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SBJ/May 2-8, 2011/Labor and AgentsPrint All
The NBA collective-bargaining agreement expires June 30. Just as NFL players did last year, NBA players have taken steps to authorize the decertification of their union, the National Basketball Players Association, as a weapon in the labor battle. The NBA is expected to lock players out if there is no new agreement reached.
As previously written in this space (April 4-10, 2011, issue), many in NBA circles have been watching the Brady v. NFL case, even before Nelson’s ruling last Monday enjoining the lockout. The NBPA, which is represented by the same outside counsel as the decertified NFL Players Association, Jeffrey Kessler and Jim Quinn, could decertify the basketball union, with the players then filing a lawsuit challenging any lockout the NBA may impose as a violation of antitrust laws. The NBA would be expected, as the NFL did, to challenge any such decertification as a tactic if NBA players take that step.
Nelson, in her decision, found that the NFLPA’s decertification was “valid and effective.” An appeal by the league was expected at press time for this column.
“It’s a clear victory for the NBA players,” said Gabe Feldman, director of the Tulane University sports law program. “It may turn out to be a temporary one, but if it holds up on appeal, it gives NBA players tremendous leverage going into those negotiations. It introduces decertification followed by an antitrust suit as a viable threat for the players and perhaps eliminates the owners’ strongest weapon by not allowing them to lock the players out.”
The NBA and NBPA did not respond to requests for comments on this story.
The NBA players’ and NFL players’ situations are different in a number of ways, including that the NFLPA has decertified in the past while the NBPA has not. The expired NFL CBA contained language regarding the future decertification of the football players union; the NBA CBA does not contain any such language.
Bill Gould, the former chairman of the National Labor Relations Board and a current Stanford Law School professor, said before Nelson’s decision that she could have made a decision in favor of the NFL players based on the CBA language — which, had she done so, would not be as important a victory for the NBA players. As she ruled, Gould said, her decision could give NBA players more leverage.
“I know she didn’t decide it on the [NFL] collective-bargaining agreement [language],” Gould said. “This reasoning applies completely to the NBA players.”
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As the NFL appeals to keep the lockout in place, the league is sure to target federal Judge Susan Richard Nelson’s decisions not to hold evidence hearings on whether the players are suffering irreparable harm and whether the players union’s decertification, or disclaimer, is valid, legal experts said.
While most believe the bar is high for the league to get the 8th U.S. Circuit Court of Appeals to overturn Nelson, who ruled to end the lockout, experts of various affiliations said the judge appeared to rely heavily on statements from the players’ side without fully exploring the factual record. While this may not be enough, the NFL is nevertheless likely to contend Nelson failed to consider all the facts in applying the law.
“On disclaimer, Judge Nelson relied on well-developed legal precedent, but the NFL is likely to argue that it was denied the opportunity to develop the factual record applicable to that legal precedent,” said player lawyer David Cornwell, a finalist for the NFLPA executive director position in 2009, who still thinks the NFL has a difficult task to overturn her ruling.
The standard for a valid disclaimer is that it must be unequivocal and adhered to, he said. Only by disclaiming could the players then sue under antitrust law.
“Judge Nelson concluded that the disclaimer was valid, but the NFL may argue that Judge Nelson erred when she did not give the NFL an opportunity to provide facts to show that the disclaimer may not be adhered to,” Cornwell said. That could be viewed as both as an abuse of discretion and as an error as a matter of law, he said.
Similarly on irreparable damages, a necessary requirement to grant an injunction, Nelson relied heavily on affidavits from player agents and former NFLPA player representatives that a lockout in April was a heavy burden. She did not take up league lawyer David Boies’ request during oral arguments that the issue deserved its own hearing.
She seemed to anticipate this argument in her rejection of a stay, writing, “This Court came to that conclusion based on the extensive affidavit evidence submitted by the Brady Plaintiffs [on irreparable damages]. The NFL offered little, if any, evidence to directly rebut the Players’ affidavits, either in response to the motion for a preliminary injunction, or here.”
Some legal experts were troubled by her decision on disclaimer, when she ruled the intent of the union is unimportant as long as it effectively disbands. The league argues the disclaimer is a tactic, but Nelson brushed aside that concern.
For John Goldman, a labor lawyer with Herrick Feinstein, Nelson’s ruling imperils sports labor.
“You are trashing the law on collective bargaining as we know it,” he said. “That just defeats the purpose of having unions and collective bargaining if the union can simply say we don’t want to do this.”
But Steve Bradbury, who argued for practice squad players in the 1996 Supreme Court case Brown v. NFL, said once Nelson accepted the disclaimer, the players had won. If there is no union, there can be no collective bargaining, he said, and so no lockout.
But the point the 8th Circuit may look at is how effectively Nelson factually examined the disclaimer, the experts said. For example, in its appeal last week to the 8th Circuit, the NFL included exhibit after exhibit of player quotes indicating that the decertification was only a tactic and that they still wanted to bargain. Whether that is relevant, the league will contend that Nelson failed to establish the facts before citing the law, the legal experts predict.