NBA Players Association Needs to Tell Jeffrey Kessler to Take a Hike

Eric HolzmannContributor IAugust 4, 2011

Attorney Jeffrey Kessler is more of a problem in labor negotiations than he's worth.
Attorney Jeffrey Kessler is more of a problem in labor negotiations than he's worth.Hannah Foslien/Getty Images

"Progress, far from consisting in change, depends on retentiveness. When change is absolute there remains no being to improve and no direction is set for possible improvement: and when experience is not retained, as among savages, infancy is perpetual. Those who cannot remember the past are condemned to repeat it."  -- George Santayana

The above quote is one that we all have heard, especially the part that is in bold.  Throughout our lives, I am sure many of us have referred to it by saying "Those who do not learn from history are doomed to repeat it".  It is one of the most overused sayings in the world. 

I began with this quote because back in March, the National Football League decided to lock out its players after they could not come to terms on a new Collective Bargaining Agreement with the NFL Players Association (NFLPA).

We heard the usual rhetoric from the owners that they were losing money and wanted more of the financial pie.  The players, on the other hand, looked at the TV revenue and football's immense popularity and were less than convinced.  They wanted to see financial proof from the owners that showed teams were losing money.

When the owners relented, the Player's Association did something no sports union had ever done before.  They decided to decertify as a union and file an anti-trust lawsuit against the NFL, claiming the lockout to be illegal because it prevented the players from making a living. The players went this route on advice from their lawyer, the well known Jeffrey Kessler.

NBA Commissioner David Stern
NBA Commissioner David SternEzra Shaw/Getty Images

Jeffrey Kessler is considered the most prominent sports lawyer in the country.

He has litigated some of the most high profile sports cases in U.S. history, such as McNeil vs. the NFL, which he won and resulted in the establishment of the current free agent system in the NFL.  He has also successfully represented Michael Vick and Plaxico Burress in salary arbitration hearings, as well as Latrell Sprewell in his suspension arbitration.  With this kind of resume, It's safe to say the man is good at his job. 

At first, the NFLPA had some success when Judge David Doty restricted the owner's ability to access the $4 billion in TV revenue funds during the lockout.  The players got more good news when Judge Susan Nelson granted an injunction, ending the the lockout, citing irreparable harm was caused to the players by not allowing them to work. 

Then it all started turning.

First, the NFL was issued a temporary stay (which then became permanent) on the injunction which effectively reinstated the lockout.  Then, the Player's Association presented their argument to the Court of Appeals, who also sided with the owners.

The amazing thing about this is, while all the legal proceedings were taking place, the Player's Association and NFL were meeting secretly and making progress towards a new Collective Bargaining Agreement...without any lawyers present.

The reason I am bringing up this little bit of recent history is because Kessler also represents the NBA Player's Association (NBPA) in their current labor impasse with the National Basketball Association, Commissioner David Stern and the NBA owners. 

I am not trying to take anything away from Kessler.  He's a lawyer and gets paid to represent his clients by using all his legal knowledge to gain an advantage.  As I said above, his career has shown he's very good at doing that.  

I just don't want to see the NBPA go down the same pointless road the NFLPA went down, because it was fruitless.

The NFLPA and the NFL could've negotiated the same agreement they got without decertifying and going through the months of legal hassles they went through.  It's a known fact they made the most progress when the lawyers were not involved.

The NBA case is definitely a little different.

For one thing, the NBA is the one who filed a lawsuit, trying to block decertification, and then they filed a complaint with the National Labor Relations Board claiming bad faith negotiating by the NBPA.  David Stern even went as far as to blame Kessler for "distracting" the union with decertification talk which is "keeping them from making a deal."  Even though I think both of these claims are bogus, it shows that Kessler's mere presence in these negotiations is creating an issue. 

I know the issues are somewhat different as well.  David Stern seems as determined as ever to get the owners the deal they want this time.  It makes sense the NBPA wants the best lawyer to represent their case.  However, we already know decertification and anti-trust lawsuits don't work, and now, there's even a precedent for it. 

NBPA union chief Billy Hunter needs to do the right thing.  He should send Kessler home and get back to serious negotiation, or we might lose the 2011-2012 NBA season.

And somewhere George Santayana will be turning over in his grave....