What would a lawyer handling child custody cases and divorces at the Vista, North County courthouse know about how to settle the National Basketball Association’s lockout of the players, and possibly save the 2011-2012 NBA season?

Plenty. As a basketball fan and as a Carlsbad divorce attorney and mediator, I simply cringe when I see statements from Billy Hunter or David Stern. I see parties hopelessly polarized, stuck in their “positions,” and willing to endure losses far greater than any gains they could “force” through litigation.

When couples with children divorce, they can become similarly polarized, as they hire agressive divorce lawyers to punish their spouse. Whether you’re married and divorcing, or whether your other parent was your parnter and you’re breaking up, the lesson to be learned here is that a skilled mediator, specializing in child support, child custody and property issues, can mean the difference between success and failure.

Let’s apply the principles of a certified mediator or a lawyer specializing in divorce or child custody to the NBA situation. Even if you don’t use a mediator, this example shows the pitfalls of trying to negotiate on your own.


What jumps out from the numerous press accounts of the lockout is the zero-sum, win-lose nature of the negotiations. In my divorce and child custody cases, I try to shift the parties’ stance from a win-lose to a win-win paradigm (see Steven Covey’s book The Seven Habits of Highly Effective People).

NBA Commissioner David Stern has characterized the Players’ Association’s behavior as “unreasonable” and contrary to the player’s interests. He then points out all the places where the owners have compromised, such as letting go of the hard salary cap, mandatory salary reductions and shorter contracts.

The Player’s Association’s child-like posturing is typical of parties polarized by litigation. NBPA’s win-lose stance is typified by a statement from its player-president Derek Fisher: “Yesterday the owners gave us an opportunity to back down. We refused.”


Let’s see what the common intersts are between these parties, aside from splitting the revenue:

1. The players have an interest in maintaining their star power and visibility, and owners have an interest in maintaining that star power to put booties in the seats.

2. The owners are on a roll, with very successful playoff seasons for the past 3 years and increasing season ticket sales. There is huge money to be lost if the season is cancelled, and decreased value of the franchises. Players stand to lose huge money in salary and have their names fade from public attention.

3. The NBA brand will lose value, as will the value of player product endorsements, if the season is lost.

4. Players and owners alike have enormous investments at stake. The owners have invested in their teams, taking the risks inherent in any business. The players have litterally invested their lives in hours of practice and workouts, have overcome astonishingly long odds, and have foregone other professions and education to play at this level.

5. Both players and owners face competition for other entertainment outlets such as College hoops, movies, theatre or other sports.

6. Players and owners benefit from parity between the large city teams and the smaller markets (the rationale behind salary caps and luxury taxes), because even superstars need high caliber competition.

I could go on, but you get the picture. The parties here are going for “lose, lose,” saying that if you won’t come off your position (the revenue position is separated by a mere 3 percent of total revenue), we will blow up the whole deal. Add to that the costs of the many lawsuits, and you have a situation where all parties will lose much more than the value of the 3 percent revenues currently dividing the parties.

I would advise these parties immediately to call my office, or to hire a mediator with a “win-win” mentality. There are so many common interests here that this deal should be done. Either “position” is much worse than the alternative, a lost season.

And, if you are facing divorce, please do your best to stay out of court. We can help with mediation to resolve your property, child support, alamony (spousal support), child custody and visitation issues. We can help with getting more time with your kids. Let us be in the middle, not your children!

I remain …

Very truly yours,

Thomas D. Ferreira, Esq.

Disclaimer: Thomas D. Ferreira is an attorney licensed only in the State of California. The information set forth in this blog or on our websites are not intended to create an attorney-client relationship, nor are they intended as legal advice on your specific matter. This information is not intended to apply to cases or jurisdictions outside the State of California, and those viewing this information outside of California, or having business before jurisdictions outside of California, should consult a local professional or lawyer. The information in this blog is not a substitute for the advice of competent counsel, and is not intended, nor should it be construed, as a guarantee, warranty or prediction regarding the results of your legal matter.

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