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Steve Aschbruner

Cohen continues task of finding common ground in labor talks

Posted Oct 19 2011 8:02PM - Updated Oct 19 2011 9:11PM

NEW YORK -- If the NBA's players and owners agreed on a new labor deal but commissioner David Stern wasn't in the room to oversee it, would it have a chance of passing?

Like the proverbial tree -- shhhhh! -- falling in the forest, the short answer for the NBA probably is yes, as long as Stern was able to get fully briefed on what he might have missed. The longer answer, though, was something to consider due to schedule conflicts that reared up on the league Wednesday, forcing the commissioner to exit 90 minutes before the day's collective bargaining session ended.

On the lockout's 111th day, it wasn't Stern sitting down at his familiar spot before an NBA-themed backdrop to meet with reporters. It was, instead, federal mediator George H. Cohen, the man from Washington who joined the talks this week in an attempt to facilitate an agreement.

Cohen talks, Stern walks? Well, something like that.

"Everyone is extremely focused on the core issues, the difficult issues, that confront them," said Cohen, the director of the Federal Mediation and Conciliatory Service and a respected intermediary who has worked with similar disputes in the NFL, baseball, soccer and non-sports industries.

"The discussions have been direct and constructive," Cohen added while seated next to deputy FMCS director Scot Beckenbaugh, "and, as far as we are concerned, we are here to continue to help assist the parties to endeavor to reach an agreement."

How direct? How constructive? Enough that there might have been movement Wednesday on the split of BRI (basketball-related income), one of the most hotly contested issues of the lockout.

In fact, a source briefed on the talks told's David Aldridge that there won't be a problem on the split. Dallas owner Mark Cuban reportedly was helpful in moving the owners and the players -- each of whom had wanted 53 percent of BRI (the old split favored the players 57/43) -- toward the middle.

There reportedly was substantive discussion, too, of the practice of trading bad contracts. Besides attaching "the expiring contract of ..." to the front of some guys' names, teams have been able to swap underperforming players for helpful talent thanks to the cap impact -- and then re-sign some of the traded players.

Cohen took no questions, standard-operating procedure in the disputes he works, and he has asked both the owners and the players to abide by that, too. That's why union president Derek Fisher and NBPA executive director Billy Hunter didn't make themselves available for comment afterward, and that's one reason that Stern's absence from the end of Wednesday's session wasn't more noticed.

Said Cohen: "Once you get into mediation, it's the ongoing rule and principle that everything said to us is on a confidential, off-the-record basis. We've been functioning that way. We've requested each of the two parties to conduct themselves accordingly and I understand they have."

That is, unless you count the sort of anonymous sourced cited above, many of whom can be once- or twice-removed from the meeting room. They probably were muted more after Tuesday/Wednesday's session by the late adjournment and quick turnaround; that one ran from 10 a.m. ET to 2 a.m., followed Wednesday by a session lasting 8 hours.

Since Sept. 30, the owners and the union have met eight times for a total of more than 56 hours -- though output matters way more than input at this point, with the first two weeks of the 2010-11 regular season canceled and each side losing an estimated $170 million already fighting over its share of a $4 billion industry (and the system that delivers all that revenue).

Speaking more of that input, Cohen said: "We've done it in a variety of fashions. We've had full committees where up to 40 people are present. We've had sub-committees. We've had miscellaneous discussions." As is common in such mediation, the sides also have spent a good amount of time huddled separately, either talking with or waiting for Cohen as he helps them focus and hone their positions.

The talks this week -- which are scheduled to resume Thursday afternoon, with no end date suggested -- included the key figures, as well as the owners' labor relations committee (about a dozen reps), the union's executive committee (seven NBA players) and assorted attorneys and economists.

But for the final 90 minutes Wednesday, Stern, Boston owner Wyc Grousbeck and NBA general counsel Joel Litvin were not in the room. With the league's revenue-sharing committee meeting in another midtown Manhattan hotel -- the Board of Governors business had been scheduled long ago -- they had to split their time and attention.

Shortly after 5 p.m. ET, Stern was spotted exiting the site of the labor talks. Rumors flared: a breakdown of some sort? No, despite the chaos that swept briefly through the assembled media, the commissioner had excused himself for the other meeting.

Common sense suggested that the league's first order of business was the lockout, which continues to grind through its fourth month in what already is the second-worst labor mess in league history. Revenue-sharing? Yes, that's seen as part of the league's solution to financial losses that it said reached $300 million in 2010-11. Stern has said the 30 teams have been working aggressively on a system that will at least triple (from last year's $60 millon) the transfer of money from the bigger-earning markets to its have-not's.

But the CBA is even more important because, in each of the six years of the most recent contract with the players, there were no profits to share. That is why, the league maintains, it needs major salary and system concessions from the 400 or so NBA players. The two sides got as close as six points -- the players requiring 53 percent, the owners offering 47 -- but that gap threatened to further scar the season and triggered Cohen's intervention this week.

After Stern, Grousbeck and Litvin exited, the owners' side was led by deputy commissioner Adam Silver and San Antonio owner (and labor chairman) Peter Holt. Silver has been the league's lead negotiator in these talks anyway, and the people at the table have come and gone in various sessions.

Cohen's lid on participant's comments to the media might produce a positive result after all. But his skills in navigating both sides, without alienating either, was lauded by some who witnessed him working.

Sure the meetings ran long. But it apparently isn't uncommon with mediators in general, and Cohen in particular, that as much as two-thirds of the time can be spent caucusing as Cohen sought to frame positions. Of the time that was left, as a source familiar with the talks said of Tuesday's meeting, it got divided between full negotiations and breaks.

Finding common ground and bleeding emotion out of the room are considered important initial steps toward reaching a compromise. That's particularly true here; another source told that, without the mediator on site, Tuesday's meeting easily could have deteriorated to an abrupt end.

So keeping the two sides talking and defused is valuable. Getting them to stay at it Thursday afternoon -- after the full Board of Governors session -- and beyond is Cohen's next task.

Getting the deal and saving the season? That's not the mediator's job. That falls to the union, the owners, Silver, Stern and the others who (usually) are in the room.

Steve Aschburner has written about the NBA for 25 years. You can e-mail him here and follow him on twitter.

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