Nuclear capabilities cast dark cloud over NBA labor talks
By Ken Berger
CBSSports.com NBA Insider
Nov. 4, 2011Tell Ken your opinion!
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As commissioner, David Stern has presided over the cancellation of games due to lockout twice in 27 years. (AP)

It was the night David Stern canceled games for the second time in his quarter-century tenure as commissioner of the NBA, and all hell was breaking loose on 63rd Street in Manhattan. Camera and sound men were pushing and shoving on the sidewalk outside an upscale hotel, and two of them eventually squared off in the street.

A few hours earlier, jackhammers had been rattling on the corner, and before long, sirens were wailing and gas company officials were barging into a building amid fears of a potential gas leak. Never before was the tenuous state of NBA labor talks so appropriately depicted. Never before had life so accurately imitated farce.

An even more combustible environment is expected Saturday when negotiators for the league and players association return to the bargaining table -- if it can be called that at this point, with a hell-raising lockout a few days into its fifth month. It has become the mother of all labor disputes, easily surpassing the recent NFL work stoppage and making that one look like a stroll through Central Park.

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Amidst the unrest among their membership, the NBPA's leaders must consider: Who are they fighting for? Read >>
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Decertification of the NBPA can be achieved in a number of ways, but it's nonetheless the nuclear option. Read >>
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And it may just be getting started.

All the egos, immaturity, rancorous agendas and earsplitting caterwauling that make pro basketball so entertaining have conspired to form a rancid brew of discontent that threatens to boil over Saturday -- threatens to blow to high heaven and take the 2011-12 season with it.

On one side are 50 or so players, emboldened by hawkish agents fed up with the representation provided by the union, who have used the 48 hours going into this key bargaining session to sprinkle the nuclear option of decertification into this roiling brew. On the other side, according to the New York Times, is former union hardliner Michael Jordan -- now an owner -- leading a contingent of 10-14 colleagues in a vow to vote against any deal that gives the players more than 50 percent of league revenues.

So at the very time compromise is needed, each side will walk into the negotiating room Saturday with heavy threats hanging over them like a dark cloud -- and for no reason that any thinking person can see.

"If they put this to a vote today, more than 50 percent of players would be on board with 50-50," an agent who is not clamoring for decertification said. "They think they're going to get 200-plus votes for decertification? Are they out of their minds?"

Incredibly, Friday was one month to the day after the two sides completed economic moves amounting to $1.6 billion to nearly bridge the BRI gap -- ending a Times Square bargaining session an estimated $80 million-a-year apart. Thirty days later, there has been no further movement on the economic split. If neither side budges again Saturday, the season could veer down a treacherous path. However, if either side does move, it could feel the wrath of its own hardliners in a way that could break up the talks in even more spectacular fashion than we've seen so far.

If the negotiators can block out the noise and look past the distractions, they can see the deal that is there to be made -- the deal that has been staring at them for at least a month. The two sides are 2.5 percent apart on BRI -- the players holding firm at a 52.5 percent share and many owners unwilling to go beyond 50-50. The recipe for compromise can be found in a list of key remaining system issues that could -- and should -- spark the final economic moves that close the deal.

What each side needs is a deal its constituents can live with. There is plenty to like from the owners' perspective -- shorter contracts, smaller raises, a more punitive luxury tax system and, not inconsequentially, at minimum a $1.3 billion reduction in player salaries over six years compared to their previous share of 57 percent. It should be more than a fair enough deal to compel reasonable forces on the ownership side to trade a little of this for a little of that and move toward the players and toward a handshake.

But lost in the hysteria surrounding some players' decertification push have been key elements the union has held onto in the negotiation -- mostly system points, but some economic points as well that NBPA leaders could present to the membership as wins, even at less than 52 percent of BRI. Among them:

• Even in the face of what would be a 12 percent reset of salaries by going from 57 percent of BRI to 50 percent, player salaries and benefits would rise from $2.17 billion last season to $2.4 billion in the sixth year of a 50-50 deal and to $2.8 billion in the 10th year. This assumes a relatively modest 4 percent annual growth in revenues -- which is too low based on the upcoming windfall of a new national broadcast rights deal in 2016. At a compromised BRI share of 51.5 percent for the players -- the logical landing point of the negotiations, depending on how the remaining system issues are handled -- player salaries and benefits would be closing in on $3 billion in Year 10. Given commissioner David Stern's stated desire to grow the league into a $7 billion business in 10 years, the players would hit $3.5 billion by the end of the agreement.

• No hard salary cap. The "blood issue" for the union would be salvaged, depending on how the final luxury tax formula is negotiated. The players want tax-paying teams to continue to be able to use exceptions and execute sign-and-trades, and also want the tax "cliff" experienced when teams go from being tax receivers to tax payers to be flattened. Also, the union isn't satisfied with the owners' proposal to punish repeat offenders over the tax more severely. These are the key remaining system issues to be resolved.

• Guaranteed contracts. Once wiped out in the owner' draconian initial proposals, guarantees have been preserved by union negotiators.

• Mid-level exception. Though the amount will be reduced from $5.8 million to $5 million and the length of such deals is still being negotiated, the NBPA can assure a large portion of players that a healthy middle class will remain intact.

So while the onus is on the owners to be flexible on the unresolved issues given the extent of the players' economic concessions, there is a way for it to be done so that each side can walk away claiming it won some and lost some -- the hallmarks of a good deal. Then each side has to ask itself a question:

• Would 15 of 29 owners -- not counting the league-owned Hornets, who presumably will vote for a deal recommended by the labor relations committee -- risk losing the season over a percentage point of BRI or 25 cents per dollar in luxury tax?

• Would 230 or so players, a simple majority, prefer to dissolve the union and risk losing the season rather than vote for a deal that preserves the core of the system they've fought to keep?

There will be voices of reason in the room Saturday who will make these points and more in an effort to finally end a lockout that will only grow uglier and more damaging without a settlement. But beware the forces of evil, and the most powerful force of all: the calendar.

While sports law expert Gabe Feldman believes the players could gain some much needed leverage with the mere threat of decertification -- not to mention a petition signed by 30 percent of the membership to officially launch the effort -- he also understands what time it is. It's November, and disputes like this one rarely end before the drop-dead date when utter destruction is the only alternative. If the 1998-99 lockout is any guide, that date is still two months away.

"The drop-dead date isn't here yet," said Feldman, head of the Sports Law Center at Tulane University.

While Feldman agrees that decertification by the players would be risky and fraught with uncertainty, he envisions a timeline that could force the owners' hand by January. There are two very big ifs: 1) If the players can persuade the National Labor Relations Board to hold a decertification vote while the players' unfair labor practices charge is pending -- not the standard practice of the NLRB -- then could the mere threat of a lost season of revenues and possible antitrust damages compel the owners to make a better offer? And 2) if the players convince 50 percent plus one of the union membership to vote for decertification, can they hope for a temporary restraining order lifting the lockout by January -- and then get the owners to approve reforming the union in time to get a deal to save the season?

"There's uncertainty along the way," Feldman said. "The question is, is the uncertainty great enough for both sides to move?"

It takes 45-60 days from the time a decertification petition is filed until a vote is held -- if the NLRB even allows such a vote given the players' pending charge against the league. But if the hardliners on both sides win this weekend, and if there's no deal, and if the talks are thrown into chaos by the achievement of a decertification petition, that 60-day waiting period is a time when negotiations would be allowed to continue.

"That has to put some pressure on the owners that the season could be blown up, and it could be blown up by the players," Feldman said.

These are possibilities that antitrust attorney Len Simon no doubt explained to players on that conference call Thursday -- possibilities that federal mediator George Cohen, who will be back in the talks Saturday, will urge players and owners not to even begin to contemplate.

"You're dropping a nuclear bomb on 30 billionaires, half of whom obviously don't [care], otherwise this would've been done a couple of weeks ago, and half of whom were sort of hoping for something like this," said another agent who opposes decertification.

How the owners react to this threat -- if they react at all -- will have much to say about whether this weekend concludes with a deal or a nuclear winter for the NBA.

"It could cause the doves to become more dovish or the hawks to become more hawkish," Feldman said. "Or could bring them closer together."

But no matter how the leverage shifts, no matter what legal maneuvers are executed, you know what happens? Eventually, the same parties will have to wind up back in a room to negotiate this agreement if they intend for the NBA to continue to exist.

The agreement is there to be negotiated now. The deal is there to be made. And the alternatives should be too frightening for anyone any longer to be so irresponsible as to wave a match in this roomful of noxious fumes.

What's more frightening? This motley crew of bitter, disaffected agents and hardline owners have, in a bizarre way, joined forces. Every time these talks have reached a moment of truth, they've chosen chaos over reason, destruction over compromise, nuclear war over handshakes.

What makes this moment any different? Nothing, I'm sorry to say. Not a thing.

http://www.cbssports.com/nba/story/15991949/nuclear-capabilities-cast-dark-cloud-over-nba-labor-talks