An Annotated Guide to a Terrible Article about the NBA Lockout

I read this article on CBS Sports about the NBA lockout. It was awful, but I thought I’d share it with you anyway. It begins like this:

This was David Stern at his best, the smartest guy in the room — just ask him — running the game with an audience of millions. This is why Stern makes whatever salary he makes, because he told the owners he would deliver for them and it was time to make good on that promise.

Ok. This is only the beginning. I’m sure at some point he’ll provide evidence of Stern’s virtuosity.

In the language of diplomacy, as Stern likes to say, he always makes good — always knows, like some of the greatest stars his league has produced, when it is time to close the deal.

Stern had to come through Thursday in the tipoff of his little media tour. It was time to stem the tide of public opinion against the owners and turn the full force of what longtime observers call “Mt. Stern” on Billy Hunter and the union. The message was clear: Once Stern erupts like this, few people and their principles will be left standing. You have a blood issue? Here’s a mop. Now go clean it up.

For really the first time in more than two years of negotiations, Stern eloquently explained the owners’ solutions for fixing the NBA and made it all sound so reasonable. His depiction of the negotiations, of the bargaining points, of the back and forth was blissfully incomplete, as his nickname, the Ommissioner, would suggest.

But this was an important moment for Stern, winning time in these negotiations. With Hunter having made the rounds on the radio a day earlier and en route to Los Angeles to update his players on the current state of their inevitable doom, Stern meticulously dismantled the union, its leadership, its bargaining points, its beliefs — everything but its women and children, and might I suggest that they remain securely hidden until this is over.

Again, this is more just saying David Stern won. It also says “David Stern explained how to fix the NBA” without getting into how he actually intends to do it.

At a time when the public, and, in fact, a federal mediator, was finally beginning to catch on to the sheer insanity and unreasonableness of the owners’ demands, Stern expertly turned the table and made it seem like it was the players who were being obstinate — the players who had placed a grenade under the 2011-12 season and pulled the pin. The public, always inclined to turn on athletes at a time like this, was this close to feeling sorry for them — this close to siding with rich guys who were getting bullied by even richer guys.

So, David Stern turned the table(s)? Made it seem like the players were being obstinate? That’s nice, I guess, but it might be more useful to know if the players were being obstinate, not if it just seemed that way. And I’m curious how the sentiment at the end is gathered–that the public was right on board with the players until this not-that-well-publicized thing happened. I’m sure.

Reporting on the “PR war” in any topic is the worst kind of journalism. It maintains a veneer of objectivity without having to actually be objective or analytical of the facts on the ground. It allows political reporters to be like “Michele Bachmann did a good job of sticking to her talking points during the debate” without acknowledging that her talking points are completely insane.

Few people really embrace NBA players for reasons that form the strands of another story for another day.

Um… do tell.

But one thing nobody likes is a blowout. Nobody likes running up the score.

Or not.

And this is where Stern, who at 69 is smack dab in the middle of the moment that will define his legacy, had better understand his real duty and responsibility as this broken negotiation limps into the arms of a federal mediator next week. His duty is not simply to win, to get what the owners — his clients — want. His greater responsibility is to get a deal and reopen his sport. Anything less, any attempt to run up the score here, will result in a defeat of dizzying, devastating proportions for everyone.

For Stern and his owners, for the players and the NBA as a whole, there is a fine line between victory and defeat. When you begin to enjoy too much the feeling of your foot on the opponent’s throat, you risk turning victory into catastrophe.

There’s such a thing in war, intelligence, law enforcement and yes, negotiation, as taking your victim alive.

Ok! Now we’re talking! This is actually about the negotiations. It implies that Stern won. How?

On one hand, Stern finally articulated owner-driven system changes that clearly would improve the product: an amnesty clause allowing teams to waive underperforming players and spread their cap hits over multiple years; preventing big-spending teams from spending even more to steal the have-nots’ free agents; and taxing teams into oblivion to shrink the payroll gap between the Lakers and Knicks of the world and the Kings and Bobcats.

Uh, I don’t know that an amnesty clause necessarily makes the game better in that it rewards all the incompetent teams that signed players to horrible contracts while punishing those who built teams judiciously. But I guess at least it’s analysis of some kind.

But Stern’s conveniently one-sided characterization of the negotiations — strongly suggesting, among other things, that a 50-50 BRI split is a foregone conclusion when, at 53 percent, the players already have surrendered more than $1 billion over six years — wasn’t even his most diabolical and significant accomplishment Thursday.

Lying about negotiations to the media isn’t a “diabolical and significant accomplishment.” It’s negotiating. Gaah.

This happened when he took aim at the union leadership and delicately pulverized every last one of them into sawdust.

Stern made sure to point out that it was Fisher who came knocking on the owners’ door during a key bargaining session Oct. 4 with the idea that both sides try to sell a 50-50 split. Stern didn’t have to answer the question about whether he was able to sell it to the owners or not, because A) he said the players came back and informed him they couldn’t before he had the chance, and B) this is the number his owners wanted all along, so no salesmanship was necessary.

Again, badmouthing the opposition in a negotiation and making it seem like you’ve already won is not some genius negotiating tactic that David Stern just now invented. Nor is threatening to cancel more games. It’s the way negotiations work.

He made sure to point out that outside counsel Jeffrey Kessler “does about 70 percent of the talking for the union,” a veiled-but-effective shot at Fisher and Hunter that will have the union in damage-control mode for days. He couldn’t resist leaving out the fact that Hunter was nowhere to be seen during the key conversations about the 50-50 split — the union’s executive director unaccounted for during the most important discussions in more than two years of negotiations.

After listening to about an hour of this Thursday, I wanted nothing more than to lay my dizzy, aching head on a pillow and could fully grasp why Fisher has emerged from every bargaining session wearing an expression of utter bewilderment. Can you imagine listening to this for seven hours a day, in person? So many devious, devastatingly subtle digs that could tear the union leadership apart; it was like watching Jordan in his prime.

How is watching a guy try to undo the last CBA he negotiated like watching Jordan in his prime? And the speculation that Stern being mean to them in some way turns the union leadership against each other is so condescending and ridiculous that it’s not really worth getting into.

But here’s the thing: Unlike Jordan, unlike the current stars of Stern’s league for whom cutthroat annihilation is part of the job description, Stern has a higher purpose here — a duty to seek common ground, not scorched Earth. He’s the master of the message, the ultimate closer, a skilled negotiator who has taken his case to a public that doesn’t know what to believe and thus will embrace the most skillfully crafted closing argument available.

WHAT? YOU WERE JUST TALKING ABOUT HOW GREAT HE IS AT BEING MEAN AND TRAMPLING THE UNION!!! I’m pretty confused about that particular segue. And again, CBS Sports guy, as a member of the media, it’s kinda your job to give the public “facts” and help them figure out what to believe. But I guess just saying “Best talker wins!” is easier.

Stern’s wax statue at Madame Tussaud’s will have a void where the heart belongs and a fork-shaped tongue. But his legacy will be equally disfigured if he doesn’t lift his foot off the players’ throats and put style points aside to achieve a victory that, while not a blowout, will be far more meaningful.

Barring federal mediator George Cohen — a former outside labor counsel for the NBPA — undressing Stern in the negotiating room next week, or barring a miracle from the National Labor Relations Board, it will be up to Stern to see reason and compromise. Just days after cutting out Hunter’s legs on radio and TV, it will be up to Stern to throw his longtime foe and negotiating partner the life raft that could save the season — and save both men’s legacies.

No. It won’t. Because Billy Hunter is his own man, and he’s allowed to reject any agreement put to him if he sees fit.

For all of Stern’s masterful manipulation Thursday,

Manipulation of you. The guy writing about how masterful Stern was. Gah.

the reality is this: the players have offered to surrender more than $1 billion of their previous salaries, have offered shorter contracts, smaller raises, more restrictions on big-market spending, and have dug in only on the issues of a technical hard salary cap and guaranteed contracts. Stern’s negotiation position has made it seem like a victory that the players have managed to preserve even that much, while somehow thwarting the owners’ quest to re-open previously signed contracts and suck money out of them, too.

We get it, David. You’re winning. You have all the leverage, and barring a legal miracle or the unrealistic notion that decertifying the union will work for the NBPA any better than it did for the NFLPA, you’re going to win. It’s reality.

Ok, we finally get to the point, which is that David Stern needs to back off a little in order to reach a deal. Cool. I’m partial to the “say what you’re going to say, say it, say what you just said,” school of argument organization, but I guess “make rambling, laudatory statements, then undo many of them” is a good strategy too.

And again, the players have made concessions–are these concessions substantive? Will they return the owners to profitability? Will they make the NBA more popular? Will more teams have a chance to compete? Is our priority to ensure the long-term health of the league or the short-term profits for either the owners or the players, and how do these concessions play into that? I guess you can answer these incredibly difficult questions on your own.

But don’t lose sight of the fine line between victory and defeat — because Hunter won’t concede in a blowout, and a blowout is a loss for everyone.

I thought it was “up to Stern to see compromise.” But isn’t it a blowout if Hunter concedes? And how is the owners getting everything they want a loss for everyone? I’m not saying it’s optimal, but it’s not a loss for everyone.

At this point, the only way to get a deal that saves the season, saves your legacy and spares your product an insurmountable PR disaster, is to negotiate one with Hunter. Keep running up the score, keep piling on, and that deal won’t be reached. The result will be economic Armageddon.

As a lawyer, and an excellent one, Stern understands that you fight as hard as you can for your client in the pursuit of unmitigated victory. But he should also know that, sometimes, you take a plea agreement. Sometimes, the certainty of a modest victory is better than the possibility of the ultimate defeat.

Send this one to the jury, David Stern, and it’s on you.

And I guess we’re implying this is one such time where nobody wants “the ultimate defeat.” (dun dun dun) However, I don’t think the plea agreement analogy works here because the whole article is about how Stern is winning in a blowout (or convincing people he’s winning in a blowout? I’m not sure which it is). Generally a lawyer in such circumstances would go to trial, right?

If you want actual expertise on the lockout, this video explains it pretty clearly.

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3 thoughts on “An Annotated Guide to a Terrible Article about the NBA Lockout

  1. BigCalBear80 says:

    I guess you won’t be getting a holiday card from Ken Berger this year!

  2. I'm Rubber, You're Glue... says:

    Ah…the vaunted “you’re so mean..I bet..I bet.. I bet your wax statue at Madame Tussaud’s has a void where the heart belongs and a fork-shaped tongue!!!!” taunt! I haven’t heard that one in awhile.

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