Michele Roberts: 'I Wouldn't Mind Routing The League'
Claiming that these are flush times for the NBA would be like saying LeBron James is a capable player. Franchise values are growing at the rate of Jack’s Beanstalk. Television ratings remain strong—a feat in this wobbly media landscape—and the NBA remains a leader in digital strategy and global reach. Thanks largely to TV deals that run close to $3 billion a season, the salary cap is north of nine figures. So it is that a marginal player like Timofey Mozgov can make $16 million this season, while a modest starter like Memphis’s Mike Conley— who might be among the NBA’s top quartile of point guards—will make $31 million.
The business, though, is predicated on labor peace, owners and players agreeing to a wage scale and a meeting of the minds on how all that lucre—an estimated $8 billion this season—ought to be distributed. Both sides can opt out of the current collective bargaining agreement after the 2016-17 season and, like a team out to avenge an embarrassing loss, the players have made it clear that they’re looking to undo their givebacks from the last negotiation in 2011, when they went from receiving 57% of Basketball Related Income (BRI) to roughly 50%.
In the past, we've known the choreography. Owners plead operating losses and demanded cost certainty. Players disputed those numbers and noted that they were being underpaid by wealthy men able to mint money in perpetuity while NBA careers span less than a presidential administration. There were threats of strikes and lockouts and too many references to the potential homicide of a mythical golden goose. An unmistakable current of race ran through it all.
This year—so far, at least—it's been a difference dance. Adam Silver may have been part of past negotiations as David Stern’s lieutenant, but this marks his first negotiation as NBA Commissioner. And the players received an indisputable roster upgrade when they replaced the feckless (and possibly corrupt) Billy Hunter with Michele Roberts as executive director of their union.
Together, they've gotten off to a promising start. The conventional wisdom: a deal will be reached by year's end, forestalling threats of a work stoppage. Here's how Silver put it last week: "What's different is from Day 1, we both tried to establish a tonality, a process in which there would be transparency and in which there would be respect from both sides," Silver said. "Michele's word is we both agreed to be 'adults' in this process."
Raised in a South Bronx housing project, Roberts took an interest in the law after seeing too many of her brother’s friends go to jail after they were unable to afford decent representation. She would go on to become a dazzling trial lawyer who gave up a partnership at the white shoe firm Skadden Arps to take the NBAPA job. She has a modest background in sports and labor law and a modest disposition. Aside from making this clear: you underestimate her at your peril.
Jon Wertheim: You have one of the all-time great sports quotes already: “My past is littered with the bones of men who were foolish enough to think that I was someone they could sleep on.” That was a few years ago. How many more bodies have been added since you've taken on this job?
Roberts: Oh, now, now, now. None, not really. The good news is I don't know that people are underestimating me anymore. We'll see, but so far everyone is still standing.
JW: You came to this job not through this traditional labor law path, not through a sports path, but as a litigator, a criminal defense attorney. How has that played out?
Roberts: It may be hard to believe, but I actually think being a litigator—not so much being a lawyer, but being a litigator—was probably the best preparation one could have for this job. As a litigator, you have to be mindful of the fact that you have a client, an entity that you have to protect at all costs. You have to be mindful of other parties, other stakeholders, their interests in the outcome of certain events. And you have to be able to negotiate, to the extent you can, be able to work out something that is painless for the client, and then finally be able to fight if the negotiations don't pan out. That in many ways is the definition of being an executive director of a players association.
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JW: Who is your constituency?
Roberts: Well, that's pretty simple. It is every man, in this case man, that is under an NBA contract, in addition to every man who was under an NBA contract. I'm the steward of a pension plan that impacts on retired players. I have to be mindful of the fact, as well, that my guys are going to be retired players. It's not a constituency of the mere 450 players; it's frankly just about everybody that's been under contract in the league.
JW: What about the other end? What about the 17-year-old kid that's not in the bargaining unit?
Roberts: He's counting on me to make sure it won't be that he can't come in until he's 21 or 22. (He's) technically not yet a member of my union but ultimately wants to be in there, therefore I have a responsibility in some regards to make sure that entry into this game is not so prohibitive that people who deserve to be a part of the union, a part of the game, are precluded. I'm absolutely mindful of those that want to be NBA players.
JW: How do you reconcile the fact that you have this thick Collective Bargaining Agreement—you have a million and one issues—but at the end of the day, figuring out who is getting what percent of the revenues is ultimately what's going to be the scoreboard?
Roberts: The first thing everyone has to understand when we walk in the room is that this is not going to be easy, but it's going to take behaving like adults, not stamping your foot and banging on the table insisting your way or the highway, and be mindful of the fact that as much as we want to talk about what's fair and what's unfair, we're talking about men and women, for that matter, who want to maximize their profits. With patience and the willingness to do the hard work, we will get it done.
Now, some of what we have to argue about does involve dollars, and that's just raw and that's just real. But a great deal of what we have to negotiate about involves working conditions and health, life after basketball. All of that is important to the player.
Bear in mind, the average stay in the NBA for our players is just about four years. For those four years, a lot of things have to go right in order for it to be, at the end of the day, at the end of that player's life, a meaningful experience.
I'm not negotiating for guys that are going to be able to play for 20 or 30 years and continue to enjoy an income. That may not be the case for owners who can own their teams and enjoy that forever and then pass it on to their children.
I have to be mindful of a constituency that's got four years to do the best that can be done and presumably make the living that will have to last for the rest of their lives. That's hard work. It will be done because it has to be done and we're going to do it right.
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JW: What sticks out to you in the CBA as unfair or problematic that people might not know about?
Roberts: Well, everyone knows about the salary cap. I don't know that people are aware, or as aware, of how restrictive player movement is. I mean, most of us view a job as obviously something that's necessary in order to pay the bills, but we also don't view the job as a place of servitude. I probably don't want to use that word and shouldn't. But we all appreciate and enjoy the right to say, 'This doesn't work for me.' Or, 'This is fine, but this is a better opportunity.' I don't think most of us think that we are somehow required to stay at a job, especially when we think that there's a better opportunity for us elsewhere.
That's not the case when you're an NBA player. You are drafted, which is the first stage of you not being able to control your destiny of sorts. And if you're really, really good, and all of them want to be really, really good—I think they're all superb, right—but it's the players who have demonstrated that they are even above and beyond who are even more restricted. They are required to stay at that team for probably five but certainly four years. I don't think most fans appreciate how much of a difference that is in the life of an NBA player compared to their own lives.
JW: I think there's a sense that the last Collective Bargaining Agreement did not go the players' way, certainly percentage-wise. How much of your job was undoing some of the perceptions and some of the fallout from your predecessor?
Roberts: The really bad taste in the players' mouths was certainly reflected in the division of income that changed. I mean they went from having 57% of the income to a presumed 51%. So that obviously was not well received.
But the really bad taste was being locked out. I mean, these guys want to play ball. Just as the fans were agonizing about not being able to watch basketball being played, these men were agonizing about not being able to play.
No question they got hosed. They certainly lost because of that shift in income. We're talking about $2 billion that used to be on the players' side of the aisle, it shifted to the owners' side. (There's) bitter feelings about what happened.
But these men are grownups. The view is, 'Okay, that happened, what can we do going forward to make sure we don't suffer the same kinds of consequences?'
What we're doing is finding out ways to grow the pot such that, to the extent it would be the case, though it's not, teams could complain about profits being on the decline, that we could figure out a way to grow the pot such that we wouldn't have to take that kind of backseat again financially.
So it's taken some time to get some of the players onboard to appreciate that that loss does not mean that's what we can look forward to in the future. We're not going down that road again.
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JW: A hypothetical: What do you do if the bargaining unit asked you to negotiate something you're not comfortable with morally?
Roberts: I wouldn't do it. That's just Michele. I can't do something that I can't get up in the morning and look in the mirror. If they asked me to do it, I would use every ounce of my powers of persuasion to let them know that they really don't want me to go down that road, and they don't want to go down that road.
At the end of the day my obligation would be to do it, if I remain in the employ, but I wouldn't do it. That's just me.
JW: By any definition, women and minorities are underrepresented in sports management. Not even a discussion.
Roberts: No.
JW: What are the pragmatic effects of that? What is sports missing?
Roberts: Let's put it this way. I'll go to football, because that's a better example. When Ray Rice's wife was sitting in that room being interviewed by the league, with Ray Rice, I am confident there was not a woman that was involved in the decision to have that happen. Every woman that I know and have discussed this with would have immediately advised the league, 'If you must speak with her, do not speak with her at the same time that you're interviewing her husband.' I mean, I'm confident that was a decision that was made, for whatever reason, but a woman would have understood that was not the way to go.
Diversity of experience really does make for a better product, no matter what area we're talking about, whether it's sports, whether it's the law. You are doing yourself a disservice to think that like-minded people, people with the same experience, are the best route to solving a problem. It's just silly. So having women and people of color in the room, again, no matter the enterprise, is just smart.
JW: How do you describe your style in negotiating?
Roberts: First and foremost, honest. There's a modicum of trust that is critical in these and in all negotiations. There's always a little bit of grandstanding and all that, but you cannot be fundamentally dishonest.
So in order to at least have the expectation from the guys and gals on the other side of the room, I at least have to be fundamentally honest. What I try to do is make the folks in the room appreciate that I may disagree with what Michele is saying, I may even think her rationale is without merit, but she believes that, and she's not BS'ing me and she's not lying to me. I approach negotiations that way, and I insist that the guys and gals on the other side of the room do the same. Once lied to, it makes it very difficult for me to be able to figure out a way to move forward.
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JW: You and Adam Silver haven't done this dance before.
Roberts: No.
JW: How does the fact that this is the first time for both of you impact things?
Roberts: You know, I think it's an advantage. I don't have any baggage with him nor he with me. It's funny, because some of the people that are involved in these discussions have been battling for years. It's really amusing to me to see them remind each other of some of the things that they've had to contend with.
The good news is Adam obviously has been involved in negotiations before, but not as the commissioner. He's sort of debuting. Obviously, this is brand-new for me. We've almost had to learn to trust each other because we don't have any basis upon which we can do otherwise.
I want to have a good relationship with him, and I believe he wants to have a good relationship with me. So one of the ways I think we both understand we can get there is if we don't walk in with motives and expectations that will make this into another disaster.
I mean, the last few negotiations have resulted in lockouts. I credit him when he said he doesn't want to lock the players out. I believe he believes me when I say, 'We don't want to be locked out.'
The newness of it may, in fact, end up having been an advantage.
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JW: How do you perceive the relationship between the NFL and the NFLPA?
Roberts: The NFL and the NFLPA cannot get a divorce, right? They have to learn to get along. Maybe that's why I've not been married because I've always understood, you make that commitment, it's supposed to at least be for life. Now, I get that you can always get a divorce, but that's not a luxury that a union and a league have.
Frankly, for both the players and that league, I think it's a shame that they seem to be in constant combat. I would like to not always assume that any dispute I have with the NBA will probably end up in court. That's sort of my view of how things are with the NFL and the NFLPA. That's too bad because, as I say, you're going to have to live with each other, they're going to have to negotiate with each other, they're going to have to come to some agreement.
Because I don't have any ability to point fingers, but it just strikes me there's got to be a way to mend that relationship such that it's good for that game and in my view, most importantly, good for the players.
JW: When players feel they're compelled to testify against their interests, like Tom Brady in the NFL—is that something you're following?
Roberts: I follow it because I want to make sure I don't find myself ending up in the same place. The level of control that that league attempts to exert over its players is something, you know, that brings shivers up my spine. I know (DeMaurice) Smith, I think he's a fantastic guy. I've known him for many, many years. I know he's a fighter. Good thing he is because he's got a fight on his hands.
I watch very closely what his relationship with the commissioner is like and what his players are subjected to, principally as a blueprint for what I can never see happen in my game and with my players.
JW: You and DeMaurice Smith used to try cases against each other.
Roberts: We did. We did. He was all right. I was better (laughter).
JW: Where are you on wearables?
Roberts: I'm on being very, very worried about wearables. It's a science that is evolving. There are some very smart people who have some very great things to offer. I'm trying to meet with and discuss and talk to them and understand what they bring to the table.
The men I work for are very interested in what value there is in that space. I mean, these are men, as competitive as they are, that want to get better. So to the extent any of this data can improve their game and their performance, the players are certainly excited about that.
Having said that, I need, and we need, to make sure that the science is, in fact, not junk, that people aren't making assessments that are really of no value and having consequences for players.
Finally, (I'm) worried about where the data goes. I mean, let's face it, on the one hand there may be very favorable information about a player's potential or performance, but there may be unfavorable information about a player's potential performance. It may be misinterpreted. All of that can come up in the course of negotiations, contract negotiations, or rumors that are spread about a player's performance.
So beyond wanting to make sure that the science is of some value, we need to figure out ways to be able to control the flow of information, who has access to it, how it can be used, who can use it.
There's a reason for HIPAA. This country for some time has understood that health-related information is valuable and should be confidential and protected. Well, wearables are a real close cousin to that kind of information that needs to be protected.
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JW: The NFL has CTE and head injuries, this big existential issue floating above all the success. Baseball has lingering performance-enhancing drugs. What keeps you up at night? What are big issues that concern you about basketball?
Roberts: Any freak accident could happen and a player could end up being injured and it could be career-ending. That's just life. But I'll tell you, what happened last year with the death of Moses Malone and Darryl Dawkins scared me to death. While obviously they were veterans, they weren't active players. They were young men. I'm older than both of them were.
It set off alarm bells about whether there were cardiac issues that were unique to basketball players. I mean, it's a very aerobic sport, unlike baseball where you do some running, but you do a lot of standing. This is a very active and aerobic exercise. These guys are playing, running up and down courts.
We always knew about joint injuries, that's one thing. But the cardiac questions that were raised by the premature deaths of those two players frightened us.
The good news is we had a member of our staff who had already been looking at this space. As a result, what we've done is with retired players, when you're playing in the league, you're tested all the time, but once you transition out, that attention to your body is not quite the same. So what we're doing now is making available free cardiac testing to all retired players, if for no other reason to get the guys aware this is an issue they need to pay attention to.
I'm really proud of that effort. But we want to do more. And we are beginning to study even what is going on with active players to see if there are things we can put in place that are going to minimize the risks that might reveal themselves when they leave the game.
So that's our sort of the spooky man at the door.
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JW: If you look at this negotiation objectively, on the one side you see a small group of men, not depending on this asset for a paycheck. They have tax consequences—
Roberts: Very favorable tax consequences.
JW: They sometimes have public funds at their discretion. They sometimes have ancillary businesses like TV networks tied to this—
Roberts: Sure.
JW: What do you see as the sort of the systemic asset on the players' side to combat this?
Roberts: To combat it? Are you talking about leverage?
JW: Yes, what's the sort of corollary leverage on the other side?
Roberts: Well, for most of the players, none. I mean, you've got marquee players who are able to get great endorsement deals. Frankly, many of our marquee players are making more money by endorsement deals than they're being paid on their player contracts because of the salary cap.
However, the average player doesn't have anything near the kinds of additional sources of revenue that are generated by the game that the owners do.
When we all read about the Clippers being sold for $2 billion, as much as everybody uniformly hated Donald Sterling, Donald Sterling made $2 billion, given what he paid for the team. Not a single dollar of that money ended up in the players' pockets. There's no question that the players, both the Clippers as well as the players and the league overall, created that team's value.
One of the things that I want people to think about is, when they find themselves criticizing player compensation or player salaries is this. As I mentioned earlier, the average stay in the NBA is four years. Not everybody is able to play as long as Kobe, to be able to play as long as LeBron. Most guys don't, in fact. Not a single one of them ends up leaving the NBA owning a dollars' worth of the team's value. When you complain that these guys are making all this money, you know, pivot towards the teams, and remind yourself that that team that is worth billions of dollars is enjoyed by that team ownership and not any of the men that have created the value that they enjoy. That's my soapbox for now. But that's the world I inherited.
JW: Someone once told me you don't want to win a labor negotiation in a rout. Both sides have to go back to their constituents, hold up their hands, say, ‘Look what we got!’ Do you believe that?
Roberts: I wouldn't mind routing the league, I'm not going to lie to you. [Laughs] Having said that, every negotiation—most negotiations I should say—end up with each side saying, 'I wanted more or I gave away more than what I wanted to give away.' That's what the nature of negotiation is. A rout creates motives to be vengeful. Winning today may simply be winning today. One of the things that we are not doing is looking back. We're looking forward. What's helpful is realizing that what's done is done. We need to worry about tomorrow. I wouldn't sit here and lie to you and tell you I would not like to get 80% of BRI. That's a rout. But I'll settle for a fair deal.
