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NBA, union agree to meet with mediator Tuesday

Posted Oct 12 2011 7:30PM - Updated Oct 13 2011 6:35AM

National Basketball Players Association Executive Director Billy Hunter said in a radio interview with New York station WFAN-AM Wednesday afternoon that the NBA and the union will meet with a federal mediator next week.

George Cohen, director of the Federal Mediation and Conciliation Service, told The Associated Press on Wednesday he will oversee negotiations between the sides. Cohen says the meetings will start Tuesday in New York. Cohen said he already has been in contact with representatives of both sides "for a number of months."

Cohen was appointed director of the FMCS, an independent U.S. government agency, by President Barack Obama in 2009. The next year, Cohen helped broker a deal between Major League Soccer and its players just before the season was scheduled to begin, earning kudos from both the commissioner and players' union.

The two sides broke off negotiations on a new collective bargaining agreement last Monday after a seven-hour meeting, after which the league formally announced it would cancel the first two weeks of the 2011-12 regular season.

"We agreed, as of today, that we're going to meet with a federal mediator," Hunter told WFAN's Mike Francesa in the interview. A league spokesman confirmed that the sides were "working on scheduling a meeting for Monday" with a mediator. It was not immediately known which side requested the meeting with the mediator.

Meanwhile, sources said that NBA Commissioner David Stern and Deputy Commissioner Adam Silver met with officials from the National Labor Relations Board on Wednesday. The union filed a complaint against the league with the NLRB last May, accusing the league of not negotiating in good faith. The complaint was amended in July after the league imposed the lockout and canceled the Las Vegas Summer League. The league has filed its own complaint against the union, as well as a federal lawsuit in New York, claiming the union is not negotiating in good faith and has been planning to decertify. The lawsuit also asks that even if a judge upholds the legality of the union's decertification, that the judge voids all existing contracts.

Stern and Silver met with the NLRB on both complaints -- the one the union filed against the league, and vice versa.

The NLRB has spent the past five months investigating both sides' claims against the other, and is notoriously reluctant to proceed with cases it does feel will be winnable. The union's complaint against the league has been reviewed by the NLRB's New York office and its recommendation has been sent to the agency's Washington, D.C. attorneys, but neither the union nor the league knows what the New York attorneys recommended. If the NLRB rules for the players and files a complaint against the NBA, it could ask a judge to immediately end the lockout. Or, it could go to the NBA and tell the league of its intentions, and demand that the league and the union reach an agreement within 48 hours.

"They [the NLRB] have had our charge for four months," said attorney Lawrence Katz, the union's lead lawyer on the NLRB filing. "They've fully investigated it. They haven't asked us to withdraw the complaint. And that gives us a certain amount of confidence."

The NFL's lockout, which lasted four months, was resolved in part with the help of mandated mediation before a judge, after the league and the National Football League Players Association were not able to reach agreement on a new collective bargaining agreement in 16 days of negotiations with a federal mediator in Washington.

Until now, the NBA and the union have handled negotiations themselves, with several negotiating sessions during the last three weeks in a last-ditch effort to save the entire 82-game regular season. The NBA and the NBPA met for a total of 12 1/2 hours Sunday and Monday, discussing nothing but the "system" issues that have emerged as a major impediment to a new deal. Both sides indicated afterward that the system issues are tougher to solve than the split of Basketball Related Income that was believed to be the significant problem. At present the league is offering players 47 percent of BRI in the next CBA. The players are asking for 53 percent, which would be a four percent reduction -- worth about $160 million per year -- from the 57 percent of BRI the players got in the last deal.

The two sides briefly discussed a 50-50 BRI split as a "concept" during a negotiating session in early October. But the players rejected the concept before it reached an advanced stage, with the league saying it was the union that first broached the idea, only to pull it back. The union disputed that version of events.

Stern said after Monday's meeting that a "wide gulf" separates the two sides, though union officials said afterward that they believed they were making progress on several system issues and believed agreements on many of them were possible with additional sessions. But although the sides aren't that far apart on issues like contract length -- the union is proposing five-year maximum lengths for Larry Bird free agents, and four for non-Bird free agents; the league is countering with four years and three years, respectively -- the amount of annual raises and the amount of luxury tax remains a legitimate area of disagreement between the sides

The NBA is seeking to impose a "supertax" on teams that exceed the luxury tax threshold. The union feels that the supertax as proposed by the league would amount to a de facto hard cap.

Under the just-expired CBA, teams that exceeded the threshold of $70.3 million last season had to pay a dollar penalty for every dollar they were above the threshold. The league wants to increase those penalties on a sliding scale, starting at $2 for every dollar over the threshold to as much as $4 if teams continue to exceed the threshold over several consecutive seasons.

The union countered with a proposal that would have lower increases in the tax on specific amounts of money. Under the union plan, teams would be taxed $1.25 on the first $5 million they exceeded the threshold, $1.75 for the next $5 million, and so forth. The league rejected that proposal. The two sides are also far apart on the amount of annual raises players should receive. Under the old deal, Bird free agents got annual 10.5 percent raises, and non-Bird free agents got eight percent raises. The league wants to reduce those significantly, while the union countered with a proposal that would allow for 10 and nine percent raises annually for Bird and non-Bird free agents, who would take shorter deals as a mutual incentive for both sides.

Asked by Francesa what he thought was necessary to get a deal done, Hunter said, "there's got to be some movement, some softening, on the part of probably, I guess the hawks on the NBA side. They have to basically give David the authority to do a deal that he thinks is appropriate."

Hunter also said the union would be willing to discuss reductions in roster size from the current maximum of 15 down to 12 players, or allowing "split" contracts that would allow teams to send players down to the NBA Developmental League during the season if they thought the player needed work he wasn't getting in the NBA.

"We've already indicated that we'd have discussions about the size of the roster," Hunter said.

Hunter said that he was hopeful that the lockout would be over by Christmas, when the league has one of its biggest days of the season, with televised games lasting most of the afternoon and early evening.

"I'm externally optimistic," Hunter said. "I want it to work out. I want it to work out for both sides. I don't want to kill David. I don't want to kill the other owners. But I don't want them to kill me, either."

Information from The Associated Press was used in this story.

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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