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The Collective Bargaining Agreement: A New Deal is Ratified

NOTE: This is the tenth (and last) 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.

On November 11, 1947, Winston Churchill told the House of Commons, “it has been said that democracy is the worst form of Government except for all those other forms that have been tried from time to time…” Thinkers can ponder the similarities and differences between convincing England’s Parliament to pass a measure and a Union membership to ratify a contract, but, in the end, it’s about getting the votes.

The NBPA bargaining team started meeting over a year ago. It had preliminary sessions, surveyed its members, drafted proposals, had negotiation sessions and internal team sessions, perhaps went through the mediation sessions and finally signed a Memorandum of Agreement (MOA) ending negotiation. They now must get that MOA ratified by the players.

The MOA lists everything that was agreed to by the bargaining teams. The simplest MOA might only be one page (for example, if it is just continuing the CBA for an additional year), or could be 10 to 15 pages. It identifies what will be changed to the current CBA — if it does not address something, the terms of the previous CBA stay the same. For example, if the League proposed a 90 game schedule, but ultimately withdrew that proposal, the current contract language (82 games) would remain unchanged.

At the end of the MOA, it is signed by both the League and the NBPA. But who signs it?  Legally, only an authorized representative of each party is required to sign it. Often, the parties will have the entire bargaining team sign it so that when it is distributed a clear message is sent that everybody on the bargaining team supports it. Broad support from the bargaining team increases the chances for ratification.

The NBPA’s bargaining team will have to present the MOA to its membership for ratification — but how? It may also have to present it to union leadership (officers, team representatives, etc.). If so, a leadership meeting will be called.  

Then, the membership is typically invited to an informational meeting. At this meeting, leadership explains the MOA to members. The NBPA Constitution and By-Laws likely set forth the process for the calling of this meeting. Those documents might mandate that the meeting be called not less than 48 hours from the signing of the MOA, or, alternatively, not more than 48 hours from the signing.  

The NBPA will also need to decide if the MOA should be shared with membership before the informational meeting. Of course, if the governing documents demand it must be shared, the negotiating team will do so. Often, that decision is left to union leadership, and there are pros and cons to sharing beforehand. Traditional unions often do not share because the MOA often contains technical language, and provisions that are the result of significant back and forth bargaining. Distributing the MOA before the informational meeting can lead to misunderstanding, and disincentivize people from attending the informational meeting. On the other hand, the members are likely desperate to find out what was agreed to, and, in the case of the NBPA, Woj has probably already tweeted out some of the basic terms.

At the informational meeting, the bargaining team will present the MOA to membership. It must decide who will do the presentation. Sometimes, the Chief Negotiator does the whole presentation after being introduced by the union President. Ideally, every member of the bargaining team has some role in the presentation — to once again emphasize that this MOA is the product of the entire team, not just a single member of the bargaining team. It makes ratification more likely.

During the presentation, the bargaining team will explain key components of what was agreed, and explain why these things were agreed. A good bargaining team will also review survey responses, and emphasize the gains that were demanded in the surveys. Some things demanded in the surveys were not obtained — the bargaining team will either address them during the main presentation, or be prepared to respond during the question period.

One of the final items explained to the membership is what happens if the MOA is voted down by membership. Without ratification, there is no deal — and negotiations start anew. Not where they left off, but possibly from day 1. At that point, the bargaining team may have lost credibility with the other side, and there may be a need for a new negotiating team. After the presentation, there will be a question and answer period. Typically, the bargaining team wants as few questions as possible, because once the questions start flowing, things can get ugly.

At that point, the meeting will either adjourn, or there will be a vote. If voting takes place at that point, simple yes/no ballots will be distributed and placed in boxes. Often, the meeting adjourns and sets a date and time for voting. Between the end of the informational meeting and the vote, the bargaining team should continue to lobby for ratification of the MOA.

For an MOA to be ratified, the number of votes needed…depends. In rare circumstances, a CBA must be ratified by a super-majority. Three-quarters or two-thirds, like, for example, a Senate Impeachment trial. More often, it requires a majority of votes cast. Sloppy governing documents can simply state “a majority” — creating a situation where every member who does not vote effectively casts a “no” vote.  

Once the ballots are cast, the votes are counted, and there are the required number of “yes” votes, the MOA is ratified by the NBPA. Good form requires that the League immediately be notified of the MOA ratification — but, form does not require that the League be advised what the vote was (for example, 240 “yes” to 60 “no”). The NBPA should keep that a closely-guarded secret because the League will now follow its own procedures for the governors to ratify. If the governors find out that a ratification was truly overwhelming, some governors might vote no, thinking that the NBPA members would have accepted a less favorable deal.

After the NBPA and the League ratify, the MOA is binding and negotiation is over. Its terms will be incorporated into the current CBA (the drafting of the actual new CBA could take months), and Larry Coon will start updating his FAQ. If the CBA had technically expired, the MOA will address how things during the expired time are to be handled — are changes retroactive to the expiration of the old CBA, and, if so, what must be done to make that happen.

Negotiation is over, neither side is happy, but hopefully neither side is completely unhappy. No reason to despair, because, starting tomorrow, each side will start preparing to negotiate the next contract.

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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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