Tag:Jeffrey Kessler
Posted on: November 25, 2011 11:51 am
Edited on: November 25, 2011 7:11 pm
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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 16, 2011 3:50 pm
 

NBA responds to players' disclaimer

NEW YORK -- Lawyers for the NBA and players now suing the league for antitrust claims exchanged updated arguments in their pending federal case in New York in the hours after the National Basketball Players Association dissolved as a union Monday.

Under order from U.S. District Judge Paul Gardephe, the NBA furnished a letter Monday offering further proof that its request for declaratory judgment that the lockout was legal was based on adequate facts. The letter was due Monday, and thus included up-to-the-minute arguments in the aftermath of the players' union disclaiming interest to pave the way for antitrust lawsuits, two of which were filed Tuesday.

The players' response was ordered by Nov. 23, but players' attorney Jeffrey Kessler responded Tuesday.

Unsurprisingly, the league argued that the NBPA's decision to disclaim and take up its case with the NBA in federal court under antitrust law further supported the NBA's contention when it filed the lawsuit Aug. 2 that the players were going to do that all along.

"On more than two dozen occasions ... the union has threatened to abandon collective bargaining and commence antitrust litigation to challenge the lockout," league attorneys wrote. "And the  complaint alleges that the union's threats of antitrust litigation are having a direct, immediate and harmful effect on the parties' ability to negotiate a new collective bargaining agreement."

League attorneys sought declaratory judgment from the U.S. District Court for the Southern District of New York that the lockout could not be challenged under antitrust law, asserting that the NBPA's harboring of that threat was hindering negotiations and that a new CBA would be more easily reached if the court pre-emptively removed the threat. In a motion to dismiss, attorneys for the NBPA argued that the court lacked jurisdiction because there was no "ripe controversy" -- since at the time the NBA sued, the union had yet to decertify or seriously consider it. Kessler reiterated those arguments Tuesday.

 "It was only at that moment that the NBPA decided to disclaim its interest in being the collective bargaining representative of the players -- a decision that was uncertain until it was made," Kessler wrote.

Whether or not the NBA's lockout can be legally challenged under antitrust law is only half the story, but it's a very important half. Lawsuits filed in California and Minnesota Tuesday also seek damages -- a step that seemingly would be affected by the New York court's ruling on whether the lockout was legal in the first place. It's all complicated -- far more complicated, costly and risky to both sides than it would've been for the parties to sit in a room and finish a collective bargaining agreement that was, by any measure, 95 percent done when the talks broke down.

"I still can't believe that any of the lawyers on either of the sides is confident enough ... that they're willing to blow up the season, spend hundreds of thousands -- if not more -- on legal fees, and risk either treble damages or billions in player salaries," said Gabe Feldman, director of the Sports Law Center at Tulane University.

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 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 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.







Posted on: November 7, 2011 1:27 pm
 

Legal options: Players can give ultimatum, too

NEW YORK -- As union officials huddled Monday to consider their options in the face of an ultimatum to accept the owners' latest proposal, one such option could be a shift in legal strategy with plenty of risk and reward attached to it.

Rather than waiting for the players to get the necessary signatures to dissolve the union by seeking a time-consuming decertification vote, Billy Hunter could advise commissioner David Stern that, if no further negotiations occur before the Wednesday deadline to accept the owners' deal, he will have no choice but to step aside as executive director of the union.

The legal term for this would be a disclaimer of interest, which would only require a letter from Hunter to Stern advising him that the National Basketball Players Association no longer exists as the bargaining unit for the players.

The advantage of this for the players would be that, once the letter is sent, their attorneys would not have to wait 45-60 days for the National Labor Relations Board to authorize an election to formally dissolve the union. With a disclaimer of interest, the players could almost immediately commence an anti-trust lawsuit against the NBA, said Gabe Feldman, director of the Sports Law Center at Tulane University.

"The owners have threatened to, in some ways, end the negotiations if (the players) don’t agree by Wednesday, because 47 percent is a non-starter -- we all know that," Feldman said. "So the owners have given the players an ultimatum with an artificial deadline, and it may force the players to respond with their own ultimatum. But both are destructive of the negotiation process.

"Clearly, what David Stern has said is designed to push the players to make a concession with the threat of essentially ending the negotiations," Feldman said. "And that’s what the players would be doing by threatening to dissolve the union."

A parallel threat to dissolve the union through a decertification vote already is under way, with players and agents dissatisfied with the union's representation consulting with anti-trust attorneys to weigh the costs and benefits of decertifying. But while a decertification initiated by union members has a better chance of holding up in court as not being a "sham," the disclaimer of interest route is more expeditious and could apply the leverage players are seeking without endangering the entire 2011-12 season.

A key difference, however, is that with a player-initiated decertification, union leadership would remain in power until the election, and thus, negotiations could continue. If Hunter steps aside and dissolves the union voluntarily through a disclaimer of interest, the union would have to reform before negotiations could continue.

"You can't flip a light switch on and off," Feldman said. "It’s a sobering process. Writing a letter one day and tearing up the letter the next day flies in the face of that."

That distinction makes a disclaimer a dangerous legal weapon for the union to implement at this point. The NBA already has sued the NBPA in federal court, seeking declaratory judgment that a disclaimer or decertification on the players' part would be illegal. If the union disclaims, in some ways it would strengthen the league's legal argument that it was planning to dissolve all along. But the union would have a valid counter-argument.

"Billy Hunter could make the argument that dissolving the union was never a strategy until Stern threatened to end the negotiations unless we agreed to every last one of their demands," Feldman said.

As evidence that he never intended to dissolve the union, Hunter could cite the players and agents who have become so enraged with his refusal to do so that they've begun the process of doing it themselves. In fact, for legal purposes, both a disclaimer and decertification could proceed on a parallel basis as a last-resort response to the league's ultimatum, Feldman said.

The biggest legal benefit to dissolving the union through a disclaimer would be that, once the union was transformed into a trade association, the players could almost immediately file an anti-trust lawsuit against the league -- which in theory would open the owners to not only the financial losses of a canceled season, but also anti-trust damages. In all likelihood, the players would file their action in the 9th Circuit in California, where more employee-favorable law exists. Since the league already has pre-emptively sued in the employer-friendly 2nd Circuit in New York, a messy and potentially lengthy jurisdictional battle would then unfold.

And while the disclaimer would be a more expeditious route to antitrust action, it would also be less likely to succeed than a decertification initiated by the players. Courts would be more likely to view a disclaimer as a bargaining tactic, rather than a decision with the true intent to dissolve.

NBPA outside counsel Jeffrey Kessler, who oversaw the NFLPA's disclaimer of interest, "wants to protect not only players in this negotiation but players' ability to use this weapon in the future," Feldman said. "He has to make it appear that this dissolution is a not a sham."

If either of these legal strategies becomes official, the hope of a swift end to the impasse at the bargaining table would be seriously imperiled. So Hunter's best move before Wednesday may be to directly ask Stern for another bargaining session before Wednesday in an effort to close the gap on the remaining system issues so he can bring the deal to the players for a ratification vote. If Stern refused, Hunter could advise him that he will have no choice to send him a disclaimer of interest letter -- and indeed, that even if he doesn't step aside, the players are planning to dissolve the union on their own through decertification.

The question of how Stern and the owners would respond to the players' own ultimatum is a risky and unknown game of roulette that union leaders will have to decide if they want to play.

"It could go either way," Feldman said. "It could cause enough owners to be skittish and want to avoid the risk of anti-trust litigation -- because if they lose there, it’s a huge loss. ... The other side is that it could cause Stern and the owners to say, 'We’re not going to let you manipulate labor law by threatening us with an anti-trust suit and we're going to take a stand.

"The question becomes: Do all of these threats bring the sides closer together," Feldman said, "or push them further apart?"
Posted on: November 7, 2011 10:50 am
Edited on: November 7, 2011 11:31 am
 

Union wants meeting, but do hard-line owners?

NEW YORK -- Officials from the players' union would like to arrange one more round of bargaining with the league before Wednesday's deadline to accept the owners' latest proposal or face a far worse one, sources confirmed to CBSSports.com Monday.

But there are fears on both sides that hard-line owners who aren't comfortable with the deal as it stands now will resist such a meeting because they prefer the 47 percent deal with a more restrictive salary cap -- the deal commissioner David Stern said Sunday would be on the table if the union rejected the existing proposal.

The delicate state of negotiations faced increasing pressure from hard liners on both sides Monday, with players and agents pushing for union decertification continuing to organize those efforts and hard-line owners believing this is the last chance for a more liberal proposal before they gain control.

"I think, at the end of the day, this group (of hard-line owners) said, 'OK, we will let you do it your way up until Wednesday,'" a person in contact with ownership told CBSSports.com Monday.

If the players didn't accept by Wednesday, those owners would say, "We do a deal on our terms," the person said. 

In addition to a 47 percent share of revenues for the players and a flex cap, those terms also would include a relinquishing of guaranteed contracts and a rollback of existing salaries, sources familiar with the hard-line owners' position said.

The deal on the table for the players to accept by Wednesday includes a 50-50 split of revenues, which a significant number of mid-level players are believed to be amenable to and which superstar Kobe Bryant also would be willing to accept, SI.com reported. The proposal includes a band of 49-51 percent for the players, which union attorney Jeffrey Kessler characterized Sunday morning as "a fraud" because revenues would have to explode with 20 percent annual growth for the players ever to receive 51 percent. The union has proposed a 51-49 split in favor of the players, with 1 percent going to benefits for retired players.

It seems unlikely that the union would accept the current deal and recommend it to the players for a vote before Wednesday, but members of the executive committee were scheduled to speak Monday afternoon on a conference call to plot their next move ahead of a mandatory meeting of all 30 player reps Tuesday in New York. Union leaders' key objections center around system issues that they feel league negotiators did not go far enough in addressing during the most recent round of bargaining that led to Sunday morning's ultimatum. As ESPN.com reported, union negotiators feel that with a few tweaks to the remaining unresolved system issues, they would feel more comfortable recommending the proposal for a vote rather than risk having the process co-opted by radicals on both sides.

A successful decertification movement combined with the hard-line owners taking over with their 47 percent offer would throw the talks into chaos and imperil the entire 2011-12 season.

Some of the differences between the two sides' positions on outstanding system issues are so minor that fear is growing among a significant number of moderate agents who do not favor decertification that the season could be lost over issues that would have little impact on the financial state of the league and efforts to improve competitive balance. For example, the two sides are only 50 cents apart on the additional luxury tax that would be imposed for teams that spend up to $10 million over the tax line and have identical proposals for a $1 additional tax for teams that spend more than $10 million over.

The two sides' disagreement over whether tax-paying teams should be allowed to engage in sign-and-trade transactions also is largely irrelevant. According to a union source, there were only five transactions in which tax-payers took on a signed-and-traded player during the entire six-year CBA that expired July 1.

On two more key unresolved issues that the union views as paramount to an acceptable deal, the league already has met the players halfway. In the owners' existing proposal, teams that wade into the luxury tax would receive 50 percent of the tax payments foregone by making the move above the tax. And on mid-level contracts for tax-paying teams, the compromise proposed by the league calls for tax teams to be able to offer two-year deals starting at $2.5 million every other year. The union's most recent proposal called for four-year mid-level deals starting at $5 million for tax teams.

But efforts to close the gap on those final issues could be imperiled by the players' decertification movement and by intransigence among the original group of hard-line owners, who have tried in recent weeks to recruit more owners to their side. According to a person familiar with ownership dynamics, the so-called "original" hard-line teams were Atlanta, Charlotte, Cleveland, Milwaukee, Memphis, Philadelphia, Washington, Portland and Minnesota. There has been growing support in recent weeks for the hard-liners' position that Stern has given up too much in the negotiations -- thus, the ultimatum and subsequent shift to a more severe proposal if the players fail to accept the deal on the table by the close of business Wednesday.



Posted on: November 6, 2011 2:55 am
Edited on: November 6, 2011 2:03 pm
 

Talks blow up with ultimatum, Wednesday deadline

NEW YORK – With another ultimatum, artificial deadline and accusations of fraud and bad-faith bargaining, the NBA labor talks blew up again early Sunday. This time, they appear to be careening toward a point of no return.

After eight more hours of talks under the direction of a federal mediator, league negotiators delivered a proposal around 1 a.m. ET and informed the players’ association it has until the close of business Wednesday to accept it or receive a far worse deal.

Union attorney Jeffrey Kessler, singled out by David Stern as the one who rejected virtually all the compromises the commissioner said were proposed by mediator George Cohen, described the league’s tactics as “threats” and characterized the NBA’s description of its economic proposal as “fraud.”

“Today is another very sad day for our fans, for our arena workers, our parking-lot attendants, our vendors,” union president Derek Fisher said. “A very frustrating, sad day.”

League negotiators essentially offered the players a 50-50 split of basketball-related income, their obvious target for weeks. The offer was tweaked into the form of a 49-51 percent band for the players’ share – the same band discussed informally Oct. 4 at a key meeting that fell apart over the split of revenues between owners and players.

In the league’s proposal, the players would receive 50 percent of revenues (net about $600 in expense deductions, as in the previous system) if revenues grew as projected – 4 percent a year. Stern and deputy commissioner Adam Silver portrayed the band as capable of delivering a 51 percent share to the players if there was, as Stern described, “significant growth.”

But Kessler -- speaking with Fisher in the union’s press conference in the absence of executive director Billy Hunter, who was “under the weather,” according to an NBPA official – said it would take the “wildest, most unimaginable, favorable projections” for the players to ever receive 51 percent of revenues.

“The proposal that this is a robust deal at 51 is a fraud,” Kessler said. “… You can't get to the top of the band.”

The players, who received 57 percent under the previous six-year deal, proposed a 51-49 split in their favor – with 1 percent going toward a fund for benefits for retired players, such as health care, life insurance and pensions. The league never responded to that proposal, union officials said. By going from their previous proposal in which they would've received 52.5 percent, the players moved about $60 million in the first year of the new deal and nearly $400 million over six years. The owners remained in essentially the same place they’ve been economically since Oct. 4.

“They've been consistent for weeks,” Kessler said.

“We made the moves that we needed to make to get this deal done on the economics,” Fisher said. “It just doesn’t seem to be good enough for this particular group of team owners.”

Stern said the proposal will be on the table until the close of business Wednesday, after which the owners will forward a new proposal to the players offering them 47 percent of BRI and an NHL-style “flex cap,” two items the players previously have rejected.

“Hope springs eternal,” Stern said. “And we would love to see the union accept the proposal that is now on the table.”

But while the economic gap between the sides – once 20 percentage points apart – has now shrunk to 1 percent, the implosion early Sunday was as much related to system issues as money. But looking at those issues makes it cruelly implausible that they’d lose a season and squander billions of dollars over their differences.

"With the system issues that we felt like were left open, that we felt like were significant, that we must have in order to get a deal done, they did not go very far at all in trying to close that gap," Fisher said. "And we just did not get the sense that they really had the intent on coming in here tonight to get this deal done. Because there was every opportunity to do it. We were prepared to stay here until the sun came up to get this deal done."

The two sides could not bridge the gap on key aspects of the luxury tax system, specifically the penalty for teams that stay over the tax for three years out of five. The league reduced its offer from $1.50 additional tax for such teams to $1, while the union is holding firm at 50 cents additional tax on the first $10 million over the tax level and $1 after that. The punitive impact would only be felt by a handful of teams that historically have spent at those levels.

They also differ over the length and amount of mid-level exceptions that can be used by tax-paying teams. The players want tax-payers to be able to sign players to four-year mid-level deals starting at $5 million every other year. The league proposed two-year mid-level deals starting at $2.5 million every other year.

Non-tax-paying teams would be able to sign players to mid-level deals starting at $5 million, with the length alternating between four and three years each season under the owners’ proposal. The players want straight four-year mid-level deals for non-tax-payers.

The luxury-tax “cliff” experienced by tax teams, by which they felt the full brunt of going slightly over the tax level by losing all the tax money they would’ve received had they stayed under, also was addressed in the owners’ proposal. The league offered that such teams would receive half the tax money squandered by going from being a tax receiver to a tax payer.

The league has not relented on its insistence that tax-paying teams be forbidden to execute sign-and-trade transactions, which the union argues -- when coupled with the other system restrictions -- would dry up the market for free agents in a way that imitates a hard team salary cap.

"They want it all," Kessler said. "They want the system where tax payers will never be in the marketplace and that for repeat tax payers, it's going to be like a hard salary cap. And those deals are not acceptable for players today, and it's not acceptable for future generations of players. ... The players will not be intimidated."

Nonetheless, the players now find themselves at a crossroads that could determine whether there is a 2011-12 season by Wednesday. Can Fisher and Hunter, notably absent from the post-meeting news conference as Kessler fanned the flames, determine whether they can sell essentially a 50-50 deal to more than half the union membership? A deal with no hard cap, with guaranteed contracts, with mid-level deals scaled back mostly for tax-paying teams, and with salaries rising to nearly $3 billion in 10 years despite an initial 12 percent reduction?

If not, the union appears almost certain to dissolve – either through a decertification petition or a more expeditious but legally riskier disclaimer of interest – either of which would throw the talks into chaos and imperil the entire season.

“We’re not going to talk about other options,” Kessler said.

Stern said the threat of decertification is “not an issue that we're focusing on at this point.”

“We are trying to make a deal with the National Basketball Players' Association,” he said. “They are the duly authorized representative of the NBA players. That's a good thing, and we hope to make a deal with them.”

Fisher said he would communicate with the players and "assess our situation. … But right now, we’ve been given the ultimatum. And our answer is, that’s not acceptable to us."

In the end, the truest words spoken early Sunday morning came from Kessler, who said the owners' tactics were "not happening on Derek Fisher's watch. It's not happening on Billy Hunter's watch. It's not happening on the watch of this executive committee."

If the players successfully decertified, none of the aforementioned would be in power. 

A decertification petition requiring the signatures of 30 percent of union membersship would put the union on approximately a 60-day clock before an election is held to disband it -- and that's only if the National Labor Relations Board authorizes the election. Typically, the agency does not when a union has an unfair labor practices charge pending.

The mere signing of the petition by 30 percent of the union would not by itself cease negotiations since the union would remain in power until the election, which wouldn't happen before January -- if at all.

That leaves two months for cooler heads to prevail. But really, the stopwatch has been set for four days -- 96 hours to spare chaos. Of all the inflammatory words spoken after this latest fiasco, the words "best and final offer" were never among them.

That's legal mumbo-jumbo for this: There's still time to end the asshattery, if everyone's heads return to a place where oxygen is available.

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