Stern und Drang

Last week in his first Super Bowl press conference, rookie NFL players union head DeMaurice Smith tackled the league's looming labor strife head-on. He charged that with the current collective bargaining agreement (CBA) set to expire in 19 months, NFL commissioner Roger Goodell is using dubious arithmetic to cry poor. He charged that the latest offer to the players would reduce their share to 41 percent of applied revenues from some 59 percent -- in effect, cutting their pay by 18 percent. He also charged that owners have written "lockout language" into TV deals that will provide for them even if games aren't played. Asked the likelihood of a lockout, Smith said, flatly: "On a scale of 1 to 10, it's a 14."

Over at the NBA, where the CBA expires after the 2010-'11 season, ownership is taking an even tougher stance, one that would fundamentally change the salary structure and annihilate the union. Commissioner David Stern appears intent on achieving a hard salary cap. No more flexibility, no more Bird exception, no more fully guaranteed contracts. The NBA wants a reduction of the total salaries paid to players by 30 to 40 percent. The goal is to make the terms of a new deal retroactive, which means a huge claw-back of player salaries. Faced with this potential sturm und drang, the National Basketball Players Association has responded with a silence that has been almost ear-splitting. columnist Ken Berger observes that Stern and "the owners want to go farther than changing the rules," they want to fatten their wallets in direct proportion to the thinning of the players' wads. And if the players don't like it, one team executive suggested that 'LeBron can play football,' and Dwayne 'Wade can be a fashion model.'" If you think this is no big deal, consider this: Normally players get about 57 percent of what's called "basketball-related income", roughly $3.6 billion. Stern wants to reduce this percentage to well below half, and for owners to deduct expenses off the top of revenues -- draining nearly a billion dollars from the player salary pool.

Unlike Goodell, Stern doesn't talk of shared sacrifice. Nor has he made conciliatory gestures to the players. Goodell speaks of making "the pie grow" so that "everyone benefits" -- players and owners alike. Stern has adopted a My-Way-Or-The-Highway approach: one NBA executive calls the league's latest proposal "a photocopy of Stern's middle finger." In light of this scorched earth policy, you might expect the union to refuse to engage in talks. Instead, it has issued a milquetoast statement about the need to study the league's demands and discuss them with the players. Discuss what exactly? How the players would prefer to get screwed?

Since the mid 90's, the union has caved on pretty much every demand the league has made: A rookie wage scale, a maximum salary cap, a luxury tax, even an escrow fund. During that time, the league hasn't made a single sacrifice. Stern complains that "the expenses we've taken under the existing collective bargaining agreement are simply too high to allow the majority of our teams to be profitable." Yet there is no talk among owners of revenue sharing or reducing the salaries of coaches or NBA suits. The burden of redistributing what Stern calls an "imbalance" falls entirely on the players. While the players are being asked to cover the cost of mismanagement, the owners scurry to protect their profits, which are often private and hidden. Which is why their impending showdown is shaping up as the most pivotal NBA labor confrontation since the Oscar Robinson lawsuit, which spanned six years and established free agency, a concept that appears to be going the way of the two-handed set shot.

In 1995 I helped spearhead an effort to decertify the union, whose executive director, Simon Gourdine, was making back-room deals with the league without either the advice or consent of the players. Though Gourdine survived the challenge, by the next summer a group of players unhappy with his handling of negotiations pressured the union's executive board to fire him, which they did by a vote of 16-0. During the lockout of 1998, things got so heated that the players again considered decertifying their union, which would have been followed by an antitrust suit, the so-called "nuclear" option -- abandoning the bargaining process for a three-to- five-year court battle. A handful of player agents openly questioned the union's ability to negotiate. That go-round I argued that agents and players should stay the course and support the union. I argued that we all needed to band together behind Billy Hunter, the union's new leader, and give him a chance to prove himself. In the end, the players backed off their threat and the union prevailed.

Twelve years later they face the same underlying issue, one that must be weighed carefully: Are they better off allowing the union to represent them "collectively" in CBA talks, or facing down the owners on their own? Is the playing field too lopsided? Is the final result already rigged? Would NBA players simply relive the NHL work stoppage of 2004-'05, which resulted in the cancellation of an entire hockey season. In that so-called negotiation, player pay shrunk by 25 percent while owners got a salary cap and, most importantly, a rise in franchise values, the prime reason they forced the lockout in the first place. The league also got rid of Bob Goodenow, the once-swaggering head of the players association.

Given the NBA's hard-line stance, the players must decide whether they have the skills and the resolve to defend their basket. Will young marquee players like LeBron James, Dwayne Wade, Chris Paul and Kevin Durant form a united front? If they don't, the owners will score at will. Which begs the question: Has the union jumped the shark? If so, why even have one? Major league baseball players have a long history of successful collective action, basketball players, a strong sense of individualism. The awful truth: NBA players would be in a stronger position without a union. Current salary restrictions would be illegal, and free-agents could shop around for teams in a genuinely unrestricted market.

The countervailing argument is that marginal players would fare worse under such a system. But take note that recent rule changes that were supposed to help mid and lower-paid players clearly have not. In fact, there has been an opposite effect. More and more players are playing for the minimum salary. Under the proposed hard cap, those on the bottom would be even worse off. The harder the cap, the more money that top players will siphon off their less-talented teammates. Given that reality, it's hard to argue against a free market with true free agency.

I propose that labor talks should be suspended indefinitely to allow for a thorough discussion among the players and their union. The union should seek outside expert advice of labor lawyers, antitrust attorneys, and agents, and then openly discuss any recommendations. We must stop the further erosion of players' rights once and for all.