Tag:2011 NBA lockout
Posted on: November 7, 2011 9:34 am

Report: NBPA asking for team reps at meeting

By Matt Moore 

The players have a lot to talk about Monday, and they want a full house for it. 

Ken Berger of CBSSports.com has confirmed an ESPN report that the NBPA has asked representatives from all 30 teams to attend their meeting in New York on Monday. The range of topics on the table will include the NBA's latest offer, though union leadership is firmly against bringing the offer to a vote as it deems it "unacceptable." On the extreme opposite end of the spectrum is the issue of decertification, and whether or not the NBPA should break apart its union in order to pursue antitrust suits against the league as individuals. So there's kind of a wide gap in how the union might go. Accept the unacceptable and get a deal in the face of the league's strongest bullying tactic yet, or decertify and commit professional suicide in order to gamble on a miracle favorable ruling on three different levels. 

Who's bringing punch and pie?

As we outlined here on Friday, decertification is certainly an option, but the odds of its success are extremely limited. It's best used as a negotiating threat, a threat which of course is wasted if you actually, you know, use it.  But there are players for whom this has become as personal as it seems to be to the league. The league wants to prove a point to the players, and the players are responding the same way most anyone would if you pushed them around enough. They want to fight back. Behind that is a group of agents who have larger investments long-term in the league beyond just the players playing now and want to make sure they fight for every dollar they can get over the next 20 years, not five or ten. 

But as Berger pointed out on Sunday, there are a number of agents who don't support decertification and understand what it means financially. Perhaps in July it could have been used as a viable weapon, but Billy Hunter understood the risks involved in taking this to court and putting this conflict into a trench-warfare-type environment. He gambled on being out in the open, able to maneuver and possibly regain some ground. His gamble didn't work, as the owners' onslaught pressed on. So now the union is torn apart, with some players just wanting to go back to work, some players needing to go back to work, some players wanting to talk more, and a number of players and several All-Stars (with the bank accounts to back it) wanting to blow everything up and commit to a full-on battle.

Might want to order the butter knives and not the steak knives for lunch today. That meeting's going to get really serious very quickly.  
Posted on: November 4, 2011 10:17 pm
Edited on: November 4, 2011 10:21 pm

NHL Commish: Losing season worth it

By Matt Moore 

The NHL sacrificed an entire season to get the deal they wanted from the players. It was draconian, it was brutal, it was effective. For months, there have been rumors and speculation that the NHL lockout provided a template for the NBA owners. If the NHL could effectively reset everything back to zero, perform a complete realignment, and then walk out as a legitimate sports league that at least in some senses in thriving, why can't the NBA?

NHL Commissioner Gary Bettman joined Yahoo! Radio to discuss the NHL and the correlation between its lockout and the current NBA lockout which is currently threatening the entirety of the 2011-2012 season. Our own Brian Stubits of Eye on Hockey caught the appearance and transcribed quotes for us. The theme is pretty simple. First, Bettman discussed how painful the lockout is for everyone involved. Players, owners, workers, everyone. 

"Any time you have a work stoppage for any length of time in any sport or any business, it's very painful. There are the people that are involved, there are the people that are indirectly involved and in a sports context, you've got the fans. 

"It was very painful for us when we lost the season. We didn't have a choice. We had some pretty fundamental problems. And in our case, I'm not necessarily suggesting it's a template for anybody else, we came back stronger. We were back stronger than ever on Day 1 because our fans understood that we had problems and that they had been addressed in collective bargaining and that gave us great optimism for the future. 

"But a work stoppage is painful for everybody, in any context."
Well, I'm sure it was comforting to arena workers to know the commissioner felt the pain for them. But Bettman's comments on not having a choice is the same kind of ideology at play in the NBA. Justifying brutal negotiating tactics that cause job losses and hurt fan interest is easier when you claim there was no alternative. Bettman elaborated on how losing an entire season was unavoidable. 

Bettman was asked if he would tell the NBA owners the pain of losing an entire season was "worth it" for what the owners gained from the process:

"Well I wouldn't be presumptions enough to tell an NBA owner anything at this point. But our case, and that's the only thing that I can address, we didn't have a choice. We needed a new system. We needed to change our circumstance, our model. Without that, I'm pretty sure we couldn't have continued. 

"So in our case we did what we felt was absolutely necessary. We've come back stronger and people believe the game and the business of the game has never been better. But again, that was our circumstance six years ago and it would be presumptious for me to suggest to the NBA or any other league what they should be doing." 
And that's how the NBA will justify the damage they have done and will do to the league. That they had no alternative. If you remove your options, you can claim that you were "forced" into the desperate and extreme measures you undertook. 

This is the model the NHL has given the NBA.

Thanks, hockey.
Posted on: November 4, 2011 11:23 am
Edited on: November 4, 2011 1:51 pm

Decertification: The Nuclear Option

By Matt Moore 

With reports surfacing Thursday night of a possible coup being attempted on the part of outraged players with regards to concessions granted by NBPA leadership in negotiations with the NBA on a new CBA, the talk is now shifting to the courts. Players are threatening an "involuntary decertification," in which 30 percent of union membership signs a petition to bring a vote to the union with regards to decertification. From there a simple majority would be needed to decertify the union. That opens the way for the players to bring individual antitrust suits, which could potentially damage the owners and even end the lockout. 

But what does any of this mean?

To find out, we spoke with David Scupp of Constantine Cannon LLP, an antitrust firm based on the East Coast. Let's try and get to the bottom of what any of this means.

What is decertification?

In an effort to protect employees, the National Labor Relations Act put into law a compulsion for employers to collectively bargain with unions. Under the terms of collective bargaining, Scupp says that in time businesses were protected from antitrust laws as long as both sides were involved in collective bargaining, which must be done through a union recognized by the NLRB. 

"A rule emerged in the 1980's which says antitrust laws are out of bounds except when there is no longer a CBA between union and management," Scupp says. "The only way around that is to decertify the union. That's the result that came out in the 1990's."

So as long as the NBPA exists, the owners are protected from antitrust litigation. Thus, decertification. 

Decertification can be committed to in separate ways. Disclaim of interest is a faster process that involves union leadership essentially scuttling their own ship. However, it is less likely to hold up in court. What the 50 players (and their agents) are seeking is an involuntary decertification, which requires the 30 percent petition, the majority vote, and recognition from the National Labor Relations Board. In doing so, the action would dissolve the union, ending protections for the owners against antitrust suits and paving the way for players to pursue suit against the owners. It is believed that this option represents the only true way to gain leverage against the owners. 

In short, Scupp says, "the law gives the right for the players to be and not be a union." 

What are the legal challenges to decertification?

Before we get into antitrust considerations,  it's important to consider that the league has already challenged any move from the NBPA to decertify or disclaim interest. The league filed suit against the NBPA attempting to protect itself from any suit resulting from decertification on the grounds that the NBPA has not bargained in good faith and that any decertification on the part of the players is not legitimate. This is where the term "sham decertification" comes from. This same consideration was brought up but not settled, Scupp says, during the NFL lockout and subsequent court battle with the NFLPA. 

"The argument says that the union is decertifying, but it's not a good faith decertification," Scupp says. "It shouldn't be a lightswitch that can be turned on and off. That argument needs to be tested. It wasn't one of the issues that was resolved in the NFL case. The league is arguing that if the players' union decertifies, it would be a sham and the court should not entertain a suit."

The biggest problem with this particular suit, Scupp says, is that it's attempting to block something that hasn't occurred yet. Scupp says that the court is essentially tasked with reading intent towards the NBA's decision to decertify, which it has yet to do. How do you evaluate the intent of a party regarding an action they have not taken yet? That's the challenge to the NBA's suit, as outlined by the NBPA in their reply memorandum

Should the union elect to decertify involuntarily, as is being proposed by the players, the sham argument becomes more difficult to prove. The sham argument proposes that the union's decertification is merely being used as a tactic towards negotiation. Having the players (at least on surface) detonate their own union without consultation or approval from NBPA leadership would be pretty difficult to challenge as a sham.  

So the union decertifies, what happens then? 

Why would you give up the protections afforded you by the National Labor Relations Act to collectively bargain by decertifying your own union, essentially putting you out on your own against the power of the NBA?

Because it allows you to sue for antitrust. And it is here we enter the wild, and the one last, desperate hope of the players gaining leverage or an outright victory over the union.

Players would file suit against individual owners claiming that the lockout itself is an antitrust violation, Scupp says. "It's a group boycott, outside the context of collective bargaining, an anti-competitive element, would be their argument," according to Scupp. 

 The league acts in collusion regarding all matters of the CBA, according to the plan of attack for the players. 

"The salary cap, draft rules, etc., if those practices are part of the CBA," Scupp says, "if you're going to restrict free agent movement, and all your teams are going to act together, that's a violation of antitrust, according to the argument." 

We're used to hearing about open markets with regards to antitrust. The NBA is the only real "market" that exists in the United States for professional basketball since the ABA-NBA merger. But Scupp says that the suit would be focused more on the elements and practices of the NBA that may constitute an antitrust violation.

"There are certain violations which are what are called per se violations," Scupp says," that are so anti-competitive, you don't have to prove what the market is. If it is not a per se violation, they go with a rule-of-reason analysis. The players would have to prove what the global market is. That's a very good question, what the market is."

Does the professional basketball market include minor leagues like the barely-in-existence current ABA? Does it include Europe? Does it include exhibition games to the degree it can be argued players can make a living off that option? 

"Is it a worldwide market for basketball and if so does the NBA have market power?" Scupp asks. "Is the NBA a market inside itself? I don't know, but it's a very good question. If the lawsuit ever progressed to that point, would be important."

Scupp says that other questions that would come into play are what percentage of the market does the NBA control, and are there barriers to that market for the players? It gets trickier the further this process goes. 

What happens if the players win an antitrust suit?

The owners go down like Michael Spinks. Scupp says that a possible result would be the court enjoinging the lockout, effectively ending it. The players wouldn't be bound by it, and would start receving checks again. This could actually be enacted while the suit is taking place, putting even more pressure on the owners. For that to occur, the NBPA would need to prove irreparable harm stemming from the lockout, which involves combating a likely claim from the NBA that Europe and other employment options undermine the idea of irreparable harm.

Should the court enact an injunction, the league would no doubt appeal. The question of whether the injunction would hold during such an appeal is up for debate. The original judge in the NFL case in Minnesota held that the injunction would hold during an appeal and the lockout would be withdrawn, but the Minnesota district court ruled to suspend the injunction during the appeals process, opening up the lockout once more. While Scupp says a ruling on such an injunction would come quickly, that would still take a month or more, time neither side has if they wanted to save a season.

But the monetary result is the real hammer for filing the suit. 

"At the end of the day, if the players could win an antitrust suit, you get treble (triple) damages, the payout at the end would be very significant." 

Furthermore, if it looked like the players were going to win such a suit, the league would likely cave and grant the players huge concessions or keep elements the same in the next CBA. It would represent a dramatic win over the owners. 

So the decertify-and-antitrust-suit option has to be the best choice for the players, right?

Not at all, according to multiple experts, including Scupp.  

Provided they manage to get the required votes for a decertification, and that decertification holds up in court, and the players file suit, and the court hears that suit, and the players win, what's the timeline on that? Years, Scupp says. Years.

"The question is whether the players can sustain through that period," Scupp says. "I'm sure a lot of players can, but I'm also sure a lot of players can't." 

Consider who is linked to the 50-player initiative. At least seven All-Stars and probably more were reportedly on the calls. Those players have the means to survive such a monetary drought. Dwyane Wade isn't going under in three years. But the majority of the NBPA is made up of role players and end-of-bench guys, along with rookies and young players who don't have those means.

Additionally, losing the league for multiple years would likely simply mean the end of the NBA. It's unfathomable to think about, but that's the reality. Even once a case is decided and damages set by a court, the appeals process would take further years. Scupps says that the only way this is a feasible option for the players should they pursue this route, considering the money lost in one or more lost seasons, is if an injunction is placed on the lockout, and that is far from certain. This isn't a quick process, it's a painfully slow one, and one that would bleed the league to a flatline on the national spotlight.

Which is why Scupp says decertification and subsequent lawsuits only work as a negotiating tactic, not as a viable strategy towards conflict resolution.  

"An antitrust suit would take years to resovle and neither side takes that."

If the suit is merely being filed as a negotiating tactic, wouldn't the court want to avoid participating in such a process? Scupp says it's likely that the court would urge both sides to settle the dispute at the negotiating table, rather than using the courts as a means to an end.

So what's the end game here? What happens next?

The players are playing a dangerous game of chicken right now. Basically, they have no weapons to aim at the league in this negotiation and feel they're backed into a corner with no acceptable solution in sight. So they've pulled out the antitrust hand grenade and are daring to pull the pin. If the players go down, they're taking the owners with them. 

The problem is that the likely result of this is a lost season, something that the owners have been hinting at and Billy Hunter has explicitly said some owners are pursuing anyway. It's threatening the NBA with something it's already made clear it's ok with. How do you get someone to back off by punishing them with something they're fine with?

The only chance the NBPA has here of victory or even a marginal survival is that the prospect of leaving the process up to the courts takes it out of the NBA's hands. The owners no longer control the field, despite the many obstacles in the way of such suits. That kind of wild card might be enough to shake the moderates to align with those owners who do want a deal and a season, wrestling control from the hard-line owners who so far have carried the day.

Decertification and antitrust litigation is the nuclear option. Once it starts, stopping it becomes harder and harder. The case won't even be brought to court until after the entire 2011-2012 NBA season would be cancelled, and the process could and would probably take up to another full year to reach an initial resolution, prior to the appeal process. The players would be ending professional basketball in this country to protect themselves from the owners' efforts which have been draconian and brutal.

Saturday will be day 128 of the NBA lockout. If it is not the last, the future of the NBA looks dark for all involved.

Additional resources: 
Huffington Post lockout primer.  
Sports Illustrated FAQ.
NBA vs. NBPA legal documents, via Brian Cuban on Twitter. 
Posted on: November 4, 2011 10:02 am

Report: It's going to be a full-house Saturday

By Matt Moore 

With the player's union bitterly divided over how much to surrender in order to get a season, rumor and allegations flying rampant, Saturday's meeting beween the NBPA and NBA was going to be drama-filled to begin with (as much as a bunch of guys in suits sitting around a hotel boardroom can be). But the Boston Herald brings news it's going to go to the next step. 
According to sources, the session will be much larger than the recent talks in terms of participation.Players beyond the executive committee are expected to attend, and there could be greater participation on the owners’ side, as well, as they try to end the lockout and reach a new collective bargaining agreement.

This may be an effort to make things more transparent in response to inside questions about the directions the two leaderships have been taking. It could also be a show of solidarity from each side amid reports of fractures.One source said he has no idea what to expect from the expanded session.

“It could be that everyone gets together and cooler heads rule the day,” he said. “Or it could be one of those battle royales from wrestling. We could see players and owners being thrown over the top rope and out the hotel windows.”
via BostonHerald.com - Blogs: Celtics Insider» Blog Archive » More players, owners to get involved in NBA talks Saturday.

Based on how the last week has gone, I would bring a Lucha Libre mask and some tights, if I were you.

This is actually spectacularly bad news for anyone paying attention. Progress has only been made in talks in small groups. Getting the larger contingents involved when thing weren't so volatile was bad enough, and lead to multiple breakdowns in talks. But throwing in the drama of the past week along with owners who no doubt smell blood means that this meeting could be very Hobbes-ian: nasty, brutish, and short. It could turn into a Quentin Tarantino flick: lots of blood and everyone dies in the end.

There's a perfect storm of elements coming to play that could spell the end of the NBA. Not for a season. For good.  
Posted on: November 3, 2011 9:49 pm
Edited on: November 4, 2011 2:58 am

NBPA members meet with decertification attorneys

By Matt Moore nba-lockout

Update 2:49 a.m.: Two separate lists of players involved in the calls came out late Thursday night. Yahoo! Sports reported Blake Griffin, DeAndre Jordan, Jason Kidd, Al Horford, and Tyson Chandler, while ESPN reported Dwyane Wade, Paul Pierce, along with Ray Allen and Dwight Howard. That makes leaders from six different teams, including six current or future All-Stars. Kobe Bryant and Kevin Garnett have not been formally connected to the talks, but considering Pierce's involvement, it could be assumed they were in support of the movement. That's a lot of players with a lot of pull.

We're in dark waters, here, kids. 

Yahoo Sports and the New York Times are reporting that 50 members of the National Basketball Players Association held two separate conference calls this week with an antitrust attorneys to discuss decertification and subsequent lawsuits... without the knowledge of NBPA executive board members. 

So, that's fun.

Yahoo reports that meetings were spurred by players, including multiple All-Stars, who refuse to go below the 52 percent of Basketball-Related Income already offered in negotiations with the NBA. These players reportedly feel too many concessions have been made. This directly contrasts multiple reports and statements from other players indicating that a 51 or 50 percent compromise would be considered reasonable in pursuit of a deal. This new set of reports indicates that not only is the union divided, it is divided bitterly.

A move to decertify is thought to equate to the end of Billy Hunter's tenure as executive director of the NBPA. It would also kickstart a scorched earth policy by taking the sport to the courts, one that could take literally years to resolve. The union would require 30 percent of its membership to sign a petition to raise a vote for decertification, then a simple majority of its membership to formally approve it. In other words, the 50-player contingent would need to bring on over roughly 150 additional players in order to reach that threshold. 

The reports come from multiple sources within 48 hours of a scheduled meeting on Saturday between the NBA and NBPA, which raises suspicions of the intent of the purposeful leak. The question is why and to what end. 

After talks broke down a week ago, it was predicted that things would get uglier.

They certanly have.
Posted on: November 3, 2011 11:51 am

Report: NBA, NBPA to resume negotiations Saturday

By Matt Moore

From the Boston Herald, they're headed back to the table once more: 

After breaking off talks last Friday, the NBA and players’ union are expected to resume face to face negotiations this Saturday in New York, according to involved sources.


The sides have been working within their own groups for the most part in these last days, setting their positions and deciding whether they will move from their most recent offers — and, if so, by how much.
via BostonHerald.com - Blogs: Celtics Insider» Blog Archive » League, players to resume talks Saturday.

It will have been one week and a day since labor talks last broke down on Friday. There was speculation the two sides would meeet this week but apparently they couldn't stand the sight of each other after the long talks that went into the wee hours of the morning last week yielded no deal.

The two sides are said to be "95 percent" done according to the New York Times but are bitterly divided over the remaining items on the agenda, the largest of which is the split of Basketball-Related Income. The owners have refused to accept less than 50 percent after getting only 43 percent in the previous agreement, while union officials have held firm at 52 percent (after saying they were holding firm at 53 percent... you see where this is going). The union has been rocked by allegations and indications from its members that there is a growing interest in finding a deal at 50 percent, while some members remain decisively behind holding the line at 52. 

It's difficult to see how these talks will generate anything positive, but talking is better than not talking, in most cases.

Saturday will be day 128 of the NBA Lockout.  
Posted on: November 2, 2011 10:38 am

The lockout has become brain damaged

By Matt Moore

There have been a lot of ridiculous stories during this lockout. JaVale McGee denying a quote given to reporters with a half dozen recording devices in his face is a personal favorite. There's Ken Berger's 50/50 cake. We've had "enormous consequences," 3 a.m. press conferences, and of course, "How u?." 

Tuesday night saw some pretty freaking ridiculous stories. 

It started with a column from FoxSports.com's Jason Whitlock,  who has written literally hundreds dozens four posts on the NBA lockout, asserting that Derek Fisher wanted to go 50/50 and Billy Hunter wouldn't let him. The piece pretty much painted Fisher as a sellout over his head. Point!

Then later in the day Tuesday, Yahoo! Sports' Adrian Wojnarowski wrote a column painting Hunter as the destabilizing force. Woj's assertion is that the union has lost confidence in Hunter's leadership, and would like a vote on a 50/50 BRI-split deal brought to the union for a vote. Counter-point!

If you're looking to read into this, you've got sources inside the union telling two different columnists two different things. Can you feel the stand-united-ness? 

Now, the appropriate action would be to not respond to reports, to continue on with leading the players. Make some phone calls to players who are particularly vocal. Sending a letter isn't going to help because then that just gets out to the media and it looks like you're squabbling and desperate for damage control. 

So naturally, the union sent letters. Lots of letters. 

Billy Hunter tossed aside discussions of a rift with Fisher and tried to get the horse under control, so to speak, by taking aim at the league. When in doubt, slam the side that's costing your constituents money. But wait, they're not through! Derek Fisher released his own statement threatening legal action against FoxSports.com concerning the allegations. The theme is clear. "Everything is fine! We are good! No problems, here! It's the NBA's fault and we won't back down!"

Problem is, that's not how it comes off. It comes off as a fractured leadership trying to undergo damage control. Multiple media outlets after the breakdown in talks last week said that this would be when things got "uglier." 

This is about as ugly as it can get. 

This is why the NBA is so forceful with keeping owners away from the media, why they are levying fines against their own owners for innocuous, common sense tweets that anyone can figure out. Micky Arison was fined half-a-million dollars for saying that he wasn't behind a move to prevent the season and restructure the deal some more. Anyone paying half-attention could have figured that out. But the league knows the more that is said, the more things get out of control, which means the more they have to respond to in the press, which means less time staying focused on getting what they want. 

There's been a lot of talk, some of it from me, about how flawed and nearly insane the league's stance has been. But if their position is out of whack, their execution has been flawless. The union's requests are reasonable, undersatandable: a deal where they don't lose their soul, their hat, and everything with it. Bu their execution of their defense has been sorely lacking. This situation is a clear example of that. 

In totally unrelated news, no talks are scheduled between the NBA and NBPA. 

Today is day 125 of the NBA lockout. 
Posted on: October 28, 2011 10:58 am
Edited on: October 28, 2011 10:59 am

NBA Lockout: A striking distance primer

By Matt Moore

There is a perfect storm of circumstancial information brewing Friday to suggest that the NBPA and NBA are on the verge of completing a labor agreement to end the 2011 lockout and being the 2011-2012 NBA season.

Here's where we're at as Friday's meetings get underway:

The New York Times is reporting that the league has contacted arenas to urge them to hold April arena dates. In short, they're working to secure an 82-game schedule as discussed Thursday, by extending the season and filling in games.
League officials, anticipating a resolution, are quietly preparing for an 82-game season. The N.B.A. has begun calling arenas across the league, asking them to keep dates open in late April, according to arena officials.

Each team would lose about 12 to 15 games with a Dec. 1 start. But they could reclaim a half-dozen or so games by extending the season through the end of April, two weeks past its usual conclusion. The rest of the games could be made up by adding an extra two to three games per month.
via For the N.B.A., Negotiations Are Taking ‘Baby Steps’ - NYTimes.com

Trust us, we'll have a lot more to say about the merits and detriments of trying to force in an 82-game season after missing a month if we get a season. But the bigger story right now is that the league isn't dragging its feet on setting up for the future. It's getting out ahead in anticipation of a deal being struck. This is the new reality after this week's meetings. As Billy Hunter put it Thursday night, the two sides are "within striking distance." 

Meanwhile, the breakthrough that has lead to all this goodwill going into Friday's talks? From Sports Illustrated:
Perhaps more important as a sign of progress: The source told SI.com the league has indeed come off its proposal to triple and quadruple penalties for annual taxpayers. It still wants to punish such teams somehow, and it has proposed doing so via increasing the tax rates by a set dollar amount rather than a multiplier. Both sides are mum on the precise details, but the effect would be to limit penalties in the highest tax bracket to something like $4 to $5 for ever $1 over a certain threshold. That’s still quite high — the Lakers last season could have paid as much as $60 million in tax, rather than $20 million, under such a system — but it represents a step down from the harsher system, where ratios could have hit 10-to-1 and beyond for repeat payers.

Also, the league has agreed that even teams who pay the tax should share in the revenue the tax generates, a source said. Under the old system, if a team went even $1 over the tax threshold, it forfeited its right to a share of the total tax pot — a check that can range from $2 million to $3 million in a typical season. The two sides are still working out the details, but that represents an important concession to the union.
via The Point Forward » Posts Deal is near as players, owners return to table «

To boil this down: the players were concerned that a punitive tax system which essentially discourages all spending over the cap would significantly limit players' earning potential. And that's a big deal for them. So the fact that the league has come off it and is working to keep the spending down without lowering a concrete ceiling is huge. Yahoo! Sports reported Friday morning that the "the tax isn't the issue" according to a source, that the debate has come down to the exceptions. Those are things which can be finagled and managed. 

So what's the deal with the exceptions? SBNation's Tom Ziller does a great job breaking it down:
But the creation of a second cap at the luxury tax line opens up a whole new zone of negotiation. Should the new collective bargaining agreement contain clauses that allow teams over the actual salary cap to do certain things (like use the sign-and-trade and mid-level exception) but don't allow teams over the luxury tax line to use those tools, the luxury tax line will become a huge deal. Flexibility is king in the NBA, and by creating separate sets of rules for teams over the cap and over the tax line, you do more to tamp down payrolls than any sort of graduated tax could.

It's no wonder that the players' union is fighting the last battles of the system negotiations along these lines. Yahoo!'s Adrian Wojnarowski reported that the hang-ups on system issues at this point revolve around rules for using the mid-level and bi-annual exception, as the owners want to limit the use of those for tax-paying teams and the players want to keep the exception open to everyone. This is why the battle has settled here: threatening high-spending teams with limitations to their flexibility is more powerful than making them pay a 200 percent tax.
via NBA Lockout On Verge Of Deal Creating Two Salary Caps - SBNation.com

In essence, the system that's starting to take shape doesn't prevent teams from being able to spend a ton of money, which is what the players want, but punishes them by removing their ability to make moves after spending that much, which is what the owners wanted. It disincentivizes teams from spending unless they absolutely should. Which is what everyone wants in the first place. It's almost like... a compromise! So glad it only took us two years and a month of canceled games to get here. 

ESPN's TrueHoop brought in a buried lede that has significant impacts in figuring out the dynamics of what's going on with the negotiation. Paul Allen was reportedly the hard-hand brought in to bust the union in last week's doomsday Thursday meetings which broke down. But...(from TrueHoop):
NBA sources, however, say it was nothing of the sort. In fact, they say, he was there at the invitation of the NBA's negotiators to watch Kessler. Allen was one of several owners who thought Stern and Silver had made players an overly generous offer of 50 percent of basketball-related income. The league's lead negotiators essentially replied: go see for yourself. You think you can get Kessler to go for 47 percent? Good luck to you.

In the ongoing dance between Hunter and NBA agents -- many of whom feel Hunter is soft, risk-averse, or ineffective -- Kessler has been seen as something of a shield for Hunter. If a tough lawyer like that will go for Hunter's deal, who are the agents to complain?

But that shield has been out of action and not, sources insist, because he is in the doghouse.
via Three reasons for the new mood - TrueHoop Blog - ESPN.

Kessler stands as the leverage for the players, proof that while the union membership may be weak and fractured, the leadership is not. That's a monumental game changer, considering that days after that meeting of disaster, we're here, again, "within striking distance" of a deal. 

And finally, a word of caution. Ken Berger of CBSSports.com reports that while progress has been made, the two sides are closer than ever, the tone has shifted, and beams of sunlight are creeping in, we're still in the dark, and with both sides expected to tackle BRI first on Friday, the whole thing could collapse at any moment. From Berger:
But while Hunter said the two sides are "within striking distance of getting a deal" on the system issues and moving on to BRI, Silver cautioned that the two sides are "apart on both" the system and the split. Asked about the gap on the system issues, Stern said, "We are not close enough right now. But I expect with a good night’s sleep, we’ll both come in with resolve to get closer."

But team executives who've heard this twice before, only to see the talks blow up -- on Oct. 4 over the BRI split and Oct. 10 over the system -- remained cautiously optimistic Thursday. One executive confided that his gut tells him "this will blow up one more time." "

"There’s no guarantees we’ll get it done," Stern said. "But we’re going to give it one heck of a shot (Friday)."
via Stern on labor deal: Friday's the day - CBSSports.com.

The momentum boat has never had more speed for shore. The two sides have never been so laughy and smiley with one another, to their faces. The league is planning for a deal to be had. The union's description of the talks has altered dramatically, from "concepts" and "ideas" to "the deal" and "within striking distance." 

Friday's not the last day, and we've seen this process go awry too often to feel safe. But there's light at the end of the tunnel for the first time since July 1st, and for once, it's not a train.