Sunday, November 20, 2011


There has been a staggering level of debate recently. Players have been criticized, they don’t know what they’re doing. Owners have been criticized, they know what they’re doing but they’re dooming themselves. The former union has been criticized, it didn’t do enough. Or, it didn’t know enough to do anything. Writers criticize each other, we don’t know what we’re writing.

And then, the recurrent schools of thought. The anti-trust suit can’t work. Or, it would take too long. The players will miss their paychecks, some will be okay, more will not.  Through the circle, fast and slow.

There's a few lone voices in the wilderness, still hinting at the possibilities for a back channel deal.  It's the type of thinking that once had popular support, it's a combination of hopefulness and practicality that used to gain in strength and numbers during 11th hour negoiations.  According to Ken Berger:

Despite the grim outlook of potentially lengthy and costly lawsuits, there are strong indications that NBA officials and attorneys representing the players want to take one more shot at reaching a settlement before the possibility of having close to a full season is devoured by the legal process.

Berger goes on to examine the roadblocks, competing agendas and the calender’s turning pages. Compounding the difficulty of the trick, is the widely held belief that the opposing lead counsels haven’t actually spoken to each other yet. So, is it all an illusion?

Having been burned time and again, most of the wagging heads have opined that a resolution isn’t yet feasible, that it will take considerable pain and suffering and only then will the players cave, only then will they agree to a terrible deal. They'll eventually play again but there will have been irreparable harm done to the game itself.

Consider the notion of "they will agree to a terrible deal.". There is no union, there is no collective bargaining agreement, there is no mechanism currently in place by which a collective body can agree to anything by a majority vote. And, forget the notion of owners signing players individually - it will not happen. There is too much legal jeopardy with an anti-trust suit pending.

For quite some time, the players and their union, offered up the willingness to negotiate and to make meaningful concessions. The owners offered the willingness to accept concessions and the feeling that enough was never enough, and that they alone, held the power to ultimately say yes or no. Their teams, their arenas, their network contracts, their players.

Finally, there’s a formidable third party in the house - the legal system. The NBA is represented by Paul Clement, the former solicitor general under George W. Bush. Clement has argued before the Supreme Court, 54 times. The players have David Boies on their side, the guy who brought Microsoft to its knees, aka Corporate America’s No. 1 hired gun. He also may be as Henry Abbott writes, the calmest voice in the room right now. These guys are at the top of their games and to be honest, they've got bigger ideological fish to fry than the NBA. Some cases you want before the Supreme Court, some you just want to settle.

I can’t see this going to trial. It’s just way too much time, money and bother. The presence of these legal giants provides ample cover for both parties to come to an agreement - they simply shrug and say, "we got the best advice in the country, it’s business, not personal. We’re taking the deal."   In other words, Boies trumps Stern & Clement trumps Kessler. And in the end, the final agreement, apart from a few bells and bows, probably won't look much different than the one left on the table.

And so, after months of bleak imagery, after writing that it’s all about union busting, after dystopian morass and avarice, bloodletting and the screaming death spiral, I’m flipping on a dime. I think there will be a season, that a relatively speedy legal settlement (costly commissions attached of course) will ultimately allow a modicum of normalcy to return. Or as a famous television lawyer was fond of saying, "bygones".

When it’s over, so they say, it’ll rain a sunny day. I know, shinin’ down like water.


  1. Interesting! Well, I look forward to hearing you be able to say "I told you so" in the very near future. You make it sound so possible!

  2. Well, we may never know how much the threat of trial played into it, but it looks like we've got our season back! "Told you so!"