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Steve Aschbruner

Settlement talks may be next chapter in lockout drama

Posted Nov 15 2011 2:37PM - Updated Nov 16 2011 6:20AM's Labor Central

NEW YORK -- If left solely to the lawyers and the courts, the likeliest date for the start of an NBA season -- for the resuscitation of the NBA, period -- might be in November. It just isn't clear which one: 2012? 2013? Something farther out and less predictable?

As dug in as both sides in the league's labor disputes appear to be now that the players have invoked their disclaimer of interest to dissolve their union as any sort of bargaining agent, the best bet for NBA basketball sooner rather than much later still would be getting several fellows in a room, rather than in open court.

They would be covering much the same ground that the players and the owners covered in 159 hours of negotiating and caucusing since the lockout was imposed on July 1. Only now that would be called "settlement talks" rather than "collective bargaining" and the lawyers would play larger roles than they had previously.

But even David Boies, the high-powered attorney hired by the players to sue the NBA over its alleged antitrust violations, agreed that would be the shortest and quickest distance between where everyone's at now and where they eventually want to be.

"We could try to settle the lawsuit," Boies told a group of reporters Tuesday evening in New York and on a teleconference call after filing class-action antitrust lawsuits in California and Minnesota. "Settling the lawsuit would not give you a collective bargaining agreement but it would open the way to games being played and it might be a pathway by which an overall resolution could be reached."

Nothing unusual about that, even as the litigious gears begin to grind at their unpredictable pace, a couple experts told

"The litigation team could serve as a proxy for the union leadership," said Michael McCann, director of the Sports Law Institute at the Vermont Law School and legal analyst for and NBA TV. "This is what happened in the NFL. The litigators there couldn't technically 'collectively bargain,' but they could try to negotiate the same core issues that were in place."

Most likely, if the two sides did try to get something resolved without going to trial and possibly dedicating years to the battle, the lawyers only get the owners and players part of the way to a workable labor contract. Boies said that they essentially would have to start from scratch rather than, for instance, picking up with the owners' most recently rejected proposal.

McCann imagined that a settlement might focus more on economic issues, with system issues addressed after the union returned -- with the NBA's blessing by that point -- as a bargaining agent again. He thinks it will happen, too.

Said McCann: "I actually think that before the season is cancelled, there will be another attempt at trying to work something out."

There is one potential snag, beyond the hardened feelings that might make it tough for one or both sides to make this late move toward compromise. Gabe Feldman, director of the Tulane Sports Law Program and familiar as @SportsLawGuy on Twitter, said that each side would be cautious about its willingness to begin settlement talks, lest that be taken as an endorsement of the other's legal claims.

"The fight we may have," Feldman said, "which is the exact fight we had in the NFL, is that the NBA owners may refuse to talk to the players unless they admit that they're still in a union and they're still engaged in collective bargaining talks. Because the owners don't want to validate or give any credence to the disclaimer tactic."

The players might be reluctant, in turn, because that portrayal might support the NBA's claim that the disclaimer of interest in shedding its union merely is a negotiating tactic.

So how does that stalemate get broken? "The district court judge appointed a federal mediator to oversee the [NFL] talks," Feldman said. "And the mediator put sort of a legal cover over both sides, saying your legal positions won't be impacted by your sitting here discussing this."

So federal mediator George Cohen, whose role in the NBA talks proved fruitless when it was simply owners vs. players, might get another crack with legal processes involved. Or someone like him.

"A court might very well say, 'You people ought to get together in a room and resolve this lawsuit,' " Boies said. "Courts do that all the time. But a court is not going to get into, 'Should [the players' share of league revenue] be 50 percent? Should it be 55 percent?' "

Time is of the essence, of course. Former NBA executive Stan Kasten said that the two sides have about six weeks to back away from the abyss, cut a deal and salvage an extremely shortened 2011-12 season.

Noted agent David Falk, meanwhile, said on NBA TV's GameTime Tuesday that the urgency is even greater. "In my opinion, and I've been saying this since the spring, I think it's highly unlikely we're going to have another 50-game season like we had in 1998," he said. "So I think, if there's a 30-day window that it takes from the time you shake hands to the time you have a season, and we need to have a 65- or 70-game season, we have a window of a couple of weeks to get our house in order.

"I'm not at all confident that will happen. I think we have a very short time left to save the season. And I think if we don't save the season, the losses are going to be insurmountable."

The owners and players thus far have failed to satisfactorily divvy up the NBA's annual $4 billion in revenues. Not only does that seem ludicrous to many casual fans, it raises questions about the players' decision to disband the union now; pursuing a legal remedy months ago might have given the courts more time to address the matter rather than wiping 2011-12 off everyone's docket.

Said McCann: "The down side to what the players did [Monday] is, they waited so long, some of these legal mechanisms that may be beneficial to helping the parties talk won't be available before the season is cancelled."

Certainly the mood Tuesday wasn't conducive to much discussion. Not with locked-out players such as Carmelo Anthony, Kevin Durant, Chauncey Billups, Ben Gordon, Caron Butler and even rookies Kawhi Leonard and Derrick Williams listed as plaintiffs against the league in the two lawsuits filed.

The league released a statement late in the day: "We haven't seen Mr. Boies' complaint yet but it's a shame that the players have chosen to litigate instead of negotiate. They warned us from the early days of these negotiations that they would sue us if we didn't satisfy them at the bargaining table and they appear to have followed through on their threats."

The NBA filed a pre-emptive lawsuit on Aug. 2 seeking to prove the lockout is legal and challenging the type of move taken Monday by the players as a negotiating ploy rather than a true decision not to be unionized. That suggests that both sides' early energy in the case will go toward a fight over jurisdiction, since California's 9th U.S Circuit Court and Minneapolis' 8th Circuit Court are considered more favorable forums for organized labor.

Boies suggested that the NBA throw open its doors and resume the business of basketball immediately, allowing settlement talks or litigation to play out in the background. That almost certainly will not happen, so any attempts to resolve the conflict will stay front and center. Both the court hearings and the settlement talks.

Assuming they begin -- and soon.

"They can call us, we can call them," Boies said. "A judge can set up a mediation. There are a lot of ways to get started. But it takes two to tango."

Takes two to tip off, too.

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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