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Original Issue

Dribbling on the verge of the merge

In a deal that must affect all sports, the two basketball leagues will probably be allowed to become one—at the cost of the reserve clause

The proposal made in Congress last week that the two pro basketball leagues—the NBA and the much newer ABA—be granted exemption from antitrust laws so that they can merge may ultimately produce radical changes in the nature of all professional team sports in this country.

On the surface it appears simple enough. An amendment to an earlier bill asks Congress to allow the merger, just as it allowed the NFL and the AFL to become one pro football league in 1966. It was sponsored by Senators Roman Hruska (R., Neb.) and John (Son of Long Count) Tunney (D., Calif.) and Representative Andrew Jacobs (D., Ind.). Behind them, steering the proposal's hoped-for passage through hearings, conferences and committees, is the able former Republican Senator Thomas Kuchel of California, who was engaged by the two leagues as an expert in such affairs. But beneath the surface lies the real issue, which is not merger at all but retention of the option clause (or reserve clause, as it is known in baseball), that provocative prescriptive that binds pro athletes to the team that first signs them.

This is not to imply that merger is an idle matter. It is probably crucial to the life of the sport. Twenty-five of the 28 pro teams lost money last year, and no ABA team has ever earned a dime. Pro basketball likes to refer to itself as "the sport of the '70s" but, considering the mad bidding war for talent, the proliferation and shifting of ranchises and other assorted idiocies in the interleague war, this could be the decade in which it dies. The notion voiced by some players that only two or three clubs would fold if there is no merger is pure Pollyanna. And who is going to watch the Knicks play the Lakers 82 times a year?

The congressional sponsors have carefully emphasized that in offering their proposal they are not implying support of the option/reserve clause. What they want to assure is that pro basketball will survive long enough for Congress to consider the clause. On the other hand, the NBA Players Association, led by New York Attorney Lawrence Fleisher, is determined to fight any move toward merger that does not include elimination of option/reserve. Or so he fiercely maintains. Fleisher says flatly that merger per se does not mean a thing to the players, that they do not care whether there is one league or 100 of them so long as the players "possess the competitive right to negotiate salaries." That is, to regularly put their talents up for bidding among all teams.

If Kuchel has economics on his side, Fleisher has history on his. Pro football gained its merger privilege by assuring Congress that the players would not suffer financially. Of course, they have. Indeed, the NFL Players' Association has volunteered to rush into the fray with a compilation of their declining salaries to help save their dribbling brethren from like penury. Basketball players now collect about $45,000 a year, on the average, while the poor gridders have to get by on an average of $30,000 for their six months' work.

In a convoluted bit of logic he expressed recently on national TV, Fleisher declared blandly that the players were in no way responsible if their high salaries were causing some owners difficulties, that the owners really liked dishing out big money. "They're the ones who are determining salaries. Sure, the players are demanding high salaries, but the actual payment is being made by the owners," is the way he explained it.

If this sounds like a highly ingenious variation of stick-'em-up, the players have no lock on wheeling and dealing. One of Fleisher's most telling points is that many ABA teams, perhaps even the whole league, came into existence because the men who bought in justified a ridiculous investment on the smug assumption that they eventually would get a merger and the same congressional protection that has made all 26 pro football teams at least break-even propositions. To a lot of ABA owners the antitrust exemption would not come as a lifesaver but as the ticket for a cruise they signed on from the first. "Sure, maybe some teams are losing money," Fleisher says, "but what law says every new business must be a success?"

Anyway, Fleisher will put the reserve/option clause on trial and hope the merger is found guilty. Kuchel will put the reserve/option clause in the future and hope the merger is found acceptable. He probably has his best chances for success in the Senate, where he served 16 years and where hearings may begin in six weeks or so.

In the House the pivotal figure will be Representative Emanuel Celler (D., N.Y.), whose opposition to any privileges for the business of sport is well-established. Head of the House Judiciary Committee on antitrust matters, Celler teamed with the late Senator Estes Kefauver way back in the '50s to bottle up an all-sports bill that would have legitimized such things as the draft and the reserve/option clause. The 1966 football merger slipped past Celler only because the late Senator Everett Dirksen got some House cohorts to take it on an end run around Celler's committee; it snuck through as a rider to a tax bill. Fleisher says he feels sure that Celler will be on the players' side again.

The best guess is that the merger will pass in time to set up a common draft by next spring but that the players will earn some kind of compromise agreement so that no player will be bound to any team for, say, more than two or three years. After that, it should not be long before the courts (perhaps via the Curt Flood case) or the Congress similarly modify, or even abolish, reserve/option in all major sports.