SBD/November 3, 2011/Leagues and Governing Bodies

NBA Lockout Watch, Day 126: Federal Judge Reluctant To Rule On NBA Lockout

NBPA attorney Jeffrey Kessler argued that the NBA case should be tossed out
NBA attorney Jeffrey Mishkin “urged a federal judge to help end a stalemate with the NBA players union by agreeing to consider the legality of its lockout -- before players potentially file an antitrust lawsuit” as the NFLPA did during football's recent lockout, according to Chris Broussard of ESPN.com. But U.S. District Judge Paul Gardephe “expressed reluctance Wednesday to wade into the NBA's labor mess.” Mishkin in oral arguments yesterday in Manhattan said that the NBPA is “using the possibility of an antitrust fight like ‘a loaded gun’ on the negotiating table and urged Gardephe to reject the union's request to toss the league's lawsuit.” NBPA attorney Jeffrey Kessler argued that the NBA case “should be tossed out because the league was trying to get the court involved on the mere possibility there would be an antitrust fight.” Kessler: "They have no case. They're seeking to do something unprecedented, inappropriate." Mishkin said that the union “was prepared to dissolve itself, a necessary legal step before individual players could bring antitrust actions against the league in federal court.” Mishkin: "They've already collected the cards. They can do it at any moment." Gardephe did not immediately rule, but he “questioned Mishkin at length and was skeptical of his arguments, saying at one point that the NBA lawsuit contained a ‘fair amount of speculation’" (ESPN.com, 11/2). In L.A., Mike Bresnahan notes the NBA “took the added step Wednesday of asking a federal judge in New York to rule on whether decertification of the union would be considered legal.” It was a “preemptive strike, with the league hoping to show players that decertification would not allow them to claim antitrust violations and file a lawsuit against the NBA.” Although Gardephe did not rule; Bresnahan notes his comments “suggested he considered such posturing normal in labor negotiations.” Brian Cuban, Mavericks Owner Mark Cuban’s brother, on Twitter yesterday wrote, "The owners are publicly not at 51 percent but I suspect they have 1 percent in their back pocket to close this out." His post suggested that “the owners might sweeten the BRI pot” (L.A. TIMES, 11/3).

STAYING OUT OF IT: Vermont Law School Sports Law Institute Dir and legal analyst for NBA TV and SI.com Michael McCann said, "I suspect that the NLRB doesn't want to interject itself while the parties are talking. I don't think either side has a strong charge, and it's very hard to show bad-faith bargaining.” Tulane Sports Law Program Dir Gabe Feldman said, "The judge likely will take some time to rule." NBA.com’s Steve Aschburner noted the “amount of progress doesn't preclude a NLRB ruling for one side or the other.” Legally, if it found in favor of the union, the union “could seek an injunction to ban the lockout.” If it found in favor of the league, the players “would lose even more leverage” (NBA.com, 11/2). In N.Y., Frank Isola writes the “significance of the proceedings is debatable, since sources on both sides feel a labor agreement is within reach” (N.Y. DAILY NEWS, 11/3).
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