The NBPA yesterday rejected the league's latest CBA offer and "prepared to turn to the courts to settle the labor impasse, a move that further jeopardized" the '11-12 season, according to Michael Lee of the WASHINGTON POST. The players yesterday announced their plans "to disband in preparation for filing an antitrust lawsuit against the league." The move "touched off an exchange of forceful and ominous rhetoric in a conflict that began in July and likely will continue through at least the end of the calendar year." NBPA Exec Dir Billy Hunter said, "We’ve arrived at the conclusion that the collective bargaining process has completely broken down." The players have hired attorneys Jeffrey Kessler and David Boies "to represent them in a class-action suit against the NBA." Kessler and Boies "were on opposite sides of the NFL lawsuit earlier this year." Hunter said the pair would file the lawsuit “sometime in the next two days." Lee notes if they are "able to win the lawsuit, the players could also potentially win several billion dollars in damages" (WASHINGTON POST, 11/15). In L.A., Bresnahan & Turner note the players began the process of decertifying by filing a "disclaimer of interest," which is an "expedited version of decertification." With the disclaimer, the players "can sue the league immediately." NBPA President and Lakers G Derek Fisher said that the decision to file a disclaimer "was unanimous among player representatives for all 30 NBA teams" at yesterday's meeting in N.Y. Bresnahan & Turner note some legal experts "were surprised that the players would not file a request for an injunction, a move that might have eventually ended the lockout if a judge agreed with the motion." Then there "would have been settlement discussions between the parties under court supervision while players were hypothetically playing." Stanford Univ. Law School professor and former NLRB Chair Bill Gould said, "One theory could be that they think this would scare Stern. That's really an extraordinary gamble." Players' contracts "could be deemed void because their union decided to dissolve, though it was unlikely the NBA would take such an action." However, Stern said that owners "would not be bullied into going back to the negotiating table." Tulane Dir of Sports Law Gabe Feldman: "It's clearly an attempt by players to gain leverage. Up until now they've been playing defense." Feldman said that with the ball "in the hands of the courts, players might ultimately be forced to take a worse deal than the one presented to them now if their lawsuit is thrown out" (L.A. TIMES, 11/15).
A DICEY MOVE: In Toronto, Doug Smith writes the NBPA has "made a dicey and dangerous move aimed at causing immeasurable financial damage to the owners." There is still a "window to resume talks to salvage a season and this now puts the pressure on the owners to respond" (TORONTO STAR, 11/15). There also "is hope on the players' side that owners will react to the onslaught of litigation -- and the time and cost of a legal battle -- and ask to return to the negotiating table to work out a better deal for a new CBA (which would require re-forming the union) to save the season" (NEWSDAY, 11/15). In N.Y., Marc Berman writes, "See ya in February. That may be the soonest the NBA can tip off" (N.Y. POST, 11/15). ESPN.com's Michael Wilbon writes the labor dispute "could really get ugly now, what with legal proceedings and more games missed and more players fleeing to Europe and Asia" (ESPN.com, 11/15).
PLAYERS' POSITION: The players said yesterday that they "had no choice but to disband the union and to seek legal redress." In N.Y., Howard Beck notes they "announced their decision after a three-hour meeting" yesterday. Fisher said, "We’ve come to the conclusion today that that process has not worked for us." However, Hunter, Kessler and Boies "can continue talks with the NBA on a possible settlement while any lawsuits proceed -- assuming negotiations resume at some point." Beck notes the NBPA's decision yesterday "effectively renders moot a separate effort by dissident players and agents who were seeking to overthrow the union leadership" through decertification. That group "felt the union had already conceded too much in the course of negotiations." Feldman said that the NBA players "have a stronger case than their peers in the NFL did." Legal experts "expect the union to file suit in California, where the courts are considered more employee-friendly." That would "require another legal fight, to decide where the lawsuit should be heard." Players at the meeting yesterday said that there was "little sentiment to take the NBA’s latest offer, or to submit it to a vote of the full membership" (N.Y. TIMES, 11/15). ESPN.com's Larry Coon noted once the venue "is determined, the stage is set for the initial skirmishes over discovery and the like." The players may file a motion for summary judgment, which "could happen as early as January or February if the case is filed in New York, or somewhat later if the venue battle causes a delay." Coon noted the "real point of dissolving the union is to generate leverage." The players "don't really want to go all the way to trial -- they want to settle" (ESPN.com, 11/15). In Boston, Gary Washburn notes Hunter has "left open the possibility of the two sides coming together for a settlement, but the conventional negotiation process has ended" (BOSTON GLOBE, 11/15). But Hunter yesterday said that there is "a 'high probability' that the entire 2011-12 season will be lost because of the lengthy nature of court proceedings" (ESPN.com, 11/14).
LEGALLY SPEAKING: Kessler said of his partnership with Boies, who sat on the other side of the recent NFL CBA talks, "We’re in agreement that this lockout is unlawful. That’s a pretty powerful statement to have two former adversaries on this issue now being in complete agreement." Kessler said that in a "departure from the NFL players’ actions, NBA players are not going to seek an injunction to end the lockout but could sue to receive the triple damages that would be included with a successful antitrust claim" (BLOOMBERG NEWS, 11/15). In N.Y., Ken Belson notes after representing the NFL earlier this year, Boies "has switched sides and will now represent the NBA players." Boies has "plenty of experience in sports," having advised the Yankees, NASCAR and Larry Ellison "in his dispute involving the America’s Cup." Although working "both sides of an argument is not unique for lawyers," what is unusual "is how quickly Mr. Boies has moved to the other side of the aisle" (N.Y. TIMES, 11/15). AMLAWDAILY.com's Brian Baxter wondered if Boies' work for the NFL this summer could "present a conflict of interest." The NBPA by hiring Boies "could get a valuable peek inside the playbook of a litigator who handled a similar antitrust dispute" a few months ago. One lawyer noted Boies counted Trail Blazers Owner Paul Allen as a client, and asked "Now Paul Allen is adverse to the NBPA. How does he do this?" But NYU law professor Stephen Gillers said, "Owners and their teams would not be deemed clients of the lawyer for the league. By representing the NFL, Boies would not have a traditional attorney-client relationship with its member teams" (AMLAWDAILY.com, 11/14).
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Stern says NBPA Exec Dir has
put NBA season in jeopardy |
STERN MAKES THE ROUNDS: Stern appeared on ESPN’s “SportsCenter” yesterday and discussed the NBPA's plans to disband and pursue antitrust action. He said, “That threat has been ongoing until now despite the NBA’s good faith bargaining. The players, by doing this action, walked away from an offer that would have not had a rollback of existing contracts, it would have had guaranteed contracts, it would've taken the average player’s salary from somewhere in the mid-$5 million range to between $7-8 million over the life of the deal. But apparently, it was not to the liking of the players." Stern said “By this, I would say, irresponsible action at this late date, Billy Hunter has decided to put the season in jeopardy and deprive his union members of an enormous payday.” When asked if he was ready to cancel more games in the season, Stern said, “The calendar takes care of it by itself. We’re not issuing idle threats. … It’s the very lawsuit that Mr. Kessler brought against the NFL in the 8th Circuit which the court basically held for the NFL. So we don’t even understand the strategy anymore, but that’s what they’re doing.” The issue gets “stranger and stranger and I think that the chances of the season slipping away from us and the players losing all that they have worked very hard to achieve is really a tragedy.” Stern said the league offered the NBPA “a revised proposal which met many of their concerns over a two-and-a-half-year negotiating period” and the league “had hoped” the Exec Committee would have the “good sense to put it to their membership, but they’ve decided, obviously having been hopped-up by Mr. Hunter and the lawyers brought in, that this was a good negotiating tactic. That’s all it is. … But it’s not going work. If they were going to do it, they should have done it a long time ago. Maybe we would have had a chance to save the season. But they seem hell-bent on self-destruction" (“SportsCenter,” ESPN, 11/14). Stern also said, "Obviously Mr. Kessler got his way and we are about to go into the nuclear winter of the NBA." He added, "If I were a player, I would be wondering what it is that Billy Hunter just did." Hunter and Fisher "explained themselves further in a letter to all players" last night. The letter "spelled out the reasons they've opted to transform the NBPA into a trade association that will keep its New York headquarters open but can no longer negotiate with the owners" (ESPN.com, 11/15).
