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The Collective Bargaining Agreement: Leverage

NOTE: This is the seventh 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.

In The Untouchables, Robert DeNiro’s Al Capone mused, “you can get further with a kind word and a gun, than you can with just a kind word.”   With apologies to the renamed professional basketball team representing Washington, D.C., these words sum up the first, second and last rules of negotiation: Who’s got who by the what?

The League does not agree to give the players fifty percent of Basketball Related Income because it is the right thing to do:  it does so because the Players Association forces it to. The Players Association does not agree to extra playoff games in the early rounds because of the soundness of the League’s explanation:  it agrees because it must.

Rocky Balboa and Apollo Creed step from the corners at the bell, and walk towards the center of the ring.  Perhaps they touch gloves, perhaps not. They eye each other, they circle each other. A jab paws out, and is deflected.  Another, and another. They test each other, test reactions, speed and tendencies. When one is comfortable, the fight starts, and when it ends one of them has their hand raised.

Such is negotiation.  The early sessions are the circling, the pawing, the testing.  Some light work is done — some of the “low-hanging fruit” is resolved.  These are the easy issues, that can bring a benefit to one side with little or no cost to the other.  They can get stripped away quickly after a couple of sessions, or sometimes it takes years. Eventually the teams are faced with the trench warfare of negotiation.  Both sides locked in, neither willing to move. Skilled negotiators can move their own side, as well as the other, towards a deal, but there will be stalls.  

At these times, the two bargaining teams try to force the other into “must” decisions.  “You really want this proposal (higher percentage of BRI), so you must agree to our proposal (more playoff games).”  Or, “You really want us to withdraw this proposal (shorten the schedule), so you must agree to withdraw your proposal (increase in requirements for pension vesting).”  Critically, when one party invokes a must, the other party must believe them–otherwise, no deal.  For that purpose, each chief negotiator and bargaining team must protect their credibility.

Such horsetrading will eliminate proposals, but there will still be a gap between the negotiating teams. Each team will then take a deep breath, convene as a group, and examine BATNA and WATNA–Best Alternative To Negotiated Agreement and Worst Alternative To Negotiated Agreement, respectively.

Each bargaining team must assess:  “What happens if we don’t have a deal?” The first examination requires BATNA analysis.  The collective bargaining agreement expires this coming June 30–what can the NBPA realistically hope can happen as a best case scenario?  The League continues to pay NBPA members as negotiations continue? Free agency goes forward under the old rules? From the League perspective, what’s the BATNA:  Is it the same thing? Does the League maintain revenue streams? When does it maintain them until, and do teams avoid costs (because players are not getting paid) during that period?

Conversely, what are the WATNA:  the worst results to no a negotiated agreement? The players lose their income; medical insurance; pension payments.  Teams lose revenue streams, but maintain operating expenses, from non-NBPA staff to real estate costs. Are there cash-strapped teams that will go bankrupt?

If the BATNA, and especially WATNA, between the League and NBPA are not commensurate, there will continue to be distance between the parties preventing an agreement.  The team with the better WATNA will be more intransigent in future negotiations, and the other side will need to seek compromise.

The distance between the parties might be a small gap or a large chasm — either way, it must be closed.  As stated in the last article, brilliant arguments will not close that gap.  Something else must make that happen:  outside forces. These outside sources can be things such as public sentiment, expense obligations by either side, or revenue streams by either side.  This is where the next wrangling takes place in labor negotiations–outside the negotiating room.

The League will seek to drive the public discussion through a public relations campaign; the NBPA, the same.  One side might promise to pay stadium vendors during a work stoppage–to gather public support. The other might do a media blitz — if you have a podcast with a following, this is a great time to find guests!  The parties might threaten, or even commence, litigation against the other, claiming unfair bargaining, or other improprieties. And, of course, a strike or lockout.

A strike is a refusal by a labor union to continue working.  Private sector strikes (like those that involve sports leagues) are generally protected protected by federal law, and are intended to pressure the League/employer to meet the union’s demands.  Both the type and timing of strikes are important. The two most common strikes are economic  strikes and unfair labor practice strikes. 

If a strike is an effort to seek improved economic conditions, it is called an economic strike.  During economic strikes, an employer may hire replacement workers, and must offer striking workers their jobs back at the end of the strike only when there are openings.  This draconian language is often (but not always) deemed moot when there is ultimately a settlement, because a condition of settlement is often (but not always) reinstatement of retired workers.  

A strike that takes place in protest of an employer’s unfair labor practice is treated differently. Absent serious misconduct, these striking workers are fully entitled to return to work upon the cessation of the strike.  

A labor organization may strike during the term of a contract — unless the contract contains no-strike language.  In such case, economic strikes are not protected by federal law, but unfair labor practice strikes do retain protection.

A labor organization initiating an economic strike at the end of a contract term must follow certain rules prior to striking. These rules are set out in the National Labor Relations Act. Failure to follow these rules jeopardizes worker protections under the act.  This act also sets forth the rules that an employer has to follow prior to cancelling the contract–what is called a lockout. A lockout is a tool used by employers to sever the relationship in much the same way as a strike.  Either way, the union members stop working and stop getting paid.

Public relations campaigns, informational picketing, strikes and lockouts are the escalating tools used by each side.  Labor stands at one side of the gap, and management stands on the other, with the two connected by a rope. Labor uses its tools to pull management to its side of the gap, and management tries to do the same.  Rarely does one side pull the other the whole way, but the more power one side has, the closer to its position the final deal will be. Because the “pulled” side will realize that it must make a deal.

Sometimes, the sides are not individually or collectively strong enough to pull each other to a meeting point.  The gap cannot get closed. What happens next? The subject of our next article: mediation.

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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