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David Aldridge

Smith to NBPA: Decertification is not a 'silver bullet'


Posted Sep 15 2011 11:48PM - Updated Sep 16 2011 7:49AM

LAS VEGAS -- DeMaurice Smith came almost running out of the conference room at the Vdara Hotel, late for another appointment, he said, and quite conveniently, cutting off reporters before they could ask him a single question. But the assembled media wasn't his intended audience on Thursday; he'd come to put out a fire inside, armed only with words. You must stay together, the NFL Players Association Executive Director told the 30-plus NBA players that made it for the union's regional meeting here, piggybacking onto the "Lockout League" playing at Joe Abunassar's Impact Sports facility on Harmon Drive.

Smith had a message for those who were looking for the NBA's superstars to lead the way in labor negotiations with the league, instead of Derek Fisher's group of hard hats. During the NFL's lockout, most of its star players were not front and center either, Smith said. New Orleans Saints quarterback Drew Brees was one of the few elite level players who was a constant presence during the talks. Peyton Manning and Tom Brady lent their names to the lawsuit the union filed against the league, but it was the rank and file, people like Indianapolis Colts center Jeff Saturday, who did the heavy lifting to get a deal done--the same kinds of players who are leading the NBPA's fight.

In fact, Smith said, when Kobe Bryant expressed public support for the NBPA's leadership last August during a regional meeting in Los Angeles, Smith had a PDF made with Bryant's comments and sent copies to every NFL player.

Smith's words had the intended effect. A week that began with talk of agents plotting decertification and disparaging National Basketball Players Association executive director Billy Hunter's leadership ended with three dozen players standing alongside Hunter and NBPA president Fisher, all wearing the "STAND" t-shirts that they'd donned after a labor meeting in June.

"I don't think they were ever not behind us," a member of the union's executive committee texted Thursday, "but getting that kind of confirmation can only help."

Of course, many of those who were in the room were among the truest of believers. The question remains whether the solidarity inside the room will be matched by those who are not as engaged, and who could be swayed by family, friends and agents all looking to turn the money spigot back on as soon as possible.

ESPN.com and Yahoo! Sports each wrote stories this week detailing conference calls among some of the game's most powerful agents, including Wasserman Sports Group's Arn Tellem, BDA Sports' Bill Duffy, Priority Sports' Mark Bartlestein, Legardere Unlimited's Dan Fegan and Excel Sports' Jeff Schwarz -- all strong advocates of decertification, which would dissolve the union and allow players to file antitrust lawsuits against the league. If successful, under antitrust law, players would be eligible for punitive damages that could be tripled by a judge. The risk is that judges could rule against players or offer next to no damages. And once the union dissolved, players would lose things like health care and insurance that is currently covered.

Those who support decerification say that it brings pressure to bear on management to make a deal, because owners fear having to pay millions of dollars in damages if they are found to have violated the antitrust laws.

However, Bartlestein insisted in a telephone interview Thursday that the group's intentions have been misperceived.

"Billy's in a very difficult position," Bartlestein said. "He's trying to negotiate with people that don't want to negotiate with him. There have been no ultimatums (about decertifying). It's been trying to work with Billy and the Players' Association to see what kind of solutions are out there. To say we're trying to get rid of Billy or the union is just wrong."

Despite the presence of attorneys such as longtime labor lawyer Jeff Kessler, a strong advocate of decertification, the NBPA has been reluctant to pursue that avenue. (What many seem to forget is the NBA's federal lawsuit filed against the players last month in New York, which claims the union has not been bargaining in good faith. The league cited what it claims are numerous threats the union has made to decertify, and pointedly attacked Kessler as the chief ringleader. Kessler has pointed out that the NBPA has never actually decertified, unlike the NFLPA.)

"What we've assured our members is that every option is on the table," Hunter said Thursday. "And things happen in time. And so if and when what we're currently doing doesn't work, we're convinced we've hit a wall, then we have to exercise other options. And we're open to that."

In his remarks to the union Thursday, Smith said several times that decertification was not a "silver bullet" that would solve all problems. He pointed out that even though the NFLPA decertified in advance of the lockout imposed by the NFL last March, the two sides continued negotiations until a new 10-year collective bargaining agreement was reached in July.

Veteran players like the Celtics' Jermaine O'Neal -- one of the few who was around during the lockout in 1998-99 -- tried to calm the nerves of younger players who are anticipating the loss of revenue once their regular season checks stop coming in mid-November. But O'Neal told players if they take the current offer, they'll set the union back decades.

"A lot of our young guys are wide-eyed when they first see the numbers," O'Neal said. "We don't need to make a temporary, emotional decision. We need to make a long-term decision for a bigger purpose."

During what Warriors guard Stephen Curry called a "spirited" meeting, the union again broke down how much money each group of players in the league would give up under the league's current offer.

"A lot of guys weren't here in '98," Curry said. "This is the first time for a lot of guys. That's where you have vets, and guys like Billy who was here, been through that experience. We can hear from them, how to deal with the emotions of not being able to play the game that you love, especially when you hear fans wanting to see us on the court, just like we want to be. You have to deal with that. It all goes back to how each of us has to have each other's back and just wait for that fair deal."

In its latest economic proposal to the league, the union offered to further reduce its take of Basketball Related Income to 53 percent from its current 57 percent, coming down from its previous proposal of 54.5 percent of BRI. The league is seeking signficantly more financial givebacks from the players, with many seeking a majority of BRI for the owners in the next CBA. The NBA's initial proposal last February sought a 61-39 BRI split for the owners, according to the union, but the league has modified its proposal since, though NBA commissioner David Stern would not divulge details.

The union's 53 percent offer was one that was "on the road" to an agreement on the financial side of the equation, Stern said Tuesday. But the league could not agree to the union's demand that the current system, with a soft cap and numerous exceptions to the cap, be maintained as a condition for accepting the 53-47 BRI split.

Players here think the union has made enough concessions.

"The reality is that every time we go in, we're trying to give them more and more," said Suns forward Jared Dudley, the team's player representative, on Wednesday. "Obviously, to be honest with you, we're all well off here. We all make a lot of money. For me to give back a million dollars each year, it's a lot of money, but for us to play basketball and to help the game, I'm willing to do that. But to cut everyone's contract 40 percent? I might as well sit out a year. I could sit out two years, because that's basically what would happen if I gave back 40 percent of my new contract."

Even though there may be potential progress on the aggregate dollars, Fisher maintained again that the union can't decouple the economic negotiations from the system (cap) negotiations.

"We've made the attempt," Fisher said. "There's only so far you can go, it seems, in that conversation, because they truly are interconnected. The number dicatates what type of system and what type of elements have to be contained in the agreement...at this time, I'm not sure there's something that can be introduced into the process. Right now, they're too closely related to remove one from the other."

Hunter also said Thursday a group from the union would be going to the National Labor Relations Board offices in Washington in the next three weeks to meet with the NLRB's general counsel to see if the decision can be expedited. The union filed an NLRB claim against the NBA last May, before the lockout, claiming the NBA was issuing a "take it or leave it" offer and not negotiating in good faith. The union amended the charges after the league imposed the lockout in July.

Like decertification, though, Fisher warned against believing a positive NLRB ruling would be in and of itself a game changer.

"I think sometimes it's implied that we're somehow waiting, posturing, kind of sitting on the sideline, waiting for something to happen for us favorable in the NLRB and otherwise," Fisher said. "And that's not the case. It's a part of this process. It's an option that we exercised. But we're still taking action. And the main action is that we stand here together, regardless of what those rulings and proceedings are. At the end of the day, we'll have to negotiate a deal, and the only way we'll get a deal done that's fair is with these guys right here."

Longtime NBA reporter and columnist David Aldridge is an analyst for TNT. You can e-mail him here and follow him on twitter.

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