SBJ/June 6-12, 2011/Labor and Agents

NBPA breaks away from path taken by NFLPA

The unfair labor practices charge filed last month by the National Basketball Players Association against the NBA was an unexpected turn of sorts in the two sides’ ongoing dispute regarding a new collective-bargaining agreement for the league.

Sports industry experts for months have been expecting NBA players to follow the strategy of NFL players in that league’s labor dispute this year — namely, that the NBPA would decertify as a union and file an antitrust lawsuit against the NBA, just as the NFLPA decertified and filed an antitrust lawsuit against the NFL.

What was not widely expected was that the NBPA would file the unfair labor practices charge with the National Labor Relations Board, as it did on May 24. The union alleged, among other things, that the league was dealing directly with players and bypassing the union as well as failing and refusing to provide relevant financial information requested by the union to understand its financial demands. In a statement, it urged the board to seek an injunction against the league’s threat to lock out players.

The NBA said the allegations have no merit.

The league’s CBA expires June 30. The league and union held collective-bargaining sessions last week, and both players and owners said they were hopeful a lockout could be averted after emerging from at least one of those sessions, according to reports.

Sources close to the players said the NBPA could still decertify and file an antitrust case against the league, regardless of any decision by the NLRB, but legal and labor experts had differing opinions on what the unfair labor practices filing might mean for any possible, future decertification of the basketball players union.

The reason NFL players decertified their union was they were not able to file an antitrust case against the league while remaining a union because of an antitrust exemption attached to a labor organization under law.

The NBPA’s unfair labor practices charge “shows to me that they are putting all their eggs in the labor law barrel, because this is likely to harm any antitrust proceeding that they institute because they are acting like a union,” said Bill Gould, a Stanford Law School professor and former chairman of the NLRB. Gould noted that the NFL players did not file an unfair labor practices charge against the NFL. In fact, the league filed a charge against the players (see related story).

“I think if they did file for a decertification, there would be an argument made that they are trying to get two bites at the apple: the antitrust bite and the labor bite,” Gould said.

Gabe Feldman, director of the sports law program at Tulane University, said he would not be surprised if NBA owners argue the players are trying to use labor laws and antitrust laws at the same time. The players, Feldman said, could respond that labor laws applied only while the collective-bargaining relationship existed.

“That filing with the NLRB shows that they are going to exercise every weapon,” Feldman said. “Decertification is not their only strategy.”

NFL players decertified the NFLPA hours before the CBA expired because if they had waited until after it expired, they would have had to wait another six months to file a lawsuit against the NFL, under the old CBA. The NBA players have no such restrictions on whether or not they can decertify.

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