NBA owners and players continue to try to execute a new collective-bargaining agreement (CBA). The first two weeks of the regular season are gone. On October 10th, NBA commissioner David Stern cancelled all games originally scheduled from Nov. 1 through Nov. 14. Although some see light at the end of the tunnel, nothing clearly has indicated an imminent end to the lockout. While the parties are locked up in mediation, the rest of us are fed secondary related stories, some less entertaining than others.
A. Close to and End?
A 16-hour marathon mediation session stretched from 8 a.m. Tuesday morning to 2 a.m. Wed. morning. The sides reportedly remain divided mostly by two issues -- the division of revenues and the structure of the salary cap system. Despite federal mediator George Cohen’s request that all parties remain silent, vague reports of "significant progress" have been whispered from the lips of alleged insiders. In the last CBA, the players took a 57% share of revenues. They have since offered 53%. The league wants a 50-50 split, which increases to a 51% share to the players if certain revenue projections are met. Talks resumed on Wednesday morning and will continue on Thursday. One prominent NBA veteran agent/attorney, Steve Kauffman, said he has noticed an increase in calls from NBA teams in recent days looking to "expediate" contract talks with assistant coaches. Kauffman sees this as an indication that owners believe something big is about to happen.
Assuming that Wednesday’s and Thursday’s talks fail, it is not clear as to the next deadline that will result in the loss of additional portions of the season. Some have speculated that the informal deadline is the end of this week, although no one from the league has claimed as much.
B. Delay Breeds Nonsense
The continued delay has led to some unintended and regrettable comedy on behalf of the players and at least one of their supporters. The players recently launched a "Let us play" Twitter campaign, which reportedly often pleads for "fairness." Apparently, this is supposed to conjure images of a small powerless child being locked in his room by a evil parent. C’mon, guys.
Even more disturbing is a bizarre statement by sportscaster Bryant Gumbel at the close of his HBO Real Sports television show earlier this week. Casting impartiality to the wind, Mr. Gumbel accused Commissioner Stern of standing in the way of a solution to the league's labor dispute:
If the NBA lockout is going to be resolved anytime soon, it seems likely to be done in spite of David Stern, not because of him. The NBA's infamously egocentric commissioner seems more hell bent lately on demeaning the players than on solving his game's labor issues. His efforts are typical of a commissioner who has always seemed eager to be viewed as some kind of modern-day plantation overseer, treating NBA men as if they were his boys. . . . His moves are intended to do little more than show how he's the one keeping the hired hands in their place.
Mr. Stern is a tough negotiator. To be sure, he has threatened to cancel games and followed through. He does not bluff. Stern also allegedly has said that the players are being misled by their union. Is that in poor taste? Maybe. Is it a legitimate negotiating tactic, especially if he believes it to be true? Of course. None of this makes Mr. Stern a racist, much less a man who desires to a plantation overseer.
Mr. Gumbel’s comments are shameful, and unless he is prepared to offer evidence of Mr. Stern’s racism, he should issue an apology to Mr. Stern immediately. Sadly, he now joins a growing list of African-American sports writers and athletes who scream racism whenever black athletes don’t get their way. This list includes Jason Whitlock, who in 2010 alleged accused the NCAA of slavery in its investigation of Reggie Bush for actions in violation of NCAA standards, i.e., "Reggie Bush is Kunta Kinte, a runaway slave." It also includes Minn. Vikings running back Adrian Peterson who, in March of this year, reportedly told Doug Farrar of Yahoo Sports the following in response to a question about ongoing labor negotiations with the NFL: "It's modern-day slavery, you know?" This from a guy scheduled to make about $10 million in 2011. I’ve never heard of slaves making anything close to that type of money. Where are they? Where do I sign up?
C. Potential Third-Party Suits
The city of Memphis reportedly is considering bringing a lawsuit against the NBA if the league cancels more games or the entire 2011-12 season. The Memphis Grizzlies needed city bonds to help put together their home at the FedEx Forum, and the city's taxpayers stand to foot a hefty $18M bond-payment bill if the entire season is cancelled. They city also is considering raising property taxes to pay for the bonds.
D. Top Players To Play Overseas?
Any continued work stoppage is not going to harm the pockets of the league’s top players. According to ESPN, LeBron James, Kobe Bryant and Dwyane Wade are among the locked-out NBA stars who could be making a world tour during what would have been the first two weeks of the season. Citing unnamed sources, the US-based sports network's website said plans were in the works for groups of NBA superstars to play between October 30 and November 9 in London, Macau, Australia, and Puerto Rico. Two games would be played in Australia and London, and all games would be played in venues of at least 15,000 seats. Among the others who reportedly could be involved are Derrick Rose, Carmelo Anthony, Chris Paul, Amare Stoudemire, Chris Bosh, Paul Pierce, Carlos Boozer, Rajon Rondo, Blake Griffin, Russell Westbrook, Kevin Durant, and Kevin Garnett.
Bill Staar is a partner in the Boston office of Morrison Mahoney LLP. He concentrates in the areas of product liability, construction disputes, toxic torts, and general business litigation. He is a member of DRI's Product Liability, Commercial Litigation, and Construction Law Committees, Vice Chair of DRI's Sports Law Group, and member of the Sporting Goods Manufacturers Association Legal Task Force.