NEW YORK — The next logical step in the illogical NBA lockout is for David Boies to call Jeffrey Mishkin, or for Jeffrey Mishkin to call David Boies.
The latter attorney, Boies, who represented Al Gore against George W. Bush in the 2000 U.S. presidential election, now represents NBA players, and Mishkin is the outside counsel for NBA commissioner David Stern and the owners.
It would take approximately 2 minutes for their secretaries to put that call together.
And after obfuscating and posturing for the better part of an hour in a meeting with reporters Monday night, Boies finally yielded to the relentless logical questioning of yours truly, put his hands to his temples for 13 seconds and then said he may just go ahead and make that phone call sometime in the next day or two.
“Some lawyers say to pick up the phone is a sign of weakness,” Boies said. “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?”
This particular episode of peacocking … oops, I mean news briefing … was designed to be a show of strength from the players’ new lead attorney, an epic billable hour ($1,225 is Boies’ going rate) of rhetorical posturing about how the NBA owners are now in really, really big trouble because they are leaving themselves open for triple damages — about $6 billion if the entire 2011-12 season is missed.
Boies announced that two separate players’ lawsuits were being combined, with a new suit being filed in Minnesota, the same jurisdiction — covered by the 8th Circuit in the Court of Appeals — where the NFL players had their temporary restraining order ending the NFL lockout overturned.
“I suspect that we will hear from them, either in settlement discussions or litigation. They are going to have to answer the complaint, and were looking forward to engaging them,” Boies said. ”If this is a matter that can be settled, we’re prepared to do that. If the league’s approach is to ignore this litigation and try to go into a state of denial and hope it goes away, I think that will be not in anyone’s interest.”
With former union director Billy Hunter sitting alongside him, the players’ new lead advocate said combining the complaints was the best way to expedite the case, to which I strenuously objected. Yes, I understand that it is probably incumbent upon the owners to pick up the phone first, since it is bad form for an attorney to sue someone and then call them up to ask if they’d like to settle.
But the NBA owners have gone mum, and at a certain point it can do no harm to make an exploratory call to the people you just filed suit against. It might not be the traditional thing to do, but it wouldn’t be the worst thing, either.
So I made the decision to argue the point with Boies (who had recounted in a casual conversation before the news briefing began that Supreme Court justices Anthony Kennedy and Sandra Day O’Connor were the ones who swung the election to Bush in 2000 when they halted the recount in Florida).
Sheridan: “What kind of settlement discussions, if any, have taken place so far?”
Sheridan: “Has there been any contact between the two sides?”
Boise: “Not yet. Nope.”
Sheridan: “Why is that?”
Boise: “I think they made it pretty clear, especially with the statement they just made, that they have no interest in talking to us. It takes two people to negotiate. You heard me say six days ago that I thought this is the kind of case that people ought to try to resolve. And the response from the owners is to say this is a baseless litigation that they’re going to ignore. It takes two people to make a deal.”
Sheridan: “Why not call them?”
Boise: “Billy tried, Billy could tell you how long he tried to get them to negotiate. Frankly, if instead of getting a response that said ‘This is baseless litigation and it ought to go away,’ if they recognized the interest in the game and the interest of the fans, I’d give them a call right now if I had someone to call. If they had the same attitude that we told you six days ago, that this is a lawsuit that ought to be resolved, if that was their attitude, too, I’d be happy to give them a call. If we’re standing on ceremony, if this is a question of who calls whom, I don’t have any problem with being the person that makes the first call. But to call in the face of the kind of treatment that Billy and his people got, and the kind of treatment that is evidenced by the statement they just put out, there isn’t any case in making a call.”
I was not satisfied.
And frankly, I am so dissatisfied with his 4 1/2-month exercise in idiocy that I re-engaged him. (Boies had just finished explaining why he could not, under legal ethical rules, contact Stern directly. But he did concede that he could contact Mishkin as long as Mishkin will be the lead outside counsel for the NBA in this case).
Sheridan: “So if there’s a call to be made, you could make it, or Jeff Mishkin could make it. Can we agree on that?”
Boies: “I think either one of us could make it. I think before I made it, I would probably call him and say I assume you are representing the owners in this lawsuit. If he said no, then I would say ‘Do you know who is representing them?’ And I would call that person.”
Sheridan: “If I may play devil’s advocate, wouldn’t that speed up the process more than filing a new lawsuit?”
Boise: “Only if they want to talk. I could make all the calls in the world … “
Sheridan: “But you haven’t.”
Boise: “And the reason I haven’t is because of that statement (the public statement made by the NBA) and the statements they made to Billy. And in the face of someone saying ‘I don’t want to talk to you, we’ve got an offer, take it or leave it, this is the ultimatum, we’re going to make no more proposals, and somebody saying this is baseless, it ought to go away,’ that’s a waste of time for someone to make a telephone call.”
The meeting adjourned not too long after that, but Boise stuck around and continued talking.
My point in arguing with him, I said while thanking him for allowing me to argue with him, is people do not want to hear that the owners are now compelled to respond within the next three weeks. They want action NOW.
Everyone around the NBA, including Stern, Hunter, Boies, Mishkin, Jeffrey Kessler (conspicuously absent for the second straight Boies news conference) and the fans who have been following the lockout closely, realizes that the sides are close enough (or at least they were less than two weeks ago) that the remaining differences can be settled in a matter of a few hours, if not minutes.
Nobody wants to hear anything resembling revelry over the fact that the owners must now file a court brief by Dec. 5, which is what Boies was selling.
People want to know when this thing will be settled, and they are growing impatient. Boise again made the point about the league’s public statement, and I countered by saying that was merely posturing for public consumption.
Sheridan: “That was spin. If you call Mishkin, you can talk turkey.
Boies: “I don’t have that sense, but … (13 second pause) … I suppose it couldn’t hurt for me to call him. You know, I suppose it couldn’t hurt for me to call him. Ask me that Wednesday.
Wednesday? Why Wednesday? Is there something happening Tuesday that would necessitate me speaking to Boies on Wednesday?
I asked him that very question later, in the lobby, and he acknowledged he was strongly considering seeing if this process can’t be fast-tracked with a phone call. And if that phone call is made, it’ll be made before the close of business Wednesday, he said.
It might end up costing him hundreds of thousands of dollars in potential billable hours, but it might help this dispute get back on track — if not toward a resolution, at least toward a renewed dialogue.
That’s the least they could do, correct?
That was my point, and hopefully Boies bought it.