“Our orders are clear,” Fisher said. “Right now, the current offer that is on the table from the NBA is not one that we can accept.”
There were no talks between the sides Tuesday as tension over the four-month-old labor dispute remained high. All games through Nov. 30 have been canceled. Jeffrey Kessler, a prominent attorney for the players, accused the owners of treating his clients like “plantation workers,” a comment that drew a furious response from Stern.
Kessler said the owners’ current offer to give the players half of basketball-related income was not a “fair deal” and that the soft salary cap functioned like a hard cap.
“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.”
The vitriol surely won’t help close the gap.
“It certainly is dire,” Stern said about the stalemate.
Unless the players cave or the owners back down, which seemed highly unlikely despite increasing indications of fracturing on both sides, more games will be in jeopardy once Stern’s deadline passes. Stern said his demand that players take the current deal — which he said included five of six recommendations offered by a federal mediator during a lengthy negotiating session Saturday — was not an ultimatum, but rather “a plea to focus. Let’s make a deal now.”
Kessler said the current offer “deprives players of any meaningful opportunity to have a competitive market for their services.”
Stern said the league has made extensive compromises and “it is fair to say there are a number of owners who believe that the labor relations committee has moved too far in the direction of the players’ demands.”
Though a 50-game season could be theoretically played as long as there is an agreement by early January, hopes for a breakthrough in talks have become increasingly bleak.
“This is absolutely at a breaking point right now,” said Robert Boland, a professor of sports business who specializes in antitrust law and collective bargaining at New York University. “. . . I don’t know where the exit ramp is from this one.”
Stern said the owners’ final offer of a 50-50 split on basketball-related revenues with a luxury tax system will be replaced at the close of business Wednesday by an earlier proposal offering a 53-47 split and a hard cap. Players have previously threatened to start the process of decertifying their union, which would allow them to sue the owners for alleged anti-trust violations in federal court.
If either occurs — the current offer is replaced by a substantially less favorable one, or the players decide to dissolve their union and challenge the owners in court, as NFL players did unsuccessfully when they were locked out last summer — the dispute likely would drag on for months.
Experts say decertifying the union is a risky proposition. During this summer’s NFL lockout, the NFL players disclaimed their union and sued the NFL on anti-trust charges, seeking an injunction against the lockout. Though they won at the district court level, they lost on appeal, a result that sent them back to the negotiating table with less leverage — and months of time at the negotiating table lost.
The NBA Players Association continues to hope that the National Labor Relations Board will rule on its May complaint that the owners had bargained in bad faith and take action against the NBA. If or when that will occur, however, remains unknown.
“You’d like the NLRB to issue a complaint and seek an injunction [against the lockout],” said Lawrence Katz, a partner at Steptoe & Johnson who is representing the players. “That would be a home run.”