Tag:Derek Fisher
Posted on: November 25, 2011 11:51 am
Edited on: November 25, 2011 7:11 pm
 

Looking for a deal on Black Friday

NEW YORK -- Negotiators for the NBA owners and players were meeting Black Friday for litigation settlement talks in the hopes of laying the groundwork for a collective bargaining agreement to save the 2011-12 season.

The starting point in the negotiations essentially is where the bargaining talks left off Nov. 10, when the players were left with an ultimatum from the league to accept the framework of a 50-50 revenue split or face a far worse offer. Instead of sending the proposal to the union membership for a vote, the National Basketball Players Association dissolved Nov. 14 and launched multiple antitrust lawsuits against the league's owners.

UPDATE: With those dynamics in mind, the talks take the form of a legal settlement as opposed to a collective bargaining resolution -- with many of the same participants still involved but some new faces, too. The players' lead attorney in the antitrust action, David Boies, has teamed with former NBPA lead outside counsel Jim Quinn in an effort to push the deal across the finish line. But neither Boies nor Quinn was present at Friday's negotiations. Kessler, stripped of his role as lead negotiator for the players, also was not present.

Representing the players Friday were former union officials Billy Hunter and Derek Fisher; executive committee member Maurice Evans; general counsel Ron Klempner; economist Kevin Murphy; and one of Quinn's law partners. For the league, it was commissioner David Stern; deputy commissioner Adam Silver; Spurs owner Peter Holt, the chairman of the labor relations committee; general counsel Rick Buchanan; and deputy general counsel Dan Rube.

So the so-called litigation settlement talks had very much the same dynamics as the bargaining talks that broke off Nov. 10, leading to the players' decision to dissolve the union and launch antitrust lawsuits against the owners on Nov. 14. This, with one exception: there were strong indications that Quinn, one of the key figures in ending he 1998-99 lockout, had laid important groundwork during secret discussions he brokered earlier in the week. Stern and other league officials were seen Tuesday at the same location where Friday's talks were taking place. 

Multiple people connected to the talks have told CBSSports.com that the discussions could move quickly towards a deal after the momentum gained in the past week from back-channel talks spearheaded by Quinn. But one person in frequent contact with ownership cautioned that it may take the entire weekend to find common ground, adding that there "could be some anxiety" in the room Friday.

On the 148th day of the lockout, but the first since the labor impasse was transformed into a court battle, there seemed to be little effort to hide the appearance that the faces and issues hadn't changed. A key difference was the absence of Kessler, though the tempestuous attorney was still "very much involved" behind the scenes, according to a source.

The players are hopeful that the owners will be willing to offer substantial movement on a handful of system-related issues around which the talks crumbled two weeks ago, resulting in the unprecedented disclaimer of the NBPA and threatening that the season would be swallowed up by lengthy, costly and unpredictable antitrust litigation. To account for some of those concessions, which would result in a more flexible and opportunistic free-agent market than the owners last proposed, it is possible that the split of revenues could inch upward above 50 percent for the players -- with the remaining difference accounted for by an escrow system capped at 10 percent as teams and players adjust to a reset of player salaries and more restrictive system than the one that existed under the CBA that expired July 1.

The most difficult issues to resolve will be the availability of the mid-level exception for luxury tax-paying teams; sign-and-trade transactions for tax payers; and the definition of a tax payer. Coming out of the collapsed bargaining talks, these were the items that bothered the players the most in terms of restricting player movement -- especially the notion that a team would be considered a tax payer prior to use of an exception that pushed it over the tax line, as opposed to afterward.

But while league negotiators were not expected to fully move toward the players on all the outstanding system issues, there has been "positive movement" from the owners in recent days "to get a deal done," according to the person in contact with ownership. The biggest factor in the potential for a deal by the end of the weekend is not the players' lawsuits, but something much more predictable and relentless: the calendar.

Both sides understand that a season tipoff on Christmas, which would deliver a 66-game regular season with the NBA Finals pushed back only one week, would require an agreement by Monday at the latest. Even that would be pushing it; the league will need about 30 days to finalize the deal and hold an abbreviated free-agent period, training camps and preseason games.

As necessitated by the union's disclaimer, any legal settlement wouldn't be able to take the form of a CBA until the union reformed and was recognized by the owners.
Posted on: November 23, 2011 3:04 pm
Edited on: November 23, 2011 6:52 pm
 

Talks resume; is there time?

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 CBSSports.com 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. 

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 3:19 pm
Edited on: November 10, 2011 4:05 pm
 

Bill Russell: Hard-liners jeopardizing NBA

NEW YORK – Hall of Famer Bill Russell said a solution to the NBA lockout is being jeopardized by hard-liners on both sides, and urged the parties to put aside their differences and reach a compromise “they can live with.”

“As a very interested bystander, I just hope they get a deal,” Russell told CBSSports.com in a phone interview. “And it will not come from the hard-liners on either side. I think they all know that. I have this theory that hard-liners are like true believers. And true believers think that any compromise is a retreat. And moving forward, that doesn’t cut it.”

Russell’s words carry weight – and not just because he is the most decorated champion in NBA history. The former Celtics’ star was among a group of 20 All-Stars who threatened to boycott the 1964 All-Star Game in Boston unless the NBA recognized the newly formed players’ union.

“Basically I was one of those guys that helped get the players’ association started,” Russell said. “And they've done wonderful things. I knew David Stern before he was commissioner, when he was associate attorney for the NBA. And if I remember correctly, he said, ‘I do not consider the players' association my adversaries. They're my business partners.’

“That's where, a lot of the things that David has done -- and I’ve known him up close -- have been beneficial for both sides,” Russell said.

Russell, 77, winner of 11 NBA titles, wanted to speak with CBSSports.com after he learned of union attorney Jeffrey Kessler’s comments in which he referred to NBA players being treated like “plantation workers.” Kessler, who made the comments to the Washington Post Monday night, apologized to several outlets Wednesday.

“I think that's an invalid accusation,” Russell said. “I think the whole deal is not about black and white. It's about money, OK? I don’t see any signs of being greedy. It's a typical negotiation and that's all it is. And there are a couple of reasons it's difficult, because there's hard-liners on both sides.

“But to me, the name-calling or vilifying the other side is a non-issue,” Russell said. “All that is is a distraction -- a distraction from the task at hand, which is reaching an agreement that neither side will probably be completely happy with. But that's the art of compromise.”

Russell said both sides “have their points,” but he views the key stumbling blocks as owners as trying to “protect themselves from the owners” and a battle between “the small-market teams and the big-market teams.”

“The players want their fair share of the business and the small-market owners don't want to keep losing money,” Russell said.

Russell said he hasn’t kept up with the details of the negotiation, but cautioned both sides that there’s “more to the agreement than just money.”

“I told Billy Hunter a few years ago: Bargain as hard as you can and make a deal,’” Russell said. “I really like and respect David Stern, and I really like and respect Billy Hunter and Derek Fisher. My whole life I've had a love affair with the NBA, and we've had some tough negotiations over the years. But I don’t think we ever vilified the other side. We just had tough negotiations.”

I thanked Russell for his input, wished him well, and told him I hoped to see him soon – at a basketball game.

“I'd like to see a basketball game right now,” he said.
Posted on: November 10, 2011 2:19 am
Edited on: November 10, 2011 2:35 am
 

'Not failing, not succeeding' ... and not dealing

NEW YORK -- The clock is stopped. Has the progress stopped, too?

After a 12-hour bargaining session that blew past an artificial deadline imposed by the league to reach a deal or pull its 50-50 proposal off the table, negotiators for the NBA and its players' association will convene again Thursday with what commissioner David Stern described as a "copious" list of issues to resolve.

"There are many other issues, many other issues of importance," Stern said early Thursday, referring to issues in addition to the handful of unresolved system points on which the two sides failed to make significant progress -- even after the players had signaled a willingness to meet the league on the economics of a 50-50 split of revenues.

"It just behooves us to make sure that all of those issues are put on the table, together with all of the system issues, together with the economic split, and see whether there can emerge from that rather lengthy list the ability to make a deal," Stern said. "Right now ... we're not failing and we're not succeeding."

Though union officials disputed the media's characterization of their economic stance, it was clear after Tuesday's players' meeting that the players were open to coming down from their previous offer in which they'd proposed receiving a 51 percent share of basketball-related income (BRI). Union president Derek Fisher had made clear that, in return for that willingness to negotiate further on the economics, it was expected that the league relax its position on several system-related deal points -- chiefly dealing with additional penalties for repeat offenders above the luxury tax, a prohibition of sign-and-trade transactions for tax teams, and the size, length and frequency of mid-level signings for tax teams.

But despite another dose of optimism in the agent and front-office community that the two sides were moving closer to a deal Wednesday, Fisher said there was "not as much (flexibiity) as we'd like" from league negotiators on the system issues.

"Obviously, we'd have a deal done if the right flexibiity was being shown," Fisher said. The bargaining session was arranged by Hunter and Stern after the players stared down the league's threat to replace its 50-50 offer with a 53-47 split in favor of the owners by 5 p.m. Wednesday. The so-called "reset" proposal also would revert to a hard salary cap and a rollback of existing contracts -- both elements of previous league proposals that had been negotiated away -- along with a litany of other draconian measures.

Stern said the league did not revert to that proposal Wednesday, but that it would happen whenever the current negotiating session came to an end if there was no deal.

"We weren't, in the middle of discussions, going to say, 'OK, we shouldn't have taken that break. Stop the clock, it's all over,'" Stern said. "We're trying to demonstrate our good faith and I think that the union is trying to demonstrate its good faith."

But the league's position Wednesday on the system elements the players have said they need in order to justify a 50-50 economic split -- which would shift $3 billion to the owners over 10 years and account for all $300 million in the league's stated annual losses -- was not one that siginified a give-and-take approach.

"They don't want to give," a person briefed on the talks said. "They just want to take."

The key point entering this latest round of talks -- perhaps the last round before either a deal is struck or the process is launched into the chaos of union decertification and anti-trust action -- was whether league negotiatiors would concede enough on the remaining system elements to create a deal that the union leadership can feel comfortabe presenting to its approximately 450 players for a vote.

But a comment from deputy commissioner Adam Silver painted a sobering portrait of defiance.

"The competitive issues are independent of the economic issues," Silver said. "Our goal is to have a system in which all 30 teams are competing for championships and, if well managed, they have an opportunity to break even or make a profit. We don't see the ability to break even or make a profit as a tradeoff for the ability to field a competitive team. All of those issues are still in place."
Posted on: November 9, 2011 11:53 am
Edited on: November 9, 2011 12:57 pm
 

Kessler apologizes, but still needs to go

NEW YORK -- In a lockout during which most days have been hideous for the players, this one had gone surprisingly well.

They'd presented a united front, made clear to David Stern's owners that they can have their 50 percent already and expertly shifted the pressure of this $4 billion fiasco back to their opposition.

By accepting the economic terms of the owners' offer Tuesday, the players were saying this to the world: If there's no deal Wednesday, Thursday or soon, it won't be because we weren't willing to compromise. It'll be because $3.3 billion over 10 years isn't enough for the owners. It'll be because the NBA wants to hold things up over some obscure system mechanisms that most fans can't relate to -- and for which clear compromises are available.

But here's the thing: Even on what had been a brilliant day for the players, it wasn't such a brilliant day -- for the same reason their days have grown increasingly miserable during this lockout. A great day, one that could go down as ultimately triggering the end of the lockout, was overshadowed by more unfortunate, divisive venom from the union's outside counsel and lead negotiator, Jeffrey Kessler.

Kessler, whose exploding-head theatrics and over-the-top rhetoric had twice contributed to significant blow-ups of the talks recently, told the Washington Post in an interview that occurred before the players' meeting and news conference Tuesday that the NBA was treating players like "plantation workers." No, really, he did.

“To present that in the context of ‘take it or leave it,’ in our view, that is not good faith,” Kessler told the Post in a telephone interview Monday night. “Instead of treating the players like partners, they’re treating them like plantation workers.”

Not only did this verbal assault lack cleverness -- it's a variation on the term commentator Bryant Gumbel had used to defame Stern recently, drawing universal scorn and ridicule -- but it was also offensive. It was not only offensive to Stern, but also to Kessler's clients, 80 percent of whom are black.

Once again, Kessler had poured the kind of needless gasoline on the lockout's smoldering fire, just as he's been doing for weeks.

“Kessler’s agenda is always to inflame and not to make a deal,” Stern said in a response to the Post. “Even if it means injecting race and thereby insulting his own clients. . . . He has been the single most divisive force in our negotiations and it doesn’t surprise me he would rant and not talk about specifics. Kessler’s conduct is routinely despicable.”

So you know what? At this important hour in the talks, a moment when the two sides are coming together at 1 p.m. in Manhattan to try to save the season, let's do something far more productive than Kessler shooting off his mouth and dragging this out for more lawsuits and billable hours.

Let's tell him to button up, get out of the negotiating room and hit the road.

Kessler, the union's lead negotiator and the lockout's chief destabilizer, need not show up at that meeting Wednesday. He needs to be fired.

“I’m sorry you feel that way,” Kessler told me on the phone Wednesday, even as the league and union were arranging the bargaining session. “But anybody who actually knows what my role has been in these and other negotiations, it has been to work and strive towards a deal. That’s what I’ve always done and that’s what I’ll continue to do.”

But all the evidence is to the contrary, and Kessler’s apologies Wednesday – released individually to various news outlets as opposed to en masse from the NBPA – didn’t change that.

“The comments that I made to the Washington Post took place late Monday night after a very long day,” Kessler said. “I look back on those comments as reported and I realize my choice of words was inappropriate. I am sorry about that. I intend to call commissioner Stern and apologize for my inappropriate choice of words.

“I made these comments as a passionate advocate for the players, but I can understand that they can be misinterpreted and viewed as being offensive,” Kessler said. “At this point, we need to put any distractions aside and work to try to get a deal to save the NBA season.”

Perfect advice, to put distractions aside – starting with Kessler. The NBPA should take Kessler’s advice and put him aside

“I did not intend to make any statement that would be interpreted as suggesting any type of racial issue,” Kessler said. “I don’t even remember if the comments were on the record or off the record, but in any event, my use of those words in that context was inappropriate.”

So Kessler had his say, and now I have mine: Go offend somebody else. Go bill somebody else. The players have paid you enough, and have paid enough for your inflammatory tactics that benefit only you.

When union executive director Billy Hunter sees Stern Wednesday, he should open the conversation with an apology on Kessler's behalf. Then, he should deliver news that will be music to the commissioner's ears: "We are no longer retaining Mr. Kessler's services."

Watch Stern skip from Olympic Tower to the East Side hotel where they’re bargaining. Watch how fast a deal gets done.

Let me be clear: Kessler shouldn't be fired only for bringing a plantation reference into the labor talks, or for having the poor taste to allude in any way to professional athletes being comparable to slaves. This was merely the last straw, the final indignity for players who are being led down a divisive, destructive path that has benefited Kessler and his law firm, Dewey & LeBoeuf, more than anybody.

Kessler is the same attorney, and Dewey & LeBoeuf the same firm, that represented the NFL players during their recent lockout. The NFLPA let Kessler play bad cop for a while, but union chief DeMaurice Smith recognized that he was too emotional and needed to take a back seat when it came time for a deal to get done.

Finally, it is that time in the NBA talks. Time for Kessler to step aside.

Having closed what was once a $10 billion economic gap with the owners over 10 years, the players don't need any more rhetoric. And they don't need Kessler's divisive tactics, offensive speech, and quite simply, annoying presence in the bargaining room. The deal is 99 percent done, the players won't be needing Kessler's services for a decertification lawsuit, and he should simply go away before he blows things up again.

After the two most recent implosions of the talks, Kessler stepped to the microphone and fanned the flames. After a meeting that broke down over system issues, Kessler said the talks had been "hijacked," and spun a fantastic fairy tale about how Trail Blazers owner Paul Allen had torpedoed the negotiations -- even though all he did was sit in the room and, unlike Kessler, not say a word.

Then on Sunday morning, at a time that called for decorum and a delicate touch to cleverly turn Stern's ultimatum right back on him, Kessler went bazookas again. He called the owners' tactics "threats" and "intimidation," and characterized Stern's portrayal of the league's proposal "a fraud."

Even some hard-line members of the union leadership have grown uncomfortable with Kessler’s flame-throwing approach.

If Kessler missteps this frequently and spectacularly during his brief encounters with reporters, just imagine how bad it gets when he's in a room yelling at Stern and his billionaire owners – and vice versa -- for 16 hours at a time.

The job of a lawyer is to advocate aggressively for his clients. But while I've accused Stern of speaking with a forked tongue, and accused the league's lead negotiator, Adam Silver, of double talk -- and while I fundamentally believe that the owners are pushing for way too much here -- Stern and Silver have at least conducted themselves professionally in public. Kessler? He's been professional, all right. A professional wrecking ball.

Kessler is right: The players can't afford any more distractions that could imperil this deal. Unfortunately, I'm not optimistic that the union will take my advice and kick Kessler to the curb, the way he was kicked to the curb late in the NFL negotiations. The union, to its discredit, decided not to issue its own apology for Kessler's offensive comments. When I asked Kessler if he had any intentions of stepping aside, he said, “Absolutely not. If you knew the real dynamics in the negotiating room, you wouldn’t say that.”

But that doesn't change the fact that it's time for Dr. Doom to go.

There are level-headed, respectable professionals on the union’s negotiating team, and they will take it from here. Hunter, Derek Fisher and general counsel Ron Klempner are more than capable of closing the deal. Klempner is the one writing the union's proposals, anyway, has the best grasp of the subject matter, and has consistently displayed the kind of reason and spirit of compromise that is conducive to getting a deal done.

Kessler? You can go find some more people to offend, more athletes to prey on, and more hours to bill. Your services, and your inflammatory tactics, are no longer needed here.

To borrow the signature phrase of the lockout, how u? Or better yet, how u sleep at night?
Posted on: November 8, 2011 6:54 pm
Edited on: November 9, 2011 12:54 am
 

Players call Stern's bluff

NEW YORK -- Calling David Stern's bluff with the backing of 29 player reps, the National Basketball Players Association rejected the NBA's latest offer Tuesday and requested an additional negotiating session before the league's self-imposed 5 p.m. Wednesday deadline to accept their proposal or subject themselves to a far worse deal.

"Our orders are clear right now," union president Derek Fisher said, flanked by more than 40 players. "The current offer that is on the table from the NBA is not one we are able to accept."

Billy Hunter, the union's executive director, said he planned to call Stern and request further bargaining in the hopes of closing the gap on a list of at least five system-related issues that are standing in the way of a deal. Stern, speaking on NBA TV Tuesday night, said he "always" takes Hunter's calls.

But there is little if any reason to expect Stern not to follow through on his threat to retract the owners' latest proposal offering the players a 50 percent share of revenues and replace it with a far more punitive one -- including a 53-47 share in favor of the owners, a hard team salary cap, rollbacks of existing contracts, and backtracking on a litany of other system issues the two sides previously had agreed upon.

"We'll just wait and see what it is the league does," Hunter said. "I would assume that if we end up being able to reach a deal -- whether it's reached tomorrow or reached four days from now -- even if they were able to impose this artificial threat of rolling back to 47, I'm convinced that they would more than likely, gladly come back and do the 50-50 deal if that's a possibility."

Hunter and Fisher said little time was spent discussing the issue of decertification, a nuclear tactic that hard-line players and agents have been pushing for the past few weeks. Hunter said the measure, which would effectively dissolve the union in an attempt to pressure the league with the threat of anti-trust damages, was "not a worthwhile endeavor."

Hunter also said he was hearing that, in addition to reverting to a more owner-favorable proposal by Wednesday, Stern also was planning to cancel games through Christmas if a deal isn't reached by 5 p.m. Such cancellation threats are largely immaterial, but there is no question the talks have arrived at a junction that will test the resolve of hard-line owners and invite the potential for chaos if dissident agents and players formalize their push to decertify by getting 30 percent of players to sign a petition to be filed with the National Labor Relations Board.

"It's either going to be a collision of the radicals or a collision of the rationals," a member of the players' executive committee told CBSSports.com.

In addition to Fisher and the rest of the players' executive committee, the meeting was attended by reps for 29 teams, with the biggest star presence being Carmelo Anthony -- whose extend-and-trade arrangement that brought him from Denver to the Knicks last season the owners are seeking to ban in the next CBA.

But neither Melo nor committee member Chris Paul was the biggest star in the building. That was former President Bill Clinton, whose talents for diplomacy are sorely needed.

"I hope it gets worked out because we all want to see basketball," said Clinton, who didn't participate in the meeting but hugged Fisher afterward while handing out to players copies of his new book -- ironically titled, "Back to Work."

The call from Hunter to Stern to reignite the talks and close the gap on essentially a list of five system concerns that the players have was predicated on Hunter and Fisher saying Tuesday that the players are willing to meet the NBA on the economics of a 50-50 split. When talks broke up early Sunday, the players were asking for a 51 percent share of BRI -- with 1 percent going to a benefits fund for players when they retire.

A person directly involved in the negotiations said the union was prepared to go to 50 percent while seeking a creative way to fund a benefits plan for retirees that doesn't come out of the BRI pie.

"I'm the one who's going to call him," Hunter said. "I'll probably call him tonight to see if we can get together some time tomorrow. ... If he says no, I'll just have to deal with that. I'll be denied the opportunity to talk to David."

Hunter said that with a smile and a joking tone, obviously recognizing that this isn't his first rodeo with Stern. He is making a much more serious bet that Stern has room to negotiate further on the system issues, and based Hunter's hunch that an offer from the players to move down to the league's desired 50-50 split would get that done.

With a risk, Hunter acknowledged.

"It's getting hectic on both sides of the table," Hunter said.

Having negotiated with Stern for 15 years, Hunter passed the hot potato right back to him Tuesday with the hope that his longtime bargaining adversary has enough juice to get hard-line owners to look past the obligatory follow up on the threat of worsening the proposal and put NBA players back on the court -- and people in the seats -- with a few system compromises that the players say they need.

I asked Hunter, knowing Stern for as long as he has, how he expected the commissioner to react to having his bluff called Tuesday.

"I don't know that we've ever called his bluff," Hunter said.

"I think you just did," I replied.

"It's yet to be seen," Hunter said. "My concern and what I'm trying to determine is whether or not David may be a hostage in his own camp. That's what kind of concerns me, what's going on over there. He may not have the sway that he once had. He's been a hell of a commissioner, but I'm not sure."

Considering the stakes, and the pressure he faces from the strident wing of the union that wants to decertify, Hunter was in a frisky mood -- even taking a shot at Hall of Famer Michael Jordan when asked what advice he'd give the now-Charlotte Bobcats owner.

"I'd give him the same advice he gave Abe Pollin," Hunter said, referring to Jordan infamous clash with the late owner during the 1998-99 lockout, when Jordan told him to sell his team if he couldn't make a profit. "He should take his own advice."

Rhetoric aside, talks to save the 2011-12 season have reached critical mass, a time when reason is needed more than ever. And regardless of how and when Stern follows through on his threat Wednesday, the wheels already are in motion to bring the two sides together and finish the deal, now that an economic gap that was once nearly $10 billion over 10 years finally has been closed.

According to a person involved in the talks, the players are prepared to submit a proposal to the league with the 50-50 split owners want and the system changes the players need to make the deal more palatable. Over 10 years, the players' proposal will more than account for the owners' stated economic losses of $300 million a year -- shifting $3.3 billion from players to owners compared to the previous 57 percent share the players received.

In return, the players want the owners to come to them on the system issues. Chief among are sign-and-trades and the size and length of mid-level exceptions for luxury-tax-paying teams; a reconfiguring of the luxury tax "cliff" that teams wading into the tax experience by giving up tax money and having to pay it; the severity of the additional luxury tax for repeat offenders; and the escrow system. The latter point involves the league's proposal to roll over 3 percent per year of the escrow they withhold from player paychecks to account for a possible overage in their share of BRI.

"We’re open-minded about potential compromises on our number," Fisher said. "But there are things in the system that are not up for discussion, that we have to have, in order to be able to get this season going again."

But before that happens, prepare for more foot-stomping, more threats, more rhetoric -- and yes, more asshattery.

The owners have a willing accomplice to negotiate with and deliver them more than the $300 million a year in losses they've spent two years seeking. The players have a union that's preserved a soft cap, guaranteed contracts, existing max contract structures and is trying to finish the job by preserving a healthy mid-level exception for all teams and fight off efforts to corral teams as they wade into the tax and stay over it for three out of five years.

Yet some of those players -- as many as 200, according to reports Tuesday night -- are ready to detonate the talks in favor of a decertification tactic that could jeopardize the entire season and, by the way, has never been successful in the history of professional sports.

It all has the potential to blow the deal to high heaven at the very moment when it is on the one-foot line. And given the chaos that will ensue, those very owners may actually enjoy watching that for a while.

Calm before the storm? This is the storm before the calm. A collision of radicals or a collision of rationals.

Or maybe a little bit of both before it's all over.
Posted on: November 7, 2011 9:44 pm
Edited on: November 7, 2011 9:53 pm
 

To vote or not to vote?

NEW YORK -- As the players' union prepared to host representatives from all 30 teams Tuesday, a person with knowledge of the plans told CBSSports.com that executives from the National Basketball Players Association will be open-minded about whether the league's latest proposal should be put to a vote by the full membership.

The primary purpose of the meeting will be to educate player reps about the details and ramifications of the NBA's 50-50 proposal, which commissioner David Stern has told executive director Billy Hunter in writing that he has until 5 p.m. Wednesday to accept or be faced with a far worse offer. Player reps also will be informed of the other options at their disposal if the union rejects the deal and the league forwards what it is calling its "reset" proposal -- which includes a 47 percent share of revenues for the players, a hard salary cap and rollbacks of existing contracts, among other system restraints that are far worse than those in the standing proposal.

But union officials also expect that player reps will have polled their teammates and will present their views as to whether players, as a whole, want to vote on the deal, reject it, or seek a vote to dissolve the union through decertification and take their fight to the federal courts.

"I'm expecting a diversity of opinions, quite frankly," said the person with knowledge of the format for Tuesday's meeting.

This was the case Monday, as players were active in expressing their opinions to their agents and via social media, with the only consensus being that players are divided on what the next steps should be. Some, like Kevin Martin of the Rockets and Steve Blake of the Lakers, are pushing for a vote. Others, like Cavaliers player rep Anthony Parker, say they're opposed to the deal and would vote against it.

Nothing will be known for sure until the player reps meet with union leaders Tuesday. And to some extent, further conversations will be required between the NBPA and NBA negotiators to clear up certain technical aspects of the proposal -- such as a provision the league has asked for to account for a scenario in which player salaries exceed their 50 percent guarantee by more than the 10 percent escrow withholding in the proposal, up from the previous level of eight percent, sources said.

Indeed, while no meetings between the two sides were scheduled as of Monday night, a person with knowledge of the situation told CBSSports.com that NBPA executives were hopeful that further conversations could be scheduled with the league before the Wednesday deadline.

While union president Derek Fisher and outside counsel Jeffrey Kessler excoriated the league's latest proposal after talks broke down early Sunday and executive committee members are not in favor of presenting it to the rank-and-file for a vote, union negotiators believe that some minor tweaks to unresolved system issues could make the deal more palatable. Among the issues, for example, would be permitting teams above the luxury-tax line to execute sign-and-trade transactions -- a detail the two sides are at odds on despite it only occurring five times during the previous six-year agreement.

Union executives will meet at 1 p.m. Tuesday at a Manhattan hotel with player reps, with all 30 teams expected to be represented either by their reps or alternates.







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