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The Collective Bargaining Agreement: Mediation Ends With a Deal

NOTE: This is the ninth 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.

At an NYU Law lecture, former United States Supreme Court Associate Justice Anthony M. Kennedy said, “The most important word at the most hallowed court was “five.”  Or he said something like that–it was 25 years ago, and I had yet to realize the importance of a designated note-taker. “Five,” he said,” because that’s how many justices must agree for their to be a decision.”  The self-described brilliant minds sitting in the audience were collectively struck by the blunt admission that the nation’s greatest legal minds were driven by mundane pragmatism when exploring the most sophisticated legal issues of the day. So it goes with mediation, because, from this point forward, it’s all about the votes.

There probably was not  a deal at the first mediation session.  There could have been if outside forces are driving such bargaining, but the likelihood is that the first session ended with general give and take, setting up some dates for future sessions, and parameters (length, location) of those sessions.  Mediation is often designed around a three-session schedule. Sometimes a fourth session is scheduled. If there is no deal after three sessions, the parties agree to end mediation and go the “next steps.”  

Why limit mediation to three (or four) sessions?  Because urgency causes the deal. If either party knows that it can hold out, because there will always be another mediation session, there is less incentive to move, to compromise, to concede.  Having a definitive end makes the deal.

The players’ bargaining team may have seven members (not including lawyers or professional negotiators, who don’t have an official vote).  Proposals, counter-proposals, mini-packages, and counter-mini-packages have passed back and forth. Eventually, a comprehensive proposal package will come from the owners that one or two bargaining team voters will be willing to give a thumbs up.  But the rest of the team needs convincing, and the mediator and negotiator will probe to find out how to fill that small gap. Is the problem linguistic (do the parties agree on the principle, but the voter is unhappy with the way the language is worded, or is there disagreement on how it will be interpreted if there is a change in circumstance going forward?).   Does the team member need more, or need to give the league less? Does it have to be solved with real movement, or can it be solved with linguistic manipulation?  

A counter-proposal will go back to the league negotiators, who will either agree to the revision, or make further modifications.  Assume that minor modifications are made, and it is sent back to the players. Four of the seven bargaining team voters now approve…so what happens next?  The answer: It depends.

Earlier at negotiations, preferably at one of the very first meetings, the chief negotiator should have led a discussion about what to do in this exact situation.  Often, the team will decide early on that if a majority agrees to ratify, the dissenting minority will accept the vote of the majority, and then formally vote a unanimous agreement.  Why? As discussed below, for ratification purposes.  

If there is not such an agreement–or if the dissenters now refuse to stand by such an agreement–the negotiating team may be in a tighter predicament. The bargaining team must decide how important unanimity is, or how important the dissenter’s voice will be at a ratification meeting.  A vote of 4-3 in favor might be fine if the general membership/voters do not respect the three dissenters. Alternatively, a 6-1 vote in favor might be voted down at a general ratification meeting if the lone holdout is held in high regard by membership, or has a strong and large constituency.  

Assume the Association’s bargaining team is made up of LeBron James, Chris Paul, Step Curry, Kawhi Leonard, Russell Westbrook, James Harden and Garrett Temple.  Assume further that the League’s proposal increases the length and dollar amount of max players, but decreases the various mid-level and veterans’ exceptions. Even though the  bargaining team vote is 6-1, many more members are going to be impacted by the exceptions than by the revised max contract terms. A player like Garrett Temple can consolidate that constituency to vote down a contract more favorable to non-elite players.  That should never happen at a ratification meeting because the chief negotiator and bargaining team should anticipate such challenges, and probably demand modifications to get Garrett Temple’s support.

The mediator has been working between the teams, trying to bring them together.  Meeting in halls with just the chief negotiators, cajoling (bullying?) bargaining teams, encouraging (forcing?) movement.  Problem solving, but continually pressuring. Reminding the teams of WATNA, and the dangers of no deal. The mediator has moved the two sides within sight of a deal.  

Now the mediator starts to work each team, finding the votes and the constituencies.  Suggesting (telling?) that there will not be a better deal, that the other side will not move any further.  Are the dissenters ready to take responsibility, to take ownership of the disaster that will ensue? In NBA terms, for a strike?  For a lockout?  

At some point, the mediator will express disgust, and start to pull away. Warning:  “It’s out of my hands now.” The play is to get called back into the room — to find out if the dissenter is bluffing, needs to be heard, is willing to move.  Years, even decades, of experience will inform the mediator’s next decision: to come back, or to walk away.

When a deal is done, the mediator pulls both bargaining teams into a single room and congratulates them on their hard work and dedication.  He tells them what a pleasure they have been to work with (he may be lying). A finalized memorandum of agreement is drafted and signed by all bargaining team members.  They decide how the deal is going to be announced; to the players, the governors, the press.  

The work of the bargaining teams is finished. Actually, it’s not.  The parties convene (now, or at a later date), to discuss the last part of the collective bargaining process:  Ratification, which will be the subject of our last article in this series.

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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