This Week In The Lockout: Is Fish Taking It '2 Easy' On Stern?

For NBA players and their miserable fans, it's hard to look back on the past seven days and find anything resembling a positive development. The week began with a negotiating session in New York that went nowhere. After the roughly three-hour meeting on Monday, both David Stern and Billy Hunter confirmed that the two sides are exactly as far apart as they were 30 days prior, when the lockout began. The next day, owners ramped up their campaign of aggression, suing the players' union in federal court and filing a complaint with the National Labor Relations Board. By midweek the ever cheerful Hunter was telling the world that if he had to guess, the entire 2011-12 season will likely be canceled. But otherwise you liked the play, Mrs. Lincoln?

Meanwhile, it's increasingly unclear whether the union has a battle plan beyond, as one agent put it, "hoping David Stern wakes up one morning in a good mood." Derek Fisher remains opposed to decertifying the union and is still trying to play nice. A little too nice, in the eyes of Adrian Wojnarowski, who wondered aloud this week whether Fish is pulling punches in hopes of staying in Stern's good graces. The movement of players to foreign leagues, viewed as one of the few ways the union hit strike back at the owners, has yet to gain momentum. This was the week the Kobe Bryant-Besiktas rumors were badly discredited, and no A-list stars have yet joined Deron Williams in signing with overseas clubs. Five weeks into this mess, in other words, the players look passive and slightly adrift.

Let's break these topics down one by one and see if there's any positive spin to put on them. (Hint: no not really.)

Negotiations
The meeting on Monday was the first involving principals since the lockout started. It seems the parties aren't going to wait another 30 days to get in a room together. Word is, they're trying to schedule two or three more sessions this month, which I suppose is superficially encouraging. Talking is better than not talking, of course, but you know how everyone was saying not to expect anything out of Monday's get-together? You'll hear that same perky optimism in advance of any additional August meetings, and for good reason. The owners are "negotiating" in the same way Darth Vader was negotiating on Cloud City. Someone's getting dipped in carbonite, someone's losing a hand, and neither of these someones is David Stern.


The Legal Fight
I'll try to explain this part in the quickest, least boring way I can. Here goes....

  • The players have the option of decertifying the union. This means the union would cease to function as the negotiating vehicle for NBA players as a group. Why would they decertify? To sue the owners under the federal antitrust laws. There's an exemption from antitrust law for collective-bargaining relationships, but if the union goes away, the players could seek remedies under the antitrust laws that aren't available to them now. For instance, they could ask the federal court to rule that the lockout is an illegal act of collusion and to slam the owners' pocketbook with a tasty damages award.
  • The owners claim that in negotiations, the players have repeatedly brought up the decertification option and that threats of this kind amount to bad-faith bargaining. On Tuesday they filed their complaint with the NLRB, arguing exactly that. They also filed a lawsuit with a federal court in New York that's basically a preemptive first strike on this issue. The suit asks the court to rule that the lockout is not a violation of antitrust laws and that if the union does decertify, the league can void all player contracts. I'm not an antitrust lawyer (or am I...?), but that second line of argument seems a lot shakier than the first.
  • Why would the owners sue before decertification? So they can choose their battlefield. They want the legal fight to play out in New York, which they think is a more management-friendly venue than say, Minnesota, where the NFL players' union had some litigation success.

The Players' Strategy
The union will move to have the lawsuit dismissed - no surprise there. The real question is whether decertification is in the cards. Fish says no, or at least not yet. His hope is that in time, a split will open up between hard-line owners of small-market teams and more reasonable, conciliatory owners of big-market teams. As Ken Berger, aka the Berger King, puts it:

[T]here is something else - something more tangible than the faraway notion of an NLRB complaint and federal injunction - that could stop this lockout in its tracks. It's called an awakening by the owners who are not driving the NBA down the path of pointless non-bargaining. The best hope for salvaging the full season will come from owners who stand to lose by shutting down the league.

"There will be a tipping point where owners will start turning on owners," [an unnamed] team executive said. "I don't know if they're as solid as the players are. Some of those new owners think they have a lot of new solutions, but a lot of them are not invested in the league the way some of the other owners are. I don't know if Jerry Buss or Robert Sarver will ever see eye to eye on anything."

You see, it isn't a big deal to Donald Sterling if there's no 2011-12 season. It's a huge deal to Buss - and to James Dolan, Jerry Reinsdorf, Micky Arison and to a degree, Peter Holt, the chairman of the owners' labor relations committee. At some point, will the economic reality of nuking $4 billion in revenues in a rapidly (again) deteriorating economy make Wyc Grousbeck stop acting like the Celtics play in Little Rock?

That's an important point, but in the meantime some are wondering why the players' union isn't hitting back more forcefully. Along these lines, Woj had salty words this week for President Fish:

Why is the union so afraid of David Stern?

The union talks about the owners, and it never registers with the public. The owners are a vague, fairly anonymous cast of characters who elicit no loathing, no emotion. . . . Stern is the figure who most fans are dubious over, from his iron-fist control of officiating, to his complicity in hustling the Sonics out of Seattle, to his arrogance of ruling the league like a small-town mayor without term limits. . . .

Everyone is so scared of Stern. They want to work in the league again, and know he has the power to crush them. This is part of the reason so many are watching Players Association president Derek Fisher closely now. Will he ever come out swinging at Stern? After all, from owners to team executives to agents, everyone knows the dirty little secret of that job. Play ball with Stern in labor talks, and history shows the league will take care of you.

Bob Lanier has been on scholarship as an NBA ambassador for two decades. Isiah Thomas was given part ownership and the general manager's job with the expansion Toronto Raptors. When that imploded, Thomas landed a league-sanctioned analyst's job for NBC. Lanier and Thomas were smart and tough in processes, but Stern's message is hard to miss. Eventually, you'll all work for us again.

So, yes, everyone waits on Fisher now. He has big aspirations post-basketball, big possibilities. Stern knows it, too. It's no accident that Stern's deputy, Adam Silver, fawns over Fisher in stories. Oh, it's so great to have him across the negotiating table. Yes, that's just what the union rank and file should want to hear.

Will Fisher ever try throwing haymakers with the commissioner? He's the consummate politician, but reason will get the union nowhere with these owners. The NBA doesn't want negotiation, it wants capitulation. That's why Monday's talks were a waste of time, why nothing will happen until November and December when the players start missing checks. That's when these owners - whatever they pay Stern - expect him to come for the kill, come to take everything back. If the players put up a fight, there's no basketball this season. And that will be on David Stern, always and forever. There's a case to be made in public now, the case of the commissioner, and now is the time to find out whether the union has the stomach for it.

Your move, Fish.

Europe And China
This was the week for onetime Laker guards to find new employment abroad. Trey Johnson is off to Italy and Jordan Farmar to Maccabi Tel Aviv. Sasha Vujacic, you might recall, had already signed with Turkish club Anadolu Efes. No word on where Adam Morrison might be headed, though I have to assume Amsterdam is high on his list.

China is shaping up to be a problematic destination. FIBA, the governing body of world basketball, will bless the overseas movement of NBA players under contract only if their new deals contain opt-out clauses. Chinese authorities, however, are evidently unthrilled with the idea of Americans dropping into their league and then bailing as soon as the lockout ends. On Monday, Kelly Dwyer of Ball Don't Lie passed along the news that the Chinese Basketball Association is planning to introduce rules to forbid opt-out clauses and to limit each Chinese club to only one active NBA player.

Be that as it may, there are rumors the outgoing flow of NBA players is about to pick up. Yesterday NBA agent Happy Walters, who reps Amare Stoudemire among others, tweeted:

Happy2

Happy4

Jonathan Givony of Draft Express followed that up with:

givony2

As always, Fishmore will stay tuned so you don't have to.

Cat Video?
I thought you'd never ask. This week's Cat of the Week is the awesome and slightly unsettling NINJA CAT.

Stuff To Read

Players' Union Bends Under Stern's Rule (Woj, Yahoo, 8/1)
NBA Commissioner Facing Grim Battle (Bruce Arthur, National Post, 8/2)
Wake Up: Massive Legal War Figures to prolong NBA Lockout (Berger, CBS Sports, 8/2)
Soccer Player In Blue Shirt Happy (The Onion, 8/2)
NBA Lockout Lessons (Jonathan Abrams, Grantland, 8/2)
Sadly, It's Players Behaving Badly (Berger, 8/5)

Follow Dex on Twitter @dexterfishmore.

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