Philadelphia, PA – On a day where Major League Baseball is set to unveil a new labor deal, one secured with little acrimony, those holding out hope that David Stern and David Boies were going to sit down and hammer things out over Thanksgiving dinner are sorely mistaken.
A suit filed last week in the Northern District of California, which included Kevin Durant, Carmelo Anthony and Chauncey Billups among its plaintiffs, was discontinued without prejudice on Monday as those players and several others were added to the lawsuit filed last week in a Minneapolis court.
The move was simple strategy by Boies, the high-powered attorney who once represented Al Gore against George W. Bush in the 2000 U.S. presidential election and now is handling the NBA players' complaints. He was hoping to take advantage of a court that has been universally described as labor friendly.
The action was not lost on the owners and their legal team.
"We assume that [David] Boies was not happy with either the reassignment of the case from Oakland to San Francisco or the fact that the new judge scheduled the first conference for March 2012," NBA Executive Vice President and General Counsel Rick Buchanan said in a statement. "This is consistent with Mr. Boies' inappropriate shopping for a forum that he can only hope will be friendlier to his baseless legal claims."
Whatever horse you back in this race, it's hard not to be skeptical of anything Boies has done. The guy is the living embodiment of why most people in our country look down on the legal profession.
Q: What do you call 5000 dead lawyers at the bottom of the ocean?
A: A good start.
A brilliant litigator, Boies was part of the legal team representing the National Football League in their recent antitrust litigation against the players, Now he's representing the NBA players and joining forces with Jeffrey Kessler, the same guy who opposed him as a representative for the players in the 2011 NFL lockout.
Sure the cases are not quite mirror images but it's hard to sell the fact that Boies really believed the NFL owners were right when they locked out their players and now is convinced that the NBA players are being wronged.
To be blunt, Boies is a hired gun and at the end of the day he's going to do what's best for David Boies -- not necessarily a bad thing if he's on your side.
Q: How do you tell if it is really cold outside?
A: A lawyer has his hands in his own pockets.
In this case, however, I can see Boies trying to extend things. The former Time Magazine Lawyer of the Year is already on record saying that the end game here is still negotiation, not litigation, yet the next negotiating session between the owners and players has not been scheduled and likely won't be until a court orders it.
So what goes on when things are dark? Well the players are not getting paychecks. Neither are all the ancillary people on a game night -- arena workers, cops, parking attendants, bar owners and restaurateurs to name a few.
The lawyers, however, most assuredly are getting paid and paid well. ESPN has reported that the NBPA is withholding licensing fees from the players to pay for Boies and his firm to represent them, a fee that has been pegged at about $1,000 per hour.
Q: Santa Claus, the tooth fairy, an honest lawyer, and an old drunk were walking along when they simultaneously spotted a hundred-dollar bill laying in the street. Who gets it?
A:The old drunk, of course, the other three are fairytales.
So what's Boies' motivation to get this done and get it done quickly? Reputation? Loyalty to his clients?
Remember the union went the sham disclaimer of interest route without taking a full vote from the rank-and-file, many of who are feeling the brunt of missing one payday already.
Boies is well aware that a majority of NBA players would like to get back to work, yet he's refused to call Jeffrey Mishkin, the outside counsel for Stern and the owners.
"Some lawyers say to pick up the phone is a sign of weakness," Boies said when briefing reporters on Monday. "But if you're weak, you're weak, and if you're strong, you're strong. It doesn't make you weak or strong by your calling or not calling. On the other hand, until they're prepared to say something other than what they just put out in this statement, the question is, why are you calling?"
Evidently being a great lawyer involves mastering the argumentative skills of the average 12-year-old.
Over the next few weeks you can expect court-ordered mandated mediation to give both sides yet another chance to settle their differences -- differences that will magically disappear once Boies decides he's gotten all he can out of the players.
Q: How does an attorney sleep?
A: First he lies on one side and then on the other.