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The Collective Bargaining Agreement: Team Meeting

NOTE: This is the fifth in a series of articles about collective bargaining in the NBA. We often hear about the NBA’s Collective Bargaining Agreement when issues arise with contracts, trades, lockouts, strikes, and player disciplinary proceedings. This series seeks to enhance the understanding of the CBA by providing context to the creation and implementation of the governing document between the NBA and the National Basketball Players Association.

The Players’ Association negotiators reconvene as a team shortly after the initial session.  The Chief Negotiator will choreograph this meeting, eliciting the opinions of those reluctant to speak, while curtailing the opinions of those too eager to speak.  Every person in the room is annoyed, and their annoyance level is inversely proportional to the number of times they’ve previously been on a negotiation team.

Ideally, the bargaining team has firmly established rules and protocol in preparation for this meeting.  Each bargaining team member has been assigned areas of expertise, and group norms have been established (preferably, the norms have been written down and signed by all).  The bargaining team has prepared for the League’s proposals, is ready to respond to each one, and is convening in a cool, calm and collected manner. Unfortunately, in the history of collective bargaining, it has played out this way one time–and the only documentation from that session indicates that the chief negotiator walked on water prior to the session, and fed an arena full of people afterwards with only seven loaves of bread and some fish.

What actually happens next is the Chief Negotiator gauges the level of irritation of team members.  Before the meeting has officially convened, most of the team members have hit their full stride complaining about the League’s outrageous proposals (interestingly, at least one team member seems to care about nothing except ordering lunch or dinner).  Knowing the team, the Chief will let the venting continue to the point where a productive conversation can begin. Then, the meeting really starts.

The bargaining team will go over each proposal one at a time.  Some will be declared a “hard no.” Others will get moved into the “probably yes” category.  Those categories tend to be lined up the fastest. Next, the rest are grouped into the, “yes, if’s.”  

Part of this process should be a deep dive into how important each proposal is for the League.  For example, the League might propose that any player can be directed to go on a goodwill trip once every three years.  The players’ negotiating team might start with a categorical “No,” but…what if the player gets a bonus of 1% salary payment for each trip?  Is it important enough for the league to make that payment? Some things will stay “hard no’s,” but the Chief Negotiator’s job is to determine if there is any wiggle room from the team, and to determine if there is some price that could be extracted from the League for agreement to that proposalto move it to a “yes, if.”  

Similarly, the “probably yes” list  should be evaluated to determine the importance to the League.  Even if the Players Association will agree, they need to know what the League will pay in the context of a package proposal.

Finally, the heavy lifting happens with the “yes, ifs.”  The team will come up with a short, sub-list of League proposals it will accept (or accept variations of) in exchange for the League yielding to player demands.  The bargaining team must determine what it will accept, then determine what it will propose. Key here is knowing how the other side bargains. If the League proposes selling something for a $1.00, and the team is willing to pay $0.90, do you counter $0.90, or $0.80?  The initial reaction is to go low, and meet in the middle, but that dance is not always practical in the process when there are dozens of things to be negotiated. But, if the other side expects that dynamic, then proposing $0.90 will suggest to the League that you would be happy with $0.95.  In the beginning of negotiations, there is less danger of starting too low and ending in the middle. As the midnight clock approaches the end of negotiations, these decisions get more difficult. However, the key is ALWAYS to know the other side, and have confidence in your knowledge of the bargaining relationship (or lack thereof).  

Once this calculus is performed, the bargaining team will put together a bargaining “package.”  Of the League’s 25 proposals, the Players Association will accept versions of five of them (for example), if the League will accept these versions of six of our proposals.  That package will be proposed, with the caveat that even if there is agreement on this package for the purposes of moving forward in negotiation, nothing is binding until there is complete acceptance by both bargaining teams of all the proposals.  The bargaining team will decide whether to propose this package at the next meeting. Or will it wait for the League to make a package?  

Finally, the bargaining team will determine what happens next — outside of bargaining.  Will it prepare a report for union leadership? For the general membership? How detailed will the reports be?  Those outside the room want specifics. Letting specifics outside the bargaining team, however, could reduce the team’s flexibility to negotiate.  Those pros and cons must be considered. If the initial League proposals are moderately reasonable, it might be best to keep specifics close to the vest to move negotiations forward. If the proposals are draconian, there might be value in sharing them with membership to begin a member-mobilization and public relations campaign.  Those decisions will be based on what the bargaining team expects to happen at the next negotiation session — the subject of our next article.

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Ken DeStefano
Ken DeStefano is an attorney in New York with over 15 years experience in the field of labor law and collective bargaining.

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