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Wednesday, November 16, 2011
The race to look reasonable

By Henry Abbott

David Boies
Patrick McDermott/Getty Images Sport
There is only one calm voice in the NBA labor wars right now, and it belongs to David Boies.

David Stern can, at times, be a conciliatory and thoughtful kind of guy. He can play the reasonable card when he chooses to.

But he didn't get where he is by being Mr. Nice Guy. He's forever war-ready. And Stern's in war mode now, with all his talk of "nuclear winter," his snarky jabs at the union's "infinite wisdom," and saying the lawyers will be "guaranteed years of litigation."

If he were trying to appear open-minded, the opportunity is there. For instance, Stern might consider thanking the players for offering to help solve the financial problems they didn't create, while adding a pretty please for help with the few little system things his owners really feel they need.

These talks began with the league asking players to give up income, at the height of the league's popularity, to fill a financial hole created by an explosion in non-player expenses. The players didn't create the financial trouble, in other words, but they ought to fix it. Amazingly, the players went along, eventually offering a 12 percent pay cut, worth hundreds of millions a year. That the players wanted to nevertheless cling to the key aspects of their job security, and the market power of free agency, may be problematic for Stern. But it hardly makes the players unreasonable.

Instead Stern insults the intelligence of any player who'd walk away from the NBA, even releasing, over the weekend, a nifty little league propaganda video with a dizzyingly one-sided take on the league's last offer.

The war talk was handy when his biggest challenge was proving his toughness to hardline owners and trying to inspire a sense of urgency with ultimatums.

But it's not so handy with one of Stern's new tasks, which is to convince a judge, and the public, that he leads the more reasonable party in this dispute.

Takes two to tango

If Stern is especially agitated these days, he may well have simply met the mood of the players' attorney Jeffrey Kessler, who carries himself like a prize-fighter. One of his key skills in these talks is that he can match the NBA in endless hours of hardcore negotiating. He was born to argue, and indeed only seems truly at ease only when the rhetoric is ramping up. (That's him, in the red tie above, in what is not an entirely atypical moment of facial muscles battling to constrain disdain.)

Ten days ago, after yet another round of failed talks Derek Fisher addressed reporters very late at night, at a podium arranged by the union. Fisher was his usual measured, cool self, and said little that would be quoted the next day. As soon as the press conference ended, however, Kessler sprung to life before the cameras with a vociferous speech:
The proposal that this a robust deal to 51 [percent] is a fraud! They came in here with a prearranged plan to try to strong-arm the players. ... These are professional basketball players. The finest athletes in the world. How do you think they feel about threats? How do you think they feel about efforts to intimidate them? Who negotiates in good faith by saying it's this proposal or 47 percent, we'll make it worse. That's where we are. It's not good faith to the fans, it's not good faith to the players, the players will not be intimidated. ... It's not happening.

It was quite some time before Kessler stopped talking, and he did not grow more conciliatory.

Before the judge

Now, however, there's a new concern. The court enters the picture. If this gets as far a judge, one thing he or she will do -- simplified to the point of absurdity -- is help to figure out who the greedy bullies are who are overreaching and keeping this big business shut down. That means these various Sterns and Kesslers will be viewed with a fresh set of eyes. A judge's eyes. For the first time in a while there will be tremendous value in appearing reasonable and deal-ready.

It will also mean demonstrating that both sides have been bargaining in good faith.

Enter David Boies. Surely a huge part of his role on behalf of the players is to provide a name that commands respect, as well as expert legal advice. But he also comes with a big dose of something these talks have long lacked: Calmness. Hearing him talk -- with the occasional smile, plain English, and grandfatherly sincerity, it's stunningly evident how little warmth there has been from the other leaders of the process. Even when Boies is making his scariest comments he sounds like a nice guy trying to find a reasonable solution.

(Interestingly, there's a lawyer vs. lawyer gay marriage subtext to this case. Boies has argued prominently for the right of gay and lesbian people to marry. The NBA's outside council Paul Clement is not just on the other side of that issue, but quit his job earlier this year strictly to keep on a case fighting to uphold a ban on gay marriage.)

Stern and Kessler have put so much energy into tearing each other apart, it'll be a cinch for either one to prove the other is unreasonable. But neither is ready to win the "most stable in class" award. For NBA fans, the presence of a cool head could be the silver lining in the cloud of a shattered negotiation process.

It's also a tactical concern for the owner, because the most reasonable-appearing guy in the room, Boies, works for the players.

A mysterious rhetorical absence

There is a mystery.

Stern could not have been more clear. Accept the 50 percent offer the league had on the table, or the league's new position would be the inflammatory 47 percent of BRI and a hard cap. He put that scary offer to the union twice. Billy Hunter rejected that 50 percent offer and yet ... Stern has said all kinds of mean things but has not yet said that the league has made the promised shift to 47.

The league, on this issue, has been silent, despite many requests for clarity.

Why? Some guesses:
In politics, the victory typically goes to the candidate who most convincingly takes control not of the right or the left, but of the center. That's the game these lawyers -- and Stern, Kessler, Clement etc. are all lawyers -- are playing now.

In the race to appear reasonable, the early favorite is Boies.