At a time when rational minds could get a deal done between the NBA and its players, union attorney Jeffrey Kessler — already disliked by David Stern and the owners — came in with a flamethrower saying the owners treat players like “plantation workers.” Stern threw some fire right back at Kessler.
Wednesday, Kessler said he would apologize for the comments. Via the twitter account of ESPN’s Chris Broussard.
“The comments that I made in The Washington Post took place in an interview late at night Monday after a very long day. Looking back, the words that I used were inappropriate; I did not intend to offend. I was merely passionately advocating for the players. I intend to call Commissioner Stern and offer my apologies for the remarks. It is very important that there be no distractions now and that the parties try to make a deal to save the season.’
Stern will accept the apology, still not like Kessler, and we’ll all move on.
But note to you kids reading at home — all slavery and Hitler references miss the mark when you are talking sports. Don’t use them.
In case you think the NBA owners and players might tone down the rhetoric and start to negotiate like adults, we bring you this.
Union attorney Jeffrey Kessler — one of the top sports labor attorneys and the nation — went back to the “plantation” reference with NBA Commissioner David Stern (as Bryant Gumbel had done), and Stern responded with plenty of venom of his own.
The Washington Post has the gory details, starting with Kessler’s thoughts on Stern’s ultimatium.
“To present that in the context of ‘take it or leave it,’ in our view, that is not good faith,” Kessler, who also represented the NFL players in their labor dispute with the NFL, said in a telephone interview Monday night. “Instead of treating the players like partners, they’re treating them like plantation workers.”
In a phone call Tuesday, Stern blamed Kessler for the stalled talks and said he deserved to be “called to task” for the remark.
“Kessler’s agenda is always to inflame and not to make a deal,” Stern said, “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.”
Stern and the owners don’t really like Kessler, in case you didn’t pick up on that. The league’s pre-emptive lawsuit trying to block union decertification (filed months ago) mentioned Kessler by name a number of times.
With the NBA and its players flirting with Armageddon, this kind of inflammatory language just makes it harder to get a deal done. Plantation — meaning slavery — references always bring a lot of baggage with them. While you can try to make a contextual argument, it’s hard to do when the median salary in the NBA was $2.3 million last season.
In the end, Kessler and Stern have to sit in a room together and pound out a deal if an NBA season is to be saved. And right now, they are acting like four year olds fighting over Halloween candy. Sadly, we can’t just send them both to their room for a timeout.
After labor negotiations ended late Saturday/early Sunday morning in New York, David Stern told reporters in a press conference that federal mediator George Cohen had suggested six elements of what Stern called “what-if” compromises. Stern said the league accepted five of them and put them into a formal proposal. Included was a 49-51 band of BRI, wherein based off of aggressive revenues, the players would get 51, and under underwhelming-to-standard rates, the league would get 51. Other elements included a modified mid-level exception.
Then Stern lowered the boom.
The offer, Stern says, is on the table until Wednesday at the close of business. At that time, the offer expires and the owners will respond with a new offer of 47 percent across the board for the players and a return to the flex cap the union balked at right before the lockout was enacted. It is the ultimate power play, set up under the pretenses of compromise through acceptance of Cohen’s suggestions, and levied with the biggest fear from analysts, that the deals would only get worse from here on out.
Stern painted the collapse of a deal Saturday night on union attorney Jeffrey Kessler, who Stern said rejected nearly all of the elements in the proposal. In doing so, Stern has provided the union with a bad guy to pin it on. The 51 high-end offer on the band gives them something to save face with, even as members of the NBPA have sworn not to go lower than 52 percent (and this offer from the union is very precisely geared to go beneath that), and the structure of the advanced luxury tax and restrictions on teams in the luxury tax (a $2.5 million mid-level exception for tax payers, along with no sign-and-trades) are preferable to the flex-cap and more aggressive maneuvers. It’s a total victory wrapped in a blanket of compromise. It’s strategy at Stern’s most brilliant.
The countdown is on. The question is whether the players believe their position will not become stronger, if they believe decertification is a viable option, or if they believe this is enough for them to swallow and the best they will get. A season may hinge on it.
Clock’s ticking, and Stern just put the union in check.
The Miami Heat will not travel to face the Knicks and officially christen the renovated Madison Square Garden Wednesday as originally planned. The lockout drags on and the NBA and its players union are not even scheduled to meet and talk in the near future.
But good news — some NBA lawyers are going to make a lot more money Wednesday.
That’s because Wednesday the two sides will be in a New York courtroom having their first arguments in a preemptive lawsuit filed by the league. The goal of that lawsuit was to throw water on any plans the union had to decertify. The league’s suit asks that the lockout be ruled as lawful so it cannot be attacked by anti-trust lawsuits — the primary goal of decertifying the union is to sue the league on anti-trust grounds.
But wait a second, you say — the union has not even tried to decertify yet. You’re right (and that’s what the union says). But the league wanted to squelch that idea back on Aug. 2 when it filed the lawsuit.
That same suit asks that if decertification of the union is allowed, the league should be able to void all existing NBA contracts.
The union filed to have this case thrown out, basically calling it frivolous. That is what the two sides will be arguing today, whether the case should even go forward.
What the owners were really doing with this lawsuit is what is called “forum shopping” in legal circles — filing a pre-emptive strike in a district considered more favorable to your case so that the other side doesn’t get to choose the venue. So long as this suit is alive pretty much all NBA anti-trust issues would be heard in the same district in New York (where the league has gotten favorable rulings in he past).
Also at the heart of this is the union’s outside legal counsel Jeffrey Kessler. He is a bulldog in negotiations and was the guy that advised the NFL players union to decertify. The league and owners can’t stand him. He has been a known proponent of decertification for the NBA (or at least was early in the process) and the league says their case is valid because Kessler brought the issue in the media and elsewhere.
This is all legal wrangling for the hypothetical situation that the players union goes the route of decertifying and then having players sue he league on anti-trust grounds.
Frankly, if we get to that at this point the entire NBA season is toast. So NBA fans shouldn’t really care who wins today’s legal wrangling, they should care that soon it all becomes moot.
Throughout these NBA labor negotiations there has been a lot of focus on who is in the negotiating room. When it has been a small group led by Billy Hunter and David Stern, there has been progress. When Kevin Garnett or Paul Allen — or really any larger group — becomes involved things blow up.
But there is one other interesting dynamic out there — union attorney Jeffrey Kessler.
One of the most celebrated sports attorneys around, he is the union’s hard liner. He helped guide the NFL players when they filed to decertify their union. He recommended the same thing for the NBA players and the league feared him enough to file a preemptive legal strike against decertification.
And he has been out of the room this week as negotiations have moved to the brink of an NBA labor deal. (He is out of the country on other business.)
Which leads to this fascinating note at TrueHoop by Henry Abbott.
Much was made of Portland owner Paul Allen’s appearance in last week’s mediated session. The suggestion was that he was there to send a message that owners were holding a hard line.
NBA sources, however, say it was nothing of the sort. In fact, they say, he was there at the invitation of the NBA’s negotiators to watch Kessler. Allen was one of several owners who thought Stern and Silver had made players an overly generous offer of 50 percent of basketball-related income. The league’s lead negotiators essentially replied: Go see for yourself. You think you can get Kessler to go for 47 percent? Good luck to you.
Certainly some of this is spin from the league trying to defend Allen — right now everything both sides say is spin — but there might well be some truth in it.
And if Allen went in a hard liner, watched Kessler in action then reported back to the hardliners that 47 percent was out, it could help explain this week’s movement.
Remember, the NFL labor deal was struck while Kessler was away as well. Coincidence?