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Roger I. Abrams

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The Triumph of Collective Bargaining

Posted: 11/26/11 04:32 PM ET

This has been quite a week in the business of sports. Club owners in baseball and basketball have settled their labor disputes with the unions representing their players through the arduous process of collective bargaining. While the parties in baseball were expected to reach an agreement, their history of failed negotiations makes that an uncertain proposition each time a collective bargaining agreement expires. The parties in basketball have been through a painful set of negotiations, and, in one last attempt to save their season, they reached a tentative pact.

Collective bargaining is a frustrating experience both for the participants and the fans of sports. I am sure there are days when club owners wish -- as many employers do -- that their employees would just toss out the union and come back to work at the generous salaries the clubs offer. Many of these owners made their riches running non-union businesses and enjoyed a full measure of managerial discretion. In team sports, however, the owners need the unions. Unless embodied in a collective bargaining agreement, many of the rules needed to operate a team sport would constitute antitrust violations, something the owners must avoid.

The NBA negotiations demonstrated how complicated bargaining can be when you have dozens of owners on one side of the table. The owners' interests were not congruent. Some wanted a "big win" over the union which would then allow them to market their franchises at a better price. Others just wanted to play the game. Each game missed meant a significant loss of revenue. It was David Stern's job to try to cobble together a majority out of this mix, not an easy task.

The NBA players also have divergent interests. Players with high salaries and long-term contracts do not share the concerns of marginal players on ten-day contracts. The Players Association seemed to be able to bridge these differences until it needed to call the NBA's bluff and move towards decertification and antitrust litigation.

By comparison, the pros at the bargaining table in baseball -- Mike Weiner for the Union and Rob Manfred for management -- now have hammered out their third contract in a row without a work stoppage. They have moved towards "partnership bargaining." That does not mean that negotiations are quick and easy. They deal with difficult issues, but the parties do so quietly, without public posturing, and in full recognition of the legitimate, albeit conflicting, interests of the folks across the table. Anyone who thought that baseball would enter an "Era of Good Feelings" after the 1994-95 debacle either had remarkable foresight, or was just nuts.

The negotiators in baseball have made their enterprise more interesting through the bargaining process. We don't know the details of the money and revenue sharing provisions, but adding an additional wild card qualifier in each league is good news for the fans. This gives more teams at least the glimmer of hope of making it to the post-season, while, at the same time, makes winning a division more meaningful since the wild cards now only get a single-game guarantee. I am sure many will be hoping for a repeat of the excitement generated by Bobby Thomson's dramatic walk-off home run in the Giants-Dodgers one-game playoff in 1951.

The basketball negotiation once again demonstrated the importance of personalities at the bargaining table. Negotiating is a very human process, and the word is that management negotiators had problems dealing with Jeffrey Kessler. Jeff is a terrific union-side lawyer, perhaps the most important strategist on the players' side in professional sports. For whatever reason, the NBA trade association (or whatever it was called during its brief lifespan) found it advantageous to bring in new counsel to make the deal. That is not unusual in collective bargaining.

It was also quite foreseeable that the bargain would ultimately be reached at 3 a.m. Negotiators are people too. They get tired, and these long, drawn-out negotiations were exhausting. As a labor arbitrator, I often see the product of these 3 a.m. bargaining sessions years later when a dispute arises about what the parties actually intended when they reached their deal. They write things down, but are too tired to dot every "i" and cross every "t." This leaves some work for arbitrators to do, filing in the gaps left by the negotiators.

Much to just about everyone's surprise, all three negotiations this year -- NFL, NBA and MLB -- ended successfully in agreements. The NFL and MLB missed no meaningful games, and the NBA will be everyone's all-day-long Christmas present. There was lots of frustration along the way, but the deals were made. We now have almost a year until the National Hockey League collective bargaining agreement expires, and so there is no need to worry, at least not yet.