NBA CBA Negotiations: Is this the best they can do?

Today, for the first time since NBA Owners locked out the players on June 30, the two sides have agreed to meet in New York. Those close to the situation urge fans not to get their hopes up, predicting little will be accomplished before missed games and paychecks become an even clearer and more present danger.

Various outlets confirm that the two sides are “still far apart” and as each side becomes further entrenched in their positions, it follows that a negotiation process that relies on rationality and not fear (of missing paychecks, of losing momentum, of looking stupid, of being “beaten”) becomes increasingly unlikely.

From this perspective, and I imagine even from the perspectives of those journalists closest to the labor dispute, it’s impossible to draw the line between public relations jockeying and actual position statements. That’s because these two sides will, no matter how similar their offers become, remain far apart. They will remain adversaries: labor vs. ownership.

That’s strange, considering the interconnectedness plainly suggested by the current salary cap system, which rewards both players and owners for the growth of the league by paying each a percentage of basketball related revenue. Or, think about how the league is the National Basketball Association, implying those involved, from teams to individual players, all need each other for the whole thing to work.

Yet the archetypal plotline of labor versus owners persists. The intensely public nature of the dispute encourages outsized rhetoric—this issue is “religion,” a “blood issue,” a side “will die on this hillside”—that confers righteousness on one side or the other and communicates only each side’s inflexibility.

But absolute morality and capitalism make strange bedfellows. This negotiation has, in many ways, boiled down to “who can get more money to provide this entertainment.” There is no perfect scale by which to judge whether Paul Allen or Kobe Bryant should make $40 million through his association to the game. Fair is in the eye of the beholder, and so arguing about what players or owners are entitled to is pointless. All involved are entitled to as much as they can get the other side to concede.

So here we are. Two sides with vastly different definitions of fair arguing semantics.

Now, I apologize if this shocking statement causes you to spew your coffee into the crevices of your keyboard, but there may be a better way to do this.

In most industries, labor issues are even more complex than professional sports. Whole factories get shut down or stay open, companies go out of business, pensions are terminated or redefined, and in union-protected examples, management and labor must decide together how that happens.

Harvard Law negotiations professor Joel Cutcher-Gershenfeld noticed that the traditional negotiations model distracted from what should be the true goal of labor disputes. Indeed, the NBA players and owners are not unique in focusing on winning the negotiations rather than finding the agreement that is best for the health of the company/league.

The Economist touched on Cutcher-Gershenfeld’s model in 2002:

The workplace has evolved to meet the standards of a global economy, with its accompanying competition, mergers, acquisitions and international labour force; in the United States, at least, the strike-threaten-hammer model has been recognised as unduly painful and counterproductive. The two-tier hierarchy of management and labour has given way to a maze of responsibilities and relationships, all of which bring the interests of both sides closer together than ever before. Add to this the fierce international competition for jobs, and the diminishing influence of unions, and the need for a new approach to solving labour disputes and navigating contract relations becomes obvious.

International competition for labor, counterproductive negotiation patterns…sound familiar?

Cutcher-Gershenfeld’s solution, called Issue Based Bargaining or Inter-Space Bargaining shifts the negotiating paradigm from adversarial to collaborative. Instead of arguing about who’s in the right, inter-space bargaining transfers the focus onto the issues that are most important to each side. As Cutcher-Gershenfeld explains, “When people start to examine the underlying interests, it becomes easier to generate numerous options to satisfy those interests.”

By openly articulating interests and issues, both sides are encouraged to abandon posturing, bluffing and all the attendant BS that poisons productive discussion. The NBA and its players have both presented their purportedly “best, last offers.” But there’s little hope that either solution will be agreed upon by the other side when the proposals were created independently.

Inter-space bargaining isn’t some ivory tower theory without real world application. The technique has been successful at companies like health care supergiant Kaiser Permanente and Seattle’s Pacific Medical Centers–which adopted the practice four years ago and has been named one of “Washington’s 100 Best Places to Work” three years running while opening new revenue-generating facilities and meeting financial objectives.

How would inter-space bargaining apply to the NBA?

The following would likely make a list of important issues between players and the league:

  • Quality of basketball—this would include everything from offering better pay than any other professional league to incentives for franchises to compete even in losing seasons to the D-League and draft rules
  • Guaranteeing a middle class of NBA veterans
  • Player pensions, benefits and education that prepare them for life after the NBA
  • Public perception of athlete image
  • Revenue necessary to invest in growing foreign markets. The players union wants to know where this money is going, how much is being earned and what the long-range plan is on foreign investments. Disclosing these plans and figures would subject them to the scrutiny of the players and owners.
  • Revenue necessary to invest in local market. If new stadiums are crucial to producing the revenue that pays players, owners should be able to prove that.
  • Owners compensated for their time and monetary investment. Perhaps the most contentious issue, but if league management took the above transparent acts to grow the sport and league (and revenue to pay players), why not?

If players, their representatives and league management were put together in non-hierarchical, non-adversarial environment and charged with solving the following issues, is there any doubt the negotiations would be more innovative and productive, ultimately yielding a smarter, more efficient and profitable league?

Today, players and owners can’t even agree on the basic terms of the negotiations. The players don’t believe the league is negotiating in good faith. Owners believe the players are making too much, in and in truth the old rallying cry of NBA athletes disabused from rightful pay seems false today.

Trust is in short supply. Whether the NBA is losing $300 mil a year will draw partyline answers that echo the fervent responses of those in the US government who believe diametric opposites, spending or cutting, will help create jobs.

But what if the owners and players began negotiating this way this instant, could they accomplish the compromises necessary to reach an agreement without missing games and paychecks? What if they had began negotiating this way in earnest six months ago?

When two sides fail to agree on the facts, they may still agree on which issues need solving. The NBA may feel permanent, but many leagues have been hurt, crippled or worse by labor agreements that failed to address issues in favor of claiming Pyrrhic victories for one side.

Parity may be a pipedream on the court, but everyone can win if new ideas that advance compromise are given an equal shake in the boardroom. The resulting agreement would create a better league for players, owners and fans alike.

Twitter: @BeckleyMason

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