David Stern does not act like a plantation owner, nobody should ever argue that he does, but he assuredly sits high upon his throne, staring at his subjects from afar with condescension beaming from his eyes and a smirk, always a smirk, scarring his face. The NBA is Stern’s league, he’s governed since 1984 as the head honcho, and now, in David Boies, he might finally have met his match.
Boies has been on the NBA scene for one day, and already he stated a plan to use Stern’s own words against him. Judging by his prodigious track record, by his famed work ethic, Boies has already pored over each word Stern uttered in the past two years and will highlight every legal mistake that slipped out of Stern’s mouth. Boies is the man who beat Microsoft, the man who once said Microsoft’s bushel of lawyers didn’t scare him because they didn’t look as tired as he did, and Stern and the NBA are his latest targets.
Stern has forged a reputation recently by steamrolling everybody in his way, threatening and strong-arming the NBA’s negotiations at every turn. But Boies does not scare. Asked by Vanity Fair how he would prepare another lawyer to try a case against himself, Boies exuded self-confidence.
“You’d tell him that Boies is smarter than you may initially think, he’s more careful than you may think—don’t underestimate him,” he said. “Don’t try to play games with him, because you’re going to lose those games and make yourself look bad. He is not going to forget whether or not you’ve answered his questions.… You can’t impress him. You can’t make him mad. You can’t discourage him. You can’t embarrass him. None of the techniques you use generally to deal with people are going to work with him.”
In other words, none of Stern’s bullying tactics will work, not anymore, not now that the union has dissolved and the world’s most well-respected trial lawyer leads the players.
The NBA players are now following someone they should trust, which may or may not have been the case when Billy Hunter reigned supreme. Hunter is still technically the figurehead behind the players’ new trade association, but these negotiations have moved to the courts, where David Boies cracks the whip.
Boies is a dyslexic, did you know that? Still, he graduated second in the Yale Law School Class of 1966. When he left the Cravath law firm in 1997, the move made the New York Times’ front page. “In the legal industry, it’s like it’s 1956 and Mickey Mantle is suddenly a free agent,” Steven Brill, the founder of Court TV, said at the time. If you want to read more about Boies, I suggest you read this Vanity Fair profile from 2000. You will find that he dresses like an every-man, yet is actually anything but. He jumps from high-profile case to high-profile case, doing his job and then moving along to the next courtroom, and people who know him note that every word he says, everything he does, is calculated.
“I don’t believe anything David does is an accident,” said one lawyer who knows him well. “They say of great trial lawyers that they eliminate to the extent possible accident and uncertainty and surprise in the courtroom. David is not a great trial lawyer by accident. He has the ability to anticipate every possibility and permutation and prepare himself for it, perhaps without seeming to have done so. David thinks more moves ahead than anyone I’ve ever met.”
“To understand David, you have to understand that you may not understand him,” he concluded.
I don’t know exactly where the NBA players are going and I’m not sure exactly how they got here. You can easily argue that disclaiming interest was a tactical error, that Billy Hunter never should have let it get to this point, at least not this late in the game. Even if you choose to argue otherwise, the state of the NBA is pathetic — the league should be two weeks into its season, but instead it braces itself for legal warfare.
I don’t claim to be a lawyer and I don’t know very much about these terms I now must familiarize myself with, phrases like “summary judgment” and “the Sherman Act.” I’m not sure whether the NBA will win or lose the court proceedings, I don’t know whether owners will reopen negotiations due to fear, and I have no idea whether the disclaimer of interest is only prolonging the inevitable, which is that the players will sign a lopsided deal. These NBA labor talks have entered uncharted territory — this is the first time the players union has ever dissolved, and nobody really knows what will happen from here.
Wherever this convoluted battle goes, for better or worse, David Stern finally has a competitor equal to the task. The smirk remains, for now, but surely Boies aims to smack it off.