Jeffrey Kessler Rumors

Jeffrey Kessler nearly killed the deal. Again. Sort of. Kessler, the union’s outside counsel, has been a lightning rod for criticism during this process and a frequent target of Stern for what the NBA believes has been a disruptive influence in the negotiations. On Friday, Kessler nearly torpedoed the negotiations again when he, via speakerphone, asked the NBA for a 51 percent of the basketball-related income. Stern and Holt, who have been vehemently opposed to giving the players any more than 50 percent, rejected the proposal. While Kessler was merely the vessel delivering the union’s message, his offer infuriated representatives from the league and, according to a source close to the NBA’s Labor Relations Committee, nearly ended the negotiations. The two sides stayed at the table, however, and, according to the source, eventually agreed on a band that will give the players between 49 and 51 percent of the BRI.
The final push came with the involvement of a new figure: Jim Quinn, a former outside counsel to the players union, who was hired by Hunter last week to help restart the talks. Quinn essentially replaced Jeffrey Kessler — the current outside counsel — as the lead negotiator for the players when the parties resumed talks on Tuesday. That meeting set the stage for Friday’s critical session. N.B.A. officials regarded Kessler as a contentious negotiator who has been an impediment to a deal. Quinn, a partner at the Weil, Gotshal law firm, is highly regarded by all parties and has a strong rapport with league officials, most notably Stern. Oddly, neither Quinn nor Kessler was present for Friday’s meeting. Kessler participated by conference call. Quinn was replaced by one of his partners, Bruce Meyer.
Spurs owner Peter Holt, chairman of the owners’ labor relations committee, also was in New York for Friday’s settlement conference on the 148th day of the lockout, as was former union president Derek Fisher, sources told Tempestuous players attorney Jeffrey Kessler will not be present. While Kessler still is “very much involved,” according to a source, he no longer has the role of lead negotiator for the players and has been replaced in that capacity by Quinn, a voice of reason with a long history of deal-making with key figures and attorneys on both sides of the dispute.
Of all the system issues that remain in dispute, that is the most contentious one that could loom as a deal-killer. So take your turkey with a grain of salt today, folks, and don’t get overly comfortable when the tryptophan kicks in and you lay down for that afternoon nap. There are still a lot of moving parts here, along with a level of mystery that is a new, added twist to this 147-day trip down misery lane.
A source tells that the most significant impediment to a deal remains the owners insistence on an escrow withholding system that would ensure that the revenue split for each season ends up being 50-50. Players have offered to have 10 percent of salaries withheld, but a problem has continually arisen when the sides have discussed what mechanism would make up for the shortfall if the 10 percent withholding did not get the players’ share down to 50 percent. Would the shortfall carry over into the next season? Or would the players have to make up the difference in some other way to balance the books at the end of each season to provide for a fresh start at the onset of the next season?
Lawyers for both sides filed updates this week on an N.B.A. lawsuit against the players, which accused them of plotting to disband their union as a negotiating ploy. The players made that move on Monday after labor talks collapsed. In a letter filed in the United States District Court for the Southern District of New York, the N.B.A. lawyer Jeffrey Mishkin seized on the union’s dissolution as proof of the league’s claims. Jeffrey Kessler, who represents the players, responded in a letter Tuesday.
Despite advising their rank-and-file to save their money for more than two years, union officials have always been nervous about what will happen with players who love to live large and/or have to support many people, whether they’re family or friends or both. As one executive has put it, “When the pay stops, will the splintering start?” That’s what owners hope will happen, at least according some in the NBA Players Association, because there’s nothing quite like having players who need money. They’re liable to start pushing for a deal, even a bad one, just to get back to work.
The players fired right back in their own letter, arguing that the decision should not stop U.S. district judge Paul Gardephe from dismissing the league’s lawsuit, saying the decision to disclaim interest was “uncertain until it was made.” “The hope is that the magnitude of the uncertainty and complexity will cause both sides to come back and put aside the legal arguments and get back to talking about (basketball related income) and system issues,” said Gabe Feldman, director of the Sports Law program at Tulane. “The easiest way to get these lawsuits to go away is to agree on terms of a new collective bargaining agreement.”
The players’ response was ordered by Nov. 23, but players’ attorney Jeffrey Kessler responded Tuesday. Unsurprisingly, the league argued that the NBPA’s decision to disclaim and take up its case with the NBA in federal court under antitrust law further supported the NBA’s contention when it filed the lawsuit Aug. 2 that the players were going to do that all along. “On more than two dozen occasions … the union has threatened to abandon collective bargaining and commence antitrust litigation to challenge the lockout,” league attorneys wrote. “And the complaint alleges that the union’s threats of antitrust litigation are having a direct, immediate and harmful effect on the parties’ ability to negotiate a new collective bargaining agreement.”
It preserved Hunter’s power, his standing with the attorneys, Jeffrey Kessler and David Boies. No one does self-preservation like Hunter. When I asked executive committee member Keyon Dooling why the union hadn’t done this in July, when it was already known the NBA would never negotiate a favorable deal with the union, he couldn’t answer the question. These were the same player reps Hunter convinced to spend hundreds of thousands of the union’s dollars – who knows, maybe more – on legal fees to chase an unfair labor practice case against the NBA. Forget decertification, Hunter told the agents and players. They could file that expensive, time-consuming grievance with the National Labor Relations Board and get back on the floor. The NLRB hasn’t ruled on the case, and never will because Hunter’s disclaimer means the filing has to be dropped.
After player representatives for 28 of the 30 teams, and about two dozen more players, voted unanimously to file a disclaimer of interest and hire attorneys Jeffrey Kessler and David Boies to represent them in a class-action suit, Evans said the union had little choice but to take that route. “We’ve literally compromised; we’ve literally bargained in good faith and for that not to be good enough, it’s inexcusable,” he said. “We were left with no options.”
The NFLPA never got an ultimate ruling on whether the lockout or disclaimer were legal, but instead got a narrow ruling from the 8th U.S. Circuit Court of Appeals that the federal district court did not have the authority to lift the lockout. “I felt the combination of Boies and Kessler, from my perspective, would be an unbeatable team,” Hunter said. “… The players arrived at that conclusion on their own.”