Excerpts from an interview Sunday with Michael McCann, director of the Vermont Sports Law Institute and legal analyst for NBA TV and SI.com.
McCann on his reaction to the NBA's ultimatum: We're going to see pressure during the next few days. I would expect comments from some players or tweets saying, 'Let's at least have a chance to vote on this as a whole,' pressuring Derek [Fisher] to at least authorize a vote. I don't think they're going to do that. He made it clear last night that the Players Association is not going to do anything, or at least not accept the offer that the NBA has made. Jeffery Kessler's comments I thought were interesting, because he was sort of signaling that he's going to say, 'Well, look: This is bad-faith bargaining.' I don't know if a court's actually going to find that persuasive. This is just how negotiations work. … I bet we'll see some comments suggesting the players aren't entirely unified. But at this point it looks like they're going to go to Wednesday and they'll reject the offer. And then the players will have to decide if they want to decertify or try to start negotiations again and see if they're going to get to a better point. But clearly more games are going to be canceled.
Highly unlikely the NBPA accepts either the current offer or a post-deadline 53-47 BRI split favoring owners: That's right. And then they'd have to begin with counter offers and having negotiations start, if not from scratch, from an earlier point than where they are now in hopes of reaching some kind of deal. But I think the prospects of a deal after Wednesday go down. The owners have the leverage because they're going to be able to cancel games and paychecks will be irrevocably lost. If no deal's reached by Wednesday, we're going to see decertification become talked about more seriously and there'll be more support for it. But that's a route that escalates the tension. Maybe ultimately it helps them. But the likelihood of having a season goes down. It's not lost, but it goes down if decertification [happens].
If the NBPA decertifies, a significantly shortened season is almost guaranteed: That's right. Best-case scenario, we're looking at an abbreviated season. And it will be a mess. It'll be a lot of games back-to-back. Teams that are older are going to be damaged. Teams that are younger are probably going to have a little bit of an advantage. But I think it won't be a satisfying season and I think fans won't like that it's a season with an asterisk next to it. It's a lot better than no season. But there'll be a loss. Attendance I bet will be down, TV ratings will be down — all the things that happened in 98 and '99 will prove true again, and that's not going to help anyone. Particularly if they ultimately agree on a BRI arrangement that is contingent at least in part on revenue. The profitability of this league will go down, certainly if there's no season and if there's a shortened season that's seen as an asterisk.
Owners' and players' negotiating tactics: For Stern to be able to get the owners to compromise and agreeing with a system that's clearly not exactly what they want, you're going to have some owners thinking, 'OK, this is it. You know what? We don't love what we're offering them, but if they go along with it we get a season, we move on' — neither side really claims victory, at least to the extent they want. But if you get past Wednesday you're going to see owners saying, 'That's it. We've had enough. If this wasn't good enough then nothing we offer's going to be good enough.'
The players are in a tough position. They're clearly going to take a loss in terms of BRI. That's been known since the beginning. And they're really fighting to make the loss as minimal as possible. They were expecting the loss wasn't going to be as significant as it seems to be heading towards. Then there's the complexity and the notion of decertification that is a wrinkle. It's attractive on some level because it's a weapon, but it also complicates some things. It leaves some players who are dissatisfied with the process to start talking about it and that can cause fraying of the unity. The players definitely have a harder position to bargain from. And also, look, there are 400 and whatever [players] — you just have a lot more voices. And you also have the roll of agents. Owners have staff but they don't have agents. There's just more cooks in the kitchen.
Clarifying NBA's federal lawsuit, which requests that player contracts be made void and unenforceable if decertification is legally backed: The wording of the complaint I don't think captures — I don't think if they decertify that automatically contracts are voided. I think what the league wants to say is, if they decertify we have the right to void, which we may or may not exercise. … I've talked to a bunch of people and that's what I hear. It's a novel argument. It's not necessarily something that's going to [happen]. … The players will challenge any voiding of contracts. … It'll just complicate everything.
Brian T. Smith
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