All of those problems are minor compared to the chaos of the NBA-ABA merger and the way players continue to jump leagues. It has been a year since the leagues agreed to seek the antitrust waivers they need in order to complete the merger. The legislation, which was introduced in September, has been bottled up ever since in Senator Sam Ervin's subcommittee. The NBA Players' Association objects to the waiver because it believes that a basketball merger, like the football merger of 1965, will cut into the salary gains made during the five years of competition between the two leagues. Here Fleisher perhaps because he does not have to deal with the selfishness of individual players as he must in affairs like last week's All-Star Game has worked effectively. He has Ervin and, apparently, a large number of other legislators lined up on the players' side. Some owners expected the waiver to be reported out of the subcommittee with a positive recommendation last week. It never came, and Fleisher now says flatly, "I don't expect the bill to be reported out of subcommittee, committee or the Senate as a whole with a favorable vote. I feel confident now that we have the support we need to block it."
Regardless of whether the players or the owners win, both sides agree that no action can be expected from the full Senate until at least after the fall elections. That may be too long for some members of the ABA.
There have been reports that the younger league will be dissolved at the ABA meetings scheduled for mid-June, but notices of the demise are probably premature. More likely the league will shrink from its present 11 teams to perhaps as few as eight. The franchises most apt to fold are Pittsburgh, the Floridians, Memphis and Denver.
A far speedier solution to the merger question could come from negotiations between owners and players. Fleisher reaffirmed last week his association's stand that the players would compromise, backing the owners' request for merger legislation—thus assuring quick enactment—if the owners would agree to a new contractual relationship with their athletes which included an option clause only on rookie contracts. The commissioner also would be barred from compensating a team whose player has signed with another club after his obligations to the first had been fulfilled.
That would represent a radical change in personnel policy, which most old-line owners adamantly resist. However, some younger front-office men are at least considering it. "I can feel things starting to change," says Kentucky President Mike Storen. "I think we can deal on the issue of a one-year option with no compensation and I think some other owners are beginning to think that, too. There are still guys around griping about how they used to pay players $4,500 a year and why can't they be happy with $4,500 now. Those days are over and so maybe are the days when we can keep players with one team on a long-term basis. Those guys are going to have to get used to it."
One thing that may help them become accustomed to it is the recent federal circuit court of appeals decision which held that Billy Cunningham must honor a contract he signed with the Carolina Cougars instead of one he agreed to later with the Philadelphia 76ers—despite the fact that Cunningham had convinced lower courts that the Cougars had failed to pay him the $80,000 they owed.
The Cunningham case is the first significant contractual suit between a player and management in a long time that has gone against the athlete. Whether or not it will become a broad precedent is not yet known, but that issue should be decided soon in the cases of the most recent jumpers, Charlie Scott and Jim McDaniels. If the Cunningham ruling is applied in those suits, it could provide a solid, new basis on which the owners could negotiate with the Players' Associations over the issue of modifying the option clause. Fleisher has consistently maintained that pro basketball teams can operate by signing their best players to long-term contracts without option clauses. The owners have rejected that contention by pointing out the ease with which athletes have broken contracts in recent years. A strong implementation of the Cunningham decision could allay the owners' fears.
Considering basketball's lack of forceful leadership, even the congressional stalemate and the Cunningham case may not be enough to put all sides into a mood to work out an agreement that could send the pros back on the rise. The guidance may have to come from outside, particularly since the interests of amateur players desiring to turn pro and of the NCAA must also be taken into account. The recent proposal to create a national sports commission is a possibility but not necessarily a good one. The history of regulatory agencies has generally shown that commissions quickly become subjects of precisely those institutions they were designed to control.
Ironically, the Seattle SuperSonics, one of the most active and successful combatants in the basketball war, may have come up with a better solution. In the long complaint they prepared for the complex case involving McDaniels' jump from Carolina to Seattle, the Sonics have asked the judge to appoint a "master" to oversee the execution of his decision. A master, often a prominent retired jurist, is used in many equity suits as a rules enforcer and as a referee with wide evidence-gathering powers. He can exert pressure on all parties to work constructively with each other. If a master is appointed in the McDaniels case and proves successful, it could set a valuable example for all of basketball.
In fact, all parties could ask right now-through a consent decree that a master be appointed. Then the game would be in the hands of a strong figure unbeholden to owners or players, colleges or agents. Good candidates for the job include retired Supreme Court Chief Justice Earl Warren and retired Associate Justice Tom Clark. Shades of baseball 50 years ago and Judge Kenesaw Mountain Landis, indeed. But, considering the chaos of basketball today, it might be a perfect time once again to say here comes the judge.