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The Collective Bargaining Agreement: The Proposals

NOTE: This is the sixth 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.

As the League and Players Association formally meet for the second time, the horse-trading is set to begin. What does each side need, and what will they pay for it? What will each side refuse to give, and what will they pay for that refusal? It starts with package proposals, presented with eloquent, detailed, powerful explanations — explanations that end up being mostly meaningless. 

The Chief Negotiators of each team have likely discussed which side will make the first package proposal. If they cannot agree on that, negotiations are going to take a really long time. Let’s assume that the League makes the first package proposal, and each side started with twenty initial proposals. Let the winnowing process begin.

The League’s Chief Negotiator will hand out copies of its package to the Players Association’s Chief Negotiator. There will be one copy for each bargaining team member. If the League negotiator’s don’t already have copies, they will get one as well. As the Chief Negotiator distributes copies to the team, Players Association negotiators feel their hearts race. What will the League demand? Smart League negotiating team members will study the Players Association reps as they first see the package. This would be a good time for the League to have Johnny Chan or Doyle Brunson, on their team, because it is time to study body language. As each rep reads the proposals, do they think they’ve been dealt a pair of aces or Three/Seven off-suit. Eye rolls, shrugs, smirks, smiles, a clearing of the throat, leaning back in the chair. The League needs this instant information–how reasonable do the reps think the package is? What team members seem open, which are appalled, and which are stone-faced. 

The League should know by this point who is real Player leader–who will the team look to for guidance? What is that person’s reaction? The people appalled, how influential are they on the rest of the team? All this must be digested seconds after the proposals are distributed. Smart and experienced negotiators will do nothing except write their initials and date on the top of each piece of paper so that they can keep track of each proposal, when it was made, and make sure they don’t lose their copy in the flurry of paper exchanges.

The League’s Chief Negotiator will now go over the proposals, and counter-proposals, one by one. What it means, and why it’s necessary. The Chief Negotiator may drop hints that there is some flexibility about a particular proposal (“We’d like to get …”), or lack thereof (“I can’t see us getting a deal without…”). But it may be too early in the process to drop these hints in this forum. As each proposal is reviewed, the body language game continues. The Chief Negotiator has tried to stress poker faces to the team members, but there can be lapses in the heat of negotiations. A favorite moment is when a Chief Negotiator receives proposals from the other side, and hears somebody on his or her team say, “Well, that sounds reasonable”–there goes negotiating power!

A disciplined negotiating team will understand that roles are defined, and only the Chief Negotiator (or some other person so-designated) should respond to the package. That Chief Negotiator will probe the meaning of the proposals, the justification and the real reason for the proposal. Most proposals are attempts to address an imperfect current situation out the problem and determine if there is another way to solve that problem that is less taxing to your “side.” This probing can be the secret to resolving disputes in the face of seeming intractability. 

This strategy assumes that the goal at this point is to move towards an agreement. That is not always the goal for the Chief Negotiator, who must play to two audiences — the other side, and the bargaining team that he or she represents. The Chief Negotiator must push the other side, challenge the other side, and sometimes even try to charm the other side to get as much from it as possible. But, there will come a time when the other side has moved as much as it is willing, and your own side must move. These are the hardest parts of negotiation, and it is critical that the Chief Negotiator has established enough credibility with the team to push them without the team losing faith. Towards this end, the Chief Negotiator may take the moment early in negotiations (and later, as well) to feign outrage, or express amazement, at the other side’s audacity. Such a performance may be critical to a future deal — and an experienced negotiator will understand when on the receiving end of such tirades. It is part of the dance towards a deal.

The initial sparring is over, and the Players Association utters that word again: “Caucus.” Each side breaks into a different room, and the Association reps roll up their sleeves to go through the package. They determine does the package warrant a response, or is it so outrageous that no counter-offer should be given (a drastic step, but a powerful statement). Are any parts of the package acceptable, with additional Association proposals being accepted, or League proposals being rejected? A counter-package is created that will either be delivered orally or in writing (depending on the technology available at the bargaining site). This caucus can be short, as little as15 minutes, or can take well over an hour.

When the caucus is over, word will be sent to the League that it is time to reconvene. The parties will join each other in the room, and the Players Association Chief Negotiator will lay out the counter. The process will now reverse, with the Association studying the reactions of League reps, some give and take, and finally a League request for a caucus to discuss the counter. The process will go back and forth, until the parties decide to end the session, and prepare to pick a date for the next negotiation (if that has not already happened). After this meeting, there will probably be another internal team meeting prior to the next bargaining session.

After the meeting, the bargaining team will likely linger to discuss the session, and perhaps even have a de-briefing dinner. Those same questions will be briefly discussed about the acceptability of proposals, but now the team must be prepared to make real decisions about what happens outside the bargaining room A deal does not get made because of the way proposals are made, preferred, or defended. A deal does not get made because one side proves itself to be “right,” and the other proven to be “wrong.” No, a deal gets made for wholly different reasons — 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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