Deadlines, real and invented, are often used in negotiations, but can be particularly relevant in sport, given its time-sensitive nature

Deadlines, real and invented, are often used in negotiations. Deadlines can be particularly relevant in sport, however, given its time-sensitive nature.

Some interesting lessons may be learned from the recent strike that disrupted the US National Basketball Association season. A strike that had lasted 149 days and had seriously disrupted the basketball season ended last November, allowing a shortened season to start on Christmas Day. Both parties in the negotiations, the team owners on the one hand and the NBA Players Association on the other, sought to use the time pressures to their advantage.

The previously negotiated collective bargaining agreement, which governed the players’ earnings, expired at the end of June 2011. Initial negotiations were unsuccessful. The pre-season training camp during September and initial pre-season training games in October were cancelled as negotiators failed to make any headway. During October, the NBA announced the cancellation of the entire pre-season. Neither party regarded the pre-season training and games as a hard deadline.

The first deadline

A mediation was arranged for 18 October. In advance of the mediation, the NBA stated publicly that the popular Christmas Day games would be at risk if the mediation failed. The announcement was regarded as an attempt to persuade players of the dangerous nature of their predicament. Unfortunately for the NBA, the NBA Players Association did not treat the unilateral deadline seriously. They did not accept that the deadline was credible or realistic. They ignored it. The mediation duly failed, but the NBA only cancelled the start of the season, up to the end of November. Although the season was being disrupted, the Christmas Day games were not cancelled. The threat turned out to be an empty one.

The second deadline

Following another failed mediation on 6 November, the NBA issued a more specific deadline. The players were given four days to accept the league’s final offer. If this offer was not accepted, the league would replace it with a lower offer. The discussions on the offer, however, lasted well past the four day deadline. In fact, the NBA Players Association ultimately rejected the offer eight days after it was made, with no lower offer ever having been made. The NBA had failed to enforce another unilateral deadline.

The real deadline

The league cancelled all games up to 15 December. Negotiations stalled and the prospect of cancellation of the entire season, which would of course be very unpopular with the sport’s fans, sponsors and stakeholders, loomed large. The increasing reality of the loss of the entire season led to a change in approach. The NBA Players Association appointed a new chief negotiator.Impetus was injected into the negotiations. Some 10 days after the league’s “final offer” had been rejected, after a 15 hour negotiating session an agreement was reached.

In the aftermath it became clear that a real, credible and shared deadline – the threat of the loss of the season and driving fans and sponsors away from the sport – had persuaded both parties to compromise and agree a new deal. The real deadline allowed the league to regain some control in the negotiations, having lost control as a result of the previous two unilateral deadlines.

Some lessons?

Some lessons can be learned from the NBA negotiations.

First, if a deadline is to be used, it should be credible. The NBA Players Association had simply not believed in either of the first two deadlines threatened by the league. For a deadline to be effective, the other party has to believe that it will be followed through. A clear rationale for, or the evidence behind, the deadline will assist.

Secondly, it may be a mistake to conceal a true deadline. There is a school of thought that says that disclosing a deadline will put a party at a disadvantage. Since a true deadline impacts on both parties to a negotiation, however, more often than not disclosure will assist to progress the negotiation.

Thirdly, analyse the impact on each party of the deadline passing. Both parties in the NBA negotiation understood the catastrophic effect that cancellation of the season would have on each of them. The impact of a deadline passing may provide useful leverage to persuade parties to make concessions to reach agreement.

And another thing…

One of the issues facing the parties in sports disputes is locating sports persons or agents, given how often they move during their career. A recent decision of the High Court, which suggests that proceedings in England may be served using Facebook, is worth keeping under review. Although the writer is not aware of any similar precedent in Scotland, the advantages are obvious, particularly given how active many sportspersons are on Facebook and similar social media.

The Author
Michael Nicholson, Partner, Harper Macleod LLP  
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