NBA, union continue to hash it out

NBA, union continue to hash it out
November 10, 2011, 6:12 am
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NEW YORK Wednesday marked Day No. 132 of the NBA lockout - the same number of days the NFL lockout lasted.

But this ain't the NFL.

And after yet another lengthy day of negotiations between the NBA and the NBA Players Association, this lockout ain't over, either.

The two sides squared off for nearly 12 hours, and came away having made what both sides said was little to no progress towards a new Collective Bargaining Agreement.

NBA commissioner David Stern had set a 5 p.m. deadline for the union to accept the owner's latest proposal, but opted to "stop the clock" and continue negotiations, which both sides will continue this afternoon.

"I would not read into this, optimism or pessimism," Stern said of the two sides reconvening today. "We'll just continue to negotiate."

While there was optimism among those close to both sides throughout the day, it's clear that the two biggest issues in this labor stalemate remain the basketball-related income split and a host of system-related issues.

The union has said it's willing to come off its last offer of a 51 percent share of the BRI, but made it clear that doesn't necessarily mean it'll settle for a 50-50 BRI split.

"We never actually said, 'here's 50-50 and now give us the entire system," said NBAPA president Derek Fisher. "If we continue to make economic concessions on the BRI split, in exchange for that, there should be more flexibility from the NBA and the league on the systems. That continues to be our belief."

However, the NBA has shown little flexibility to exchange one for the other, as they continue to tout the need for both competitive balance and an opportunity for all teams to profit financially.

"Our goal is to have a system in which all 30 teams are competing for championships," said NBA deputy commissioner Adam Silver. "And if well-managed, they have the opportunity to break even or make a profit. We don't see the ability to break even or make a profit, as a trade-off for the ability to field a competitive team. All those issues are still in play."

As far as the league's flexibility towards the union's system concerns, there's still quite a bit of distance between what the union wants and what the owners are willing to do.

"We hope that as we continue to try and negotiate, that there will be more of a willingness by the league and the teams to show the right flexibility in the system," Fisher said. "We believe once the dollars are set, the system is just a matter of working conditions for players and rights within the system."

When asked whether there was anything in the most recent bargaining session that gave him hope that the league would show more flexibility today, Fisher paused, looked at executive director Billy Hunter, and proceeded to say, "I can't characterize whether they showed flexibility or not. Obviously we'd have a deal done if the right flexibility was being shown. The fact that we don't have a deal lets you know there's a lot of work left to be done on the system."

Some of the system-related issues the union is focusing on include annual raises, sign-and-trades and mid-level exceptions for tax-paying teams.

Although both sides downplayed that any progress was made, sources contacted throughout the latest bargaining session and afterward, indicated that the two are closer to getting a deal hammered out than they're letting the media know.

"Remember, they have to go back and sell this to their people," one source said. "No matter what they agree on, those people, the owners and the players, are the ones who will decide if there's a deal or not. They're not going to be happy, or show signs of being happy, until this deal is done."

When asked about the most recent bargaining session, Stern said, "nothing was worked out today."

He later added, "We're not failing and we're not succeeding. We're just there."

If the two sides can't strike a deal Thursday and don't schedule any future bargaining sessions, look for the cries for decertification - a charge that includes Celtics forward Paul Pierce as one of its leaders - to grow even louder.

In order for the union to decertify, at least 30 percent of the players must sign a petition indicating they no longer want the NBAPA to represent them. The petition is then filed with the National Labor Relations Board, an independent agency of the federal government whose job entails conducting elections on labor union representation. The NLRB is also the same group that is presiding over the unfair labor practice charges filed by both the NBA and the NBAPA against one another.

Once the NLRB verifies the petition, an election can then take place. However, there's a 45-60 day window between when the petition is verified, and the actual election. In that time, the union can still negotiate on behalf of the players. Once the election takes place, all that is required is a majority vote for decertification, which would dissolve the union.

But the decertification process isn't that cut and dried for the NBAPA.

There's a very good chance that the NLRB won't even allow the union to decertify until the pending complaints filed by both sides are resolved.

A quick response won't necessarily be quick enough that an election to decertify wouldn't scuttle the entire 2011-12 season.

But decertification, maybe more than anything else, has the potential to force the owners to negotiate on more favorable terms for the union which has already made several concessions already.

Decertification opens the NBA up to potential anti-trust lawsuits which may include, but not be limited to, treble damages, which would allow a court to triple the amount of damages awarded to a plaintiff.

With more than four months of negotiations having failed to produce a deal both the owners and players feel good in signing off on, members of the union will certainly step up their efforts in exploring the decertification process.

Pierce organized two conference calls recently in which players were made aware of what their options were with decertification, from one of the top anti-trust attorneys. Hunter told reporters that he was made aware of Pierce's intentions to talk with other players about possibly pursuing decertification.

In a recent interview with NBA-TV, Hunter said "we know there are close to 200 players who are apparently in the process of signing these decertification cards. In my discussions with Paul Pierce, he had indicated that they already in excess of 100, 130 guys he represented as signed cards. I don't know if that's true or not."

Hunter made it clear that Pierce's actions are not something the union has encouraged him to do.

"This is something that players are doing of their own volition, probably at the insistence of their agents," Hunter said.