ironclad chance for a federal injunction lifting the lockout, legal sources said.

Even if the NLRB charge were dropped, an election would still take 45-60 days to schedule. In the meantime, negotiations between the league and union leadership could continue. The pressure perhaps would be shifted to the owners to modify their proposals if they are serious about having the 72-game season that Stern promised Thursday night, complete with Christmas Day games and a regularly scheduled All-Star weekend, if the players approved the existing offer.

In addition to the seven major agencies that have been clamoring for decertification for months, several other previously moderate agencies have joined the movement, sources told CBSSports.com.

"They've lost me," said one of the previously moderate agents. "Three months ago, we thought this would be done. We thought people would be reasonable."

The owners' lack of significant movement on key system issues in their revised proposal, plus new, still-to-be-negotiated requests viewed by the players and agents as draconian, make the chances of players voting for the proposal -- or player reps even recommending it for a vote -- extremely unlikely, sources said.

The new proposal, one of the agents said, is "probably as bad, if not worse than the last proposal."

Union executives are bringing the 30 team player reps to New York Monday or Tuesday to evaluate the latest proposal from the league, delivered Thursday night once again with the threat that if the players rejected it, they would be faced with a worse offer. Commissioner David Stern said the latest proposal, which contains a 50-50 split of revenues, would be replaced by the so-called "reset" proposal in which players would receive 47 percent of revenues and be constrained by a flex cap with a hard team payroll ceiling and a rollback of existing contracts.

In the revised proposal, the owners made the following moves toward the players' position:

* Increase the mid-level exception for luxury tax-paying teams to three-year deals starting at $3 million, available every year. The previous proposal called for mid-level deals for tax teams to be for two years starting at $2.5 million and available every other year.

* Allow tax-payers to execute sign-and-trade transactions for the first two years of the agreement. Such trades would be banned for tax teams after that. They were completely banned for tax-payers in the prior proposal.

* Create a new, $2.5 million exception that can be used by teams that are under the cap. It would allow teams that previously only had cap space to sign a minimum salary player to offer more.

* Increase the team payroll floor (i.e. minimum team salary) to 90 percent of the cap in the third year of the deal and 85 percent in the first two years. It was 85 percent across the entire agreement in the previous proposal, and 75 percent in the prior CBA.

* Increase annual raises for Bird free agents to 6.5 percent, up from 5.5 percent in the prior proposal. Non-Bird players' annual raises remain capped at 3.5 percent, as in the previous proposal. In the prior CBA, Bird raises were capped at 10.5 percent and non-Bird at 8 percent.

* Increase qualifying offers to restricted free agents.

* Allow player options in contracts for players making less than the average league salary. In the previous proposal, player options were banned. There were no restrictions on player options in the previous CBA.

* Accept the union's proposal that each side be able to opt out of the 10-year CBA after the sixth year. 

But union officials and agents were disappointed that the league did not address the so-called tax cliff, by which teams are double-penalized for barely wading above the tax line, and they disagree with the league's position that mid-level restrictions would be in place if the signing pushed the team's payroll above the tax. The players want teams to be able to use the exception as long as they are under the tax line before the signing occurs.

"We'll try in court, because it can't get worse than this," one of the formerly moderate agents said. "... The owners are selling players short on their intelligence, and they're definitely selling their representatives short."

The introduction of a series of B-list issues -- drug testing in the offseason, an age-limit of 20, and a provision that would allow teams to send players to the D-League during the first five years of their careers and make substantially less than the NBA minimum -- formed a rallying point for players and agents who formerly were open to considering the league's proposal to become unified against it. League officials said Friday that these B-list issues are not in the owners' written proposal, and that both sides agreed to "park" them to be discussed after there is agreement on the framework of the major issues.




Posted on: November 11, 2011 1:20 am
Edited on: November 11, 2011 2:25 am
 

Stern offers 72-game season, few alternatives

NEW YORK -- The NBA made its last offer that will contain a 50 percent revenue share for the players Thursday night, and commissioner David Stern shifted the pressure to the union by tantalizingly attaching the possibility of a 72-game season starting Dec. 15.

"There comes a time when you have to be through negotiating, and we are," Stern said.

The players, expressing disappointment that the league did not respond with more system compromises after they'd signaled their willingness to accept a 50-50 revenue split, will bring the proposal to their player reps Monday or Tuesday to see if they will recommend the proposal to the union membership for a vote.

"The idea ... is to sit down with them and say, ‘You sent us out to get something, here’s what we’re coming back with,'" said Billy Hunter, executive director of the National Basketball Players Association. "'Now let’s sit down and decide what our next option is, what are we going to do.'"

The players' options are few, and none of them particularly appealing. They can put the deal to a vote, and if passed, they would be locked into a proposal that is an unmitigated victory for the owners -- one that shifts $3 billion over 10 years from the players to the owners and also dramatically restricts the rules governing team payrolls, player contracts and player movement. If the player reps tell the union leadership they want to reject the proposal, then Stern said the league's negotiating position will revert to a 47 percent share of revenues for the players along with a hard team salary cap and rollbacks of existing contracts -- the so-called "reset" proposal whose introduction at 5 p.m. Wednesday was delayed while the two parties bargained for 23 hours over the past two days.

"We have made our revised proposal," Stern said, "and we're not planning to make another one."  

Another outcome likely will begin to unfold Friday before the union even decides whether to accept the proposal -- and would continue to progress regardless of the outcome of next week's player rep meeting: Agents dissatisfied with the deal the union has negotiated and the intransigence of league negotiators already have more than 200 signatures on decertification petitions which are ready to be submitted to the National Labor Relations Board requesting a vote to dissolve the union, according to a person familiar with the plans.

Such a move would threaten to torpedo whatever support there is among the union membership to approve the owners' offer, and if it resulted in the players deciding not to vote on the proposal or voting it down, could throw the 2 1-2 year negotiations into the chaos of an anti-trust lawsuit -- virtually guaranteeing that the 2011-12 season would be lost.

If the player reps recommend that the rank-and-file vote on the owners' offer, that process could be accomplished within a matter of days -- as could approval by the owners' Board of Governors. A decertification vote would not be scheduled by the NLRB for about 45-60 days -- if the agency authorizes the vote at all. Typically, it does not do so when there is a pending unfair labor practices charge filed by employees.

Ultimately, the purpose of a decertification effort is securing an injunction or temporary restraining order from a federal judge as the result of an anti-trust lawsuit, which also would subject the league to the possibility of treble damages -- triple the players' economic losses resulting from the lockout. A faster route to the same outcome would be if union leaders stepped down via a disclaimer of interest, but that method faces a more difficult legal test in court.

If the owners' proposal passed, a new 72-game schedule would be drawn up -- deputy commissioner Adam Silver said those logistics already have been handled -- and a breakneck, one- or two-week free agency period would ensue along with shortened training camps and a limited preseason schedule. The marquee Christmas Day games would be preserved, and All-Star weekend would occur as scheduled Feb. 24-26 in Orlando.

"I'm hoping personally that's where we are now and we can get back to playing," Silver said. "But I understand from the union's standpoint it's a difficult pill to swallow right now. But that, once again, over time, we'll be proven right and this will be a better league for the players, the teams and the fans."

Union president Derek Fisher, sitting next to Hunter with several forlorn committee members standing behind him, seemed to hold out hope for a replay of what transpired over the past few days -- when the players successfully stopped the clock on Stern's Wednesday ultimatum to accept his previous proposal. After meeting with the reps, Fisher said the plan would be "either continue to negotiate currently from where we are or realize that maybe the NBA, this is their last, best offer and we’ll have to make decisions accordingly at that point."

Stern, who spoke with reporters after Fisher and Hunter, made it clear that the only choice was the one behind curtain No. 2.

"The negotiations are over," Stern said. "The negotiations on this proposal are over." 

Like most moves the league has made in the negotiations, which hit Day No. 133 Thursday since the lockout was imposed July 1, the characterization of this proposal as "revised" was a stretch, according to multiple people familiar with it. Among the tweaks to the unresolved system issues entering the past two days of talks, the owners agreed to increase the mid-level exception for luxury tax-paying teams to three-year deals starting at $3 million. The exception, which was for two years starting at $2.5 million under the previous proposal, would be available every other year for teams above the tax threshold.

Though full details of the owners' revisions weren't crystallized Thursday night, it is believed that they agreed to make sign-and-trade transactions available to tax-paying teams with certain restrictions and make other minor revisions to issues the players indicated they needed changed in return for their economic concession from 51 percent of BRI to 50: the luxury tax "cliff" that affects teams that wade into the tax and the repeater tax for teams that stay above the tax threshold for a third time in five years.

Given that teams have only remained over the tax that long seven times since the luxury tax was introduced in 2005, according to NBA TV, the issue wasn't one of substantial concern Thursday, according to sources in the negotiating room.

However, some new issues came to the forefront that concerned the players' negotiators when it became clear that the league's proposal would restrict teams from using a full mid-level exception -- four-year deals starting at $5 million -- if the signing itself pushed the team over the tax. Union negotiators want the mid-level restriction to kick in only if the team already is above the tax line before it uses the exception. The league's version is the one that is in the current proposal, according to a person who has seen it.

Nonetheless, Stern characterized the league's movement -- with the backing of labor relations committee chairman Peter Holt and the full committee, which was consulted via phone Thursday night -- as "several well-intentioned efforts to move to them on a variety of concerns."

But it is clear that chaos would ensue, not to mention catastrophic economic damage to both owners and players, if the proposal is rejected. As a result, Stern and Silver will have to consider whether their owners pushed too hard and tried to extract too thorough a victory -- one that would quickly be transformed into a loss for all sides if the deal is not one that can be sold to the players and agents who already are prepared to blow up the union.

"We moved as far as we could move," Stern said.

Despite the losses incurred by the players, not the least of which is an average $300 million-a-year giveback that absolves all the losses the league said it was suffering, the union did preserve several system provisions that would evaporate if the league reverted to its 47 percent proposal next week. Among the most important items, the union fought off the league's attempt to impose a hard team salary cap and maintained the structure of max contracts. And although the players would give back $3 billion over 10 years, with a conservative estimate of 4.5 percent annual revenue growth, player salaries would grow to nearly $3 billion by the 10th year of the deal.

And while salaries and benefits would stay flat at approximately $2.17 billion for the first two years of the deal, that provision would allow the league to keep the salary cap ($58 million) and luxury-tax level ($70 million) unchanged until adjustments for the new system would take hold in the third year.

"It’s not the greatest proposal in the world ... but I have an obligation to at least present it to our membership," Hunter said. "And so that’s what we’re going to do. We’ve got members of our executive board standing behind us, and they all agreed that we needed to sit down and discuss it with all of the reps and collectively decide what it is we should do."

Even if the players agree to the framework of the deal, Hunter said there are at least 30-40 so-called B-list issues that need to be resolved -- among them, the age limit, drug testing, player disciplinary measures and work rules such as practice schedules and days off. In addition, some players and agents will resist the notion of player salaries this season being prorated to 72/82nds based on a reduced schedule that resulted from the owners imposing a lockout -- especially since the big revenue generators like Christmas Day games, All-Star weekend and playoffs will be preserved.


 
Posted on: November 10, 2011 8:37 pm
Edited on: November 11, 2011 2:40 am
 

Progress on mid-level, but other hurdles emerge

NEW YORK -- Negotiators for the league and players' association made modest progress on the use of the mid-level exception for luxury tax-paying teams Thursday, but other guidelines governing exceptions and the tax level emerged as a new sticking point, three people briefed on the labor talks told CBSSports.com.

One of the people said league negotiators signaled a willingness to raise the so-called "mini mid-level" to three years starting at $3 million for teams above the luxury-tax level, to be available every other year. The previous offer was a two-year deal starting at $2.5 million, available every other year to tax teams. There was no indication union negotiators were ready to agree to this slight improvement in the owners' proposal, as it would reduce the mid-level exception for tax teams from last year's five-year, $37 million total to three years and $9 million for teams above the tax line.

UPDATE: After conferring with owners on the labor relations committee, commissioner David Stern was prepared to deliver a revised proposal to the union Thursday night based on the deal points negotiated over the past two days, a person with knowledge of the plans confirmed to CBSSports.com. The revised proposal, first reported by Yahoo Sports, was not the so-called "reset" proposal threatened if talks broke down, the person said.

Also Thursday, a new hurdle emerged in the discussion over when teams would face the new restrictions owners are proposing for teams above the luxury tax threshold. Two of the people briefed on the talks said owners were pushing for teams under the tax at the time of the transaction to be restricted from using the full mid-level -- four-year deals starting at $5 million -- if the signing put the team over the tax. In that case, the team would be restricted to use of the mini mid-level. Union negotiators want the new restrictions to be based on where a team's payroll sits in relation to the tax prior to the use of the exception -- not where it stands afterward.

After a 12-hour session Wednesday produced minimal progress, the two sides pushed past the eight-hour mark Thursday with the threat looming that league negotiators would pull their existing offer off the table and replace it with a worse one. The new offer, originally scheduled to be furnished to the players at 5 p.m. Wednesday but delayed due to the ongoing talks, would have featured a 53-47 economic split in favor of the owners and also would include a hard team salary cap and rollbacks of existing contracts. The two sides currently are negotiating off a league proposal that would give the players a 50 percent share of revenue and maintain a soft-cap system -- albeit with a vastly more onerous luxury tax system, more restrictions on exceptions, shorter contracts and smaller annual raises.

On Tuesday, union officials held a meeting with more than 40 players, including 29 team player reps, and signaled a willingness to meet the NBA on its 50-50 economic split provided that a list of five or six system-related issues could be resolved to the players' satisfaction. One of the roadblocks in the talks, according to multiple people involved in the process, is that players who previously did not realize how severe the owners' proposal was had become emboldened to push for significant concessions on the remaining system points. Even if and when a deal is reached, agents who have long opposed the concessions delivered to the league by union negotiators will be advising their clients to review the proposal closely and vote against it if it isn't substantially different than what the players learned about Tuesday.

"The players aren't going to be hoodwinked on this one," one such agent told CBSSports.com.






 
 
 
 
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