By Jason Kurtyka*
Today, David Falk – a featured guest of the 2016 Jeffrey S. Moorad Sports Law Journal Symposium – manages a smaller client list than he did during the 1990’s when he was the NBA’s ultimate power broker, but he is no less influential.
As CBA talks begin to heat up again, Falk’s influence on ‘90’s labor negotiations and the NBPA are apparent on both the player and owner side of the table. Look no further than Falk’s biggest former client, Michael Jordan, now owner of the Charlotte Hornets. As Adrian Wojnarowski of The Vertical detailed last week, “Jordan is a serious voice in ongoing discussions” as a member of the owners’ labor-relations committee.
During the 1998 lockout, Jordan was on the opposite side of the table when he, now ironically, told Washington Wizards owner Abe Pollin, “[i]f you can’t make a profit, you should sell your team.”
Falk was in Jordan’s ear in 1998, acknowledging that “I’d like to think Michael spoke up partly because of our conversation the night before [the comments].”
During the 1995 and 1998-99 lockouts, Falk was a polarizing figure who steered negotiations. This perceived exertion of influence led to criticism by NBPA player representatives — “I think this whole [1995 lockout] has been manufactured by David Falk,” said former Charlotte Hornets player Kenny Gattison.
He also clashed head on with former NBA Commissioner David Stern. In 1998, Falk once called Stern out “to admit he made a mistake” during the 1995 negotiations. Stern fired back, saying, “I admit I made a mistake. But that mistake was in 1995 with the second agreement the owners entered into — because David Falk and the other agents helped submarine the luxury tax agreements.” Yet Falk always fought for the players, recognizing that the NBA was a star-centric league.
“You take Michael Jordan, Scottie Pippen and Dennis Rodman away from the Bulls, and what do you have?” Falk asked during the 1998 lockout. “A team that might not win the C.B.A. You take Stephon Marbury and Kevin Garnett and Tom Gugliotta away from Minnesota, and what do you have left? Not much.”
Today’s NBA generates more revenue than ever before and its franchise have never seen higher valuations. The basketball related income (“BRI”) up for grabs is about to balloon after the NBA inked a nine year, $24 billion TV contract with ESPN and Turner. The boost to BRI will expand the salary cap to new heights, allowing the stars to command larger contracts.
As the current CBA’s opt out date approaches (December 15th), this point of negotiation has not been lost on the players, either. Last time around, in 2011, the players agreed to a seven percent cut in shared revenue. This perceived loss (along with other improprieties) cost former National Basketball Players Association Executive Director Billy Hunter his job.
Following his dismissal, Falk was critical of the job Hunter had done. When asked by USA TODAY Sports about Hunter’s legacy of creating a “strong middle class (of NBA contracts),” Falk responded “that he accepted a max so that he could allow the middle players to earn way more money and the bigger players to earn less money.”
“The problem with that arrangement,” Falk continued, “is that it’s not conducive to the growth of the game. Fans don’t come to see the 13th guy on the team or even the ninth. This is a star-driven league.”
The demise of the Hunter era was followed by former NBPA President Derek Fisher passing the torch to Chris Paul. Paul, who is considered the first “star” to hold the post since Patrick Ewing (a Falk client), was tasked when finding a new Executive Director. Paul and the players ultimately hired Michele Roberts. Roberts began her tenure with anything but a unified group of players, however.
“I was meeting players who were prepared to believe [in the Union], said Roberts. “But, it was clear I had to earn their respect. So first and foremost, my priority was to get in as many locker rooms as I could. I’ve gone from getting virtually no phone calls at all from players, to now getting half a dozen calls from players every week.”
There may have not been a bigger call than the one LeBron James placed to Roberts informing her that he intended to become the Vice President of the NBPA.
It is clear the players know what is at stake now. Stephen Curry and Carmelo Anthony have since joined Paul and James as Vice Presidents, rounding out the NBPA’s star-studded lineup.
“It’s mind-boggling to me that people think that the players make too much,” Roberts told ESPN The Magazine. “There would be no money if not for the players. Let’s call it what it is. There. Would. Be. No. Money. If not for the players. They create the game.”
The current NBPA regime is echoing the same sentiment Falk did during the ‘90’s, now flanked with as much star power as it has ever had. Falk’s legacy as a tenacious player advocate now lives on. Not through the players’ representatives, but through the players themselves. At the height of its popularity, the NBA has never had a group of self-aware star players as it does now. Whatever the product of the current CBA negotiations may be, the fact remains that players now realize the power they possess and the realization is, in part, a result of Falk’s influence.
*Staff Writer, Villanova University Sports and Entertainment Law Society Blog; J.D. Candidate, May 2018, Villanova University School of Law.
 Adrian Wojnarowski, Now Starring in NBA’s Labor Talks with Union: Michael Jordan, The Vertical (March 21, 2016), http://sports.yahoo.com/news/michael-jordan-an-emerging-voice-in-labor-talks-194726362.html.
 Mike Wise, Agent Exerts Influence on Talks with NBA, New York Times (October 31, 1998), http://www.nytimes.com/1998/10/31/sports/pro-basketball-agent-exerts-influence-on-talks-with-nba.html.
 Ron Green, Jr., Former Hornet Gattison Blames Jordan’s Agent for Lockout, Knight-Ridder/Tribune News Service (July 1, 1995).
 Mike Wise, Agent Exerts Influence on Talks with NBA.
 Mike Wise, Is Falk Calling the Shots for the Players in NBA Talks?, New York Times (Dec. 28, 1998), http://www.nytimes.com/1998/12/28/sports/pro-basketball-is-falk-calling-the-shots-for-players-in-nba-talks.html.
 See Kurt Streeter, Players’ Union President Chris Paul won’t be Played by the NBA,” ESPN The Magazine, (October 2, 2015), http://espn.go.com/nba/story/_/id/13734992/clippers-guard-chris-paul-not-played-adam-silver-nba.
 BRI is essentially a calculation of each team’s aggregate operating revenue derived from “NBA-related activities,” which includes the licensing of broadcast rights. BRI is a primary component of the salary cap equation. See NBA Collective Bargaining Agreement, Article VII, §§ 1, 2 (Dec. 2011).
 See Jeff Zillgitt, Billy Hunter Fired by NBA Players Union, USA TODAY Sports (February 16, 2013), http://www.usatoday.com/story/sports/nba/2013/02/16/billy-hunter-fired-players-union-nbpa-executive-director/1924969/.
 Jeff Zillgitt, Jordan’s agent has bold advice for the NBPA, USA TODAY Sports, February 18, 2013. http://www.usatoday.com/story/sports/nba/2013/02/17/nbpa-nba-david-falk/1922305/.
 Adrian Wojnarowski, The Vertical Podcast with Woj, The Vertical (March 16, 2016), http://sports.yahoo.com/news/the-vertical-podcast-with-woj–michele-roberts-140126051.html.
 See NBPA Leadership, NBPA.com http://nbpa.com/leadership/.
 See id.
 Pablo Torre, The Woman Who Will Change Sports, ESPN The Magazine (Nov. 16, 2014), http://espn.go.com/nba/story/_/id/11874609/woman-change-sports.