NBA AM: The Final Day For A Deal?
Lockout Update: Both side of the NBA’s labor fight continue to exchange phone calls and e-mails, although no formal meetings occurred this week, with a single session scheduled for next week on Tuesday.
With both sides now feeling the pinch and reality of lost games, there again doesn’t appear to be an urgency to reach a deal from the players’ side and that’s creating some interesting wrinkles.
As the NBA’s lockout reaches its 105th day, here are some notes worth commenting on:
Federal Mediator: Both sides of this fight have agreed to meet on Tuesday with George Cohen a federal mediator, the same mediator that met with the NFL and its Players in March and April only to fail to reach a deal.
Cohen has history with the NBA Players’ Association as he worked as outside counsel for the Players while with the law firm of Bredhoff and Kaiser through 2005.
Cohen was appointed as the 17th Director of the Federal Mediation and Conciliation Service on October 8, 2009 by current President Barack Obama.
Cohen’s role in this will be to act as an impartial voice to help get talks moving in the right direction. As a mediator he’ll try and find a reasonable middle ground for both sides and help keep the talks focused on the issues and not on the personal conflicts or emotions that have started to dominate this process.
The key point to note is that Cohen has no legal authority or power to force the sides to make a deal. He is a presidential appointee and does answer to the administration, but there is no legal power to force a deal or concessions and either side can opt to leave the process at any time.
The best analogy for the mediator’s role would be something like you having a disagreement with a friend. Another friend that wants to see you make an agreement comes in and listens to both sides and tries to help you find areas where you agree and helps you talk through the areas where you do not. Your friend has no power to make the sides reach an agreement, but has the voice and experience to help you see the bigger picture to find a common ground.
Sometimes the mediation process yields progress, sometimes it does not. Often times it gets both sides to consider options they may not have thought of, which is why this is an important next step, especially if this situation will end up in court at some point.
Ultimately both sides have to agree on a deal, which starts with communication and the mediator’s entire purpose is to help start a meaningful and productive dialogue.
Decertification: The NBA Players’ Association is still opting not to decertify as a Union and pursue legal relief from the court system.
Sources close to this process say that the way the NFL Players’ attempt to sue their way to a better deal played out that the NBA Players have listed that much lower on the list of options.
The NFL’s expired agreement with their Players required them to decertify immediately following the breakdown of talks, so they had to go down that road early or lose that option. The NFL Players initially won an injunction of the NFL’s lockout, however at the Appeals level that injunction was stayed by a three judge panel and the NFL’s lockout was ultimately ruled legal.
The attorneys for the NFL Players’ are virtually the same attorneys for the NBA Players’, so they know that route may not yield fruit.
The NBA Players’ are still waiting for a ruling on their Nation Labor Relations Board claim that the NBA is not negotiating in good faith. There remains some belief that if the NLRB rules in the Players’ favor, they can get a court ordered injunction that way, or at least get the legal process moving in their direction and force the owners to the table in a more agreeable manner.
The NBA has filed a similar complaint against the Players’, so there is legal action occurring behind the scenes and a ruling from the NLRB could come very soon.
As both sides wait out that process, the concept of decertification seems to be on the back burner as a last resort measure, so don’t expect decertification to dominate the process until after the NLRB rules.
Cancelling Christmas: NBA Commissioner David Stern was on WFAN in New York with Mike Francesa on Thursday revealing that if a deal didn’t come soon, more games including the Christmas slate of games could be cancelled.
“Right now, Tuesday, Tuesday, Tuesday, just before my owners come into town, having brought in the labor relations committee and Billy (Hunter) having brought in his executive committee, it’s time to make the deal,” Stern said. “If we don’t make it on Tuesday, my gut — this is not in my official capacity of canceling games — but my gut is that we won’t be playing on Christmas Day.”
Stern said he was hopeful that mediation could help move the process along, especially with the NBA Board of Governors set to meet in New York later this week.
“I think that if we don’t make a deal by the time my owners meetings come in Wednesday and Thursday, after we’ve met with the mediator on Monday and then met with each other on Tuesday, then I despair.
“Because we will have lost two weeks for sure on our way to losing more games, offers will get worse, possibly on both sides, and the deal’s going to slip away from us, as may the season,” he added. “So this is the time to make a deal.”
Sources close to the process say that the idea of a 50 or 60 game season is not overly appealing to the NBA this time around as it created so many issues in 1999 when the league tried to cobble together a season after a messy labor fight.
As things stand today, there is still the possibility of an 82-game season, and that’s what the NBA is still trying to accomplish.
Stern has made it clear that Tuesday is starting to look like D-Day for an NBA season, let’s see if the Players get the message.
Replacement Players: Federal law does allow for a business with locked out employees to hire temporary replacements. More than a few NBA Players have commented that they were told the NBA would look at replacement players if the entire season is lost due to the labor fight.
While the concept at the top level seems basic, the application is little trickier.
To use replacement players the NBA would have to declare an impasse with the NBA Players’ Association; this would be filed with the National Labor Relations Board and would require an investigation, similar to the one going on now.
If the NLRB rules that the Players’ are not negotiating in good faith, the NBA would then be allowed to open for business under the terms of their best last offer to the Players’ Association.
The Players’ would surely sue to block this move, but the reality is that if an entire season is lost the Owners could force through their current deal next year and start hiring Players.
How many NBA Players will hold the Union line, if the league re-opens?
The longer this process goes the more power shifts to the Owners side of the talks. So again, it would be wise for the Players to understand what happens next if the NBA cancels the entire season.
Can A Deal Be Made?: The basis of a labor deal still remain on the table.
Both sides have negotiated the share of revenue to a range that works, the middle ground is still 52% going to the Players and whether the end deal is 52% or a “band” as has been proposed that sets a salary cap figure at 53%, but gives a steadfast guaranteed at 51% – the compromise number is there at 52%.
The Players have already agreed to modify the mid-level exception, so that’s off the table.
The sides still remain divided on how to curtail spending. The Players have offered a modified Luxury Tax that’s slightly more punitive but not the aggressive structure the league proposed.
The NBA proposed a multi-tier system that increases the tax value for every $5 million over the tax line a team is – The compromise here is to slightly increase the tax line, and to set a marginally more restrictive system in place.
If the tax line moves to say $75 million and the Luxury tax is $2 for every dollar over, up to say $90 million and $3 for every dollar over that, they’d find traction.
If the end goal is a $100 million ceiling the Players would bite on that… as it stands now, $75 million is the harder ceiling most teams won’t pass. Split the difference to $85 million and a deal could be had.
This one won’t be easy because the Players view a punitive tax as a hard cap by another name. If the NBA comes off this stance, they can make a deal pretty quickly.
There are several other smaller options that could get resolved in a day or so, if the Revenue Share and Tax system can get agreed to.
The table remains set to reach a labor deal, and with David Stern pledging that Tuesday is “the day for a deal”, let’s see if one last stab at reason can bring both sides together.
Staying Busy: According to Marcus Thompson of the Oakland Tribune members of the 2007 “We Believe” Warriors team that upset the Dallas Mavericks in the first round of the playoffs are organizing a charity game versus many of the current Warrior players.
Jason Richardson, Matt Barnes, Kelenna Azubuike and Anthony Morrow have been confirmed, while Baron Davis, Stephen Jackson and Al Harrington are still being recruited.
The bulk of the 2007 squad will face off against current Warriors’ squad.
Stephen Curry, Dorell Wright, Jeremy Lin, Charlie Bell and rookie Jeremy Tyler. Monta Ellis and David Lee are being recruited. The bulk of this squad played together in Las Vegas last month at Impact Basketball’s Competitive Training Series.
The “We Believe” game is set to be played on October 29th at 6:30 p.m. at the San Jose State Event Center, with tickets going on sale soon.
More Twitter: Make sure you are following all of our guys on Twitter to insure you are getting the very latest from our team: @stevekylerNBA, @AlexKennedyNBA, @jfleminghoops, @TheRocketGuy, @EricPincus, @joelbrigham, @alexraskinNBA, @TommyBeer and @YannisHW.
NBA Chats: There are two NBA chats today starting with Yannis Koutroupis who will drop his weekly chat at 11am EST. Yannis serves as a Senior NBA Writer and the College Basketball Editor for HOOPSWORLD so get your questions in early as Yannis’ chats fill up fast. HOOPSWORLD’s Alex Kennedy will host his weekly NBA chat at 1pm EST. The chats do fill up fast, so getting in early always helps. If you are looking for the next NBA Chat, you can find them here: Upcoming NBA Chats