What does "negotiating in good faith" mean to you?

[Roy H.]

I've heard the term "The owners aren't negotiating in good faith" thrown around a lot lately, both by fans and by the Player's Association. 

Here's how I understand the situation:

* The NBA wants a bigger slice of revenue, and they want to make large changes to the structure of the league's salary cap system;

* The players will give up some revenue, but won't even discuss a change in the league's salary cap system (including changes to cap exceptions).

Both sides have made tweaks to their proposals over time, and both have shown some movement in terms of revenue.  However, neither has changed their position one iota on the "core" issue:  the salary cap system. 

In order to show "good faith", do the sides have to meet in the middle?  Do they both have to compromise off their position?  Is the only way the owners can show "good faith" to agree to a better system, but not the one they're hoping for?

Both in the NBA negotiations and in Washington, D.C., we hear a lot about the need for compromise, the fact that sides don't negotiate in good faith, etc.  My thought on that is, it's bull.  Sometimes, parties that are negotiating have a bottom line, and no amount of good faith negotiating will be successful if the other side doesn't capitulate to that bottom line.  There's not always a middle ground that works for all parties, and the failure to meet somewhere in the middle doesn't constitute bad faith. 

In this case, the owners feel that a hard cap system is their bottom line, and the players feel the opposite (i.e., that the current system of cap exceptions needs to stay in place).  Neither are being unreasonable by sticking to their guns, and neither are necessarily acting in bad faith.  Now, ultimately, they each cave a bit in their demands, or one side or the other may completely collapse.  However, at present the failure to reach a compromise is in no way one of bad faith.  Sometimes, well-intentioned parties simply can't agree.

[BballTim]

  I was expecting that someone else had started this thread, and that you'd be chiming in with an opinion, or a brief explanation of the legal definition.

  I would say that, in this case, negotiating in bad faith would mean that they have no interest in negotiating. If you want to reach a settlement and are willing to compromise to some extent then you're negotiating in good faith, if you don't want to reach a settlement or are unwilling to make any compromises significant enough to lead to an agreement then you're negotiating in bad faith.

[Cman]

I hear the term "not negotiating in good faith" thrown around a lot and for the most part I think it is pretty meaningless.

I could imagine certain situations where it might have meaning, but i have to work to construct them.

[KGs Knee]

I'll start by saying I think this is a well articulated opinion.  Most of it I think is fairly accurate as well.

Generally, yes I do equate "negotiating in good faith" with being willing to compromise with the other side.  But this does not have to be exclusive.  I agree with your assertion that in certain circumstances, one just can not compromise if they feel their position is abolutely necessary, and this would still be considered "in good faith".

There is another component to "negotiating in good faith" though, in my opinion.  One must also be honest in stating their side of the arguement.  This means you can not claim something to be necessary, when it in fact is not.  I suppose this is harder to prove though, as it is difficult to know if one is being disingenuous, or honestly does believe what they are saying.

Ultimately, the reason I feel the owners have been "negotiating in bad faith" is due to a couple reasons.

First, I do not believe their demands are necessary for survival of the game or for the owners to be more profiable.  I just don't think the numbers support their position.

Secondly, I don't think the owners are being honest about their financial numbers anyways.  This is the harder to prove aspect though.

Both of the above reasons lead to why I think the owners should be willing to compromise with the players and thus completing the trifecta of reasons I believe they are "negotiating in bad faith".

[fairweatherfan]

Both in the NBA negotiations and in Washington, D.C., we hear a lot about the need for compromise, the fact that sides don't negotiate in good faith, etc.  My thought on that is, it's bull.  Sometimes, parties that are negotiating have a bottom line, and no amount of good faith negotiating will be successful if the other side doesn't capitulate to that bottom line.  There's not always a middle ground that works for all parties, and the failure to meet somewhere in the middle doesn't constitute bad faith. 

Well, negotiation generally has a connotation of some degree of compromise.  A negotiation with no movement from one side is basically just a list of demands.

But I'd say "bad faith" negotiation also hinges on whether the sides are being reasonably honest.  There'll always be some skewing and omission, but outright misrepresentation of your position to gain an advantage is usually seen as bad faith. 

For hypothetical example, if the owners ask the players to move on contract length, and say they'll make some concessions in return, but then fail to live up to their end, that's negotiating in bad faith.  Or, if the players say they might be willing to accept a hard cap, the owners tell the media that a hard cap looks more likely, then the players attack them in the media for lying, that'd be bad faith as well in my opinion.

Long story short, I think that the owners have used their position of power to negotiate in bad faith - misrepresenting both the extent of their financial issues and their willingness to compromise to milk concessions out of the players.  I don't think anybody who's not in that room knows for sure, though.

[Master Po]

"One should always play fair when one has the winning cards."

[Moranis]

I don't believe the owners are negotiating in good faith.  The wholesale changes with the gigantic change in the split of revenue is way over the top.  Couple that with my belief that the two things are being asked for for different and contrary reasons, I think it is a difficult spot to be in (a hard cap is not necessary for profitability, but helps to level the playing field - two different goals that are contrary to the stated purpose).

[Roy H.]

I don't believe the owners are negotiating in good faith.  The wholesale changes with the gigantic change in the split of revenue is way over the top.  Couple that with my belief that the two things are being asked for for different and contrary reasons, I think it is a difficult spot to be in (a hard cap is not necessary for profitability, but helps to level the playing field - two different goals that are contrary to the stated purpose).

I'm not following you.  How are profitability (for the league as a whole) and competitive balance contrary to one another?

[Moranis]

I don't believe the owners are negotiating in good faith.  The wholesale changes with the gigantic change in the split of revenue is way over the top.  Couple that with my belief that the two things are being asked for for different and contrary reasons, I think it is a difficult spot to be in (a hard cap is not necessary for profitability, but helps to level the playing field - two different goals that are contrary to the stated purpose).

I'm not following you.  How are profitability (for the league as a whole) and competitive balance contrary to one another?

They are in this instance because of the manner in which certain owners are proceeding. 

[Fan from VT]

I consider "bad faith negotiations" in this case to be presenting your side without full honest consideration of what has led to this point.

For instance:
-For those who bought their franchises before 1999, this CBA is much more favorable toward owners than the previous one. Did you agree to a money losing CBA in 1999 or are you somehow losing money now when interest and ratings are much higher than before? Or are you doing something different?

-For those who bought their franchises later, be honest about why: Did you, as a successful billionaire, misread the situation and somehow think you were buying into a cash cow? Or is it basically a giant yacht that gets more press and is much more fun, and you are now trying to massively change the system because you can, not because you need to?

-Be honest about why there always seems to be an ownership group ready to purchase an available franchise, and if so, why, if the system is so unprofitable, you don't just sell instead of trying to make massive changes.

-Be honest about what you are and how lucky you are: your league has massive antitrust exemptions and major tax exemptions and is seen financially as a non-profit organization. If you want to keep those things, you need to be much more open about what has changed to suddenly require massive overhaul, and where this new money the league would get is supposed to go.

Basically, in a league that is a self contained massive entity with major financial protections and completely voluntary entry with people still wanting to buy in despite knowing exactly what the deal is (because this is as fun for many owners as it is fans of fantasy sports) I think good faith negotiating - from both sides - would be to sit down with all the dollars on the table, all the books on the table, to figure out a true middle ground that makes logical sense and is fair for all people. Or, barring that, a stepwise progression toward such a goal, with reasonable clauses and conditions for changes due to changing circumstances (for instance, i think it is bad faith to try to lock in a deal that goes significantly beyond a new TV deal with no chance for tweaking the structure at that time).

[Eja117]

http://www.youtube.com/watch?v=E5gwc4UizUc&feature=related

In this case, which is far more stressful than I remember it, WIlliam Macy is negotiating in bad faith. He has "offered" something, which is not important to the other person, and never really intended to make the deal that was bargained for, but attempted to make him think he did.

Further when the owners say "We're losing money and it's your fault" and the players say "Ok. Let's open the books and see" and the owners say "No way. Trust us." That's bad faith too. Then if they open the books and it can be seen that owner's nephews are drawing 100K salaries and they're using the money for other side investments not really related to the NBA (like maybe the WNBA or something obscure in China) then they aren't really negotiating in good faith there either.

[action781]

Both in the NBA negotiations and in Washington, D.C., we hear a lot about the need for compromise, the fact that sides don't negotiate in good faith, etc.  My thought on that is, it's bull.  Sometimes, parties that are negotiating have a bottom line, and no amount of good faith negotiating will be successful if the other side doesn't capitulate to that bottom line.  There's not always a middle ground that works for all parties, and the failure to meet somewhere in the middle doesn't constitute bad faith. 

In this case, the owners feel that a hard cap system is their bottom line, and the players feel the opposite (i.e., that the current system of cap exceptions needs to stay in place).  Neither are being unreasonable by sticking to their guns, and neither are necessarily acting in bad faith.  Now, ultimately, they each cave a bit in their demands, or one side or the other may completely collapse.  However, at present the failure to reach a compromise is in no way one of bad faith.  Sometimes, well-intentioned parties simply can't agree.

If a side is completely unwilling to budge from a bottom line, then they should say, "Here are our demands, you must meet them, or else we need not talk."  Not, "Let's have a meeting and negotiate."  Negotiate means compromise.  So, if you agree to "negotiate" but don't budge from that bottom line, then you are not negotiating in good faith.

Also, if one side says "Sorry, we absolutely cannot budge from this demand.  We won't compromise this at all." but ultimately, they do budge from it, then I would say they were initially negotiating in bad faith.  Here is why I think they are currently negotiating in bad faith:  What if the NBA players agree to never return to the NBA unless some middle ground is reached.  A missed season goes by and we're on the brink of missing a second... Do the NBA owners eventually give up that demand to bring the players back?  I think yes.  That's why I think they are currently negotiating in bad faith by not currently being willing to compromise on issues they may be willing to compromise on later as a strategy to "win the war" rather than reach a fair compromise.

[Roy H.]

Also, if one side says "Sorry, we absolutely cannot budge from this demand.  We won't compromise this at all." but ultimately, they do budge from it, then I would say they were initially negotiating in bad faith. 

I'm not sure that I agree on this.  In a negotiation, facts sometimes change, causing you to re-evaluate your position.  Also, there's a lot of posturing, even in a good faith negotiation.  If you weren't allowed to be coy about your bottom line figure / walk-away point, there would be no need for negotiation in the first place.

[action781]

Also, if one side says "Sorry, we absolutely cannot budge from this demand.  We won't compromise this at all." but ultimately, they do budge from it, then I would say they were initially negotiating in bad faith. 

I'm not sure that I agree on this.  In a negotiation, facts sometimes change, causing you to re-evaluate your position.  Also, there's a lot of posturing, even in a good faith negotiation.  If you weren't allowed to be coy about your bottom line figure / walk-away point, there would be no need for negotiation in the first place.

OK, I'd say that is pretty clearly true if facts do change, but facts don't always change and the idea of facts changing wasn't part of my premise.  I feel like saying that you cannot change your position, then changing your position without facts changing shows that you were employing a bullying tactic in an attempt to get a bigger piece of the pie.  That's OK in the early stages, but that's what I find to be bad faith negotiating in what should be the culminating stages of negotiation.

You're right about the whole process of negotiation.  So, then to determine what is considered good faith negotiation and what isn't, a few things need to be considered:

1.  What each side truly wants
2.  How reasonable is what they want
3.  How much are the willing to compromise from what they want

From reading your other posts on this issue, I think that we differ in one key part -- how reasonable is what the owners want.  You have mentioned a few times how fans are favoring the players because they look like they are making all the concessions and the owners making demands because the players starting point is the current system.  I understand and agree that clouds a more true perspective of the situation.  But I think that the owners should be making far more concessions because I think the players starting point is much more reasonable than the owners starting point.*  I think that's where we fundamentally disagree.

*My reason for thinking this is because the players' starting point is a system that worked for many years as recently as just a few years ago.  Even if the economics of owning a team has changed, how drastically could it have really changed over the past few years?  I think not much, which makes me think the system does not need to be changed drastically.

[Q_FBE]

Negotiating is all about compromise to get a deal done. Whether it is a grunt like me who traded in some cash compensation to get some benefits (paid health care and earned time off) to keep working in my field or it is a professional multimillionaire athlete negotiating with a billionaire owner, we all need to find acceptable conditions of employment to survive and thrive.

And most importantly those Edited.  Profanity and masked profanity are against forum rules and may result in discipline.s in Washington we elect to serve our country need to put their corporate pig headed political agendas aside and solve problems this country has.