SBJ/September 19-25, 2011/Labor and Agents

Inquiry complete in NBPA’s case as agents take the spotlight

The National Basketball Players Association’s unfair labor practices charge against the NBA is moving forward with the National Labor Relations Board, just as a group of powerful NBA agents last week held a conference call, without union officials, to discuss the players’ strategy during the continuing lockout.

The union ultimately is hoping to receive an injunction in federal court to end the lockout.

Steve Wheeless, outside attorney to the NBPA, said the NLRB has completed its investigation of the union’s unfair labor practices charge, which alleges that NBA officials engaged in a “take-it-or-leave-it” position during labor talks rather than conducting back-and-forth bargaining. The NBPA filed the charge against the NBA in May.

The league has said the charge is without merit and has submitted evidence to the New York Region 2 of the NLRB, which is investigating the charge.

“The Region 2 has completed its investigation, and it’s my understanding they are close to concluding their internal deliberations and assessment of the case and that they will shortly forward their recommendation and analysis to the Division of Advice at the NLRB in Washington, D.C.,” Wheeless said. The Division of Advice advises the NLRB on both unusual and high-profile cases. The division could advise that a case be dismissed or that a complaint should be issued. That latter circumstance, in this case, could in turn result in the board seeking an injunction in federal court against the NBA, among other things.

The NBA declined to comment for this story.

Attempts to reach NBPA officials for comment were unsuccessful.

The NBA also filed an unfair labor practices claim, against the union, in August, alleging that the union has failed to bargain in good faith. Wheeless said last week that the NBA’s charge has not been formally delivered on the union by the NLRB and is moving on a separate track.

NBPA Executive Director Billy Hunter last week reiterated that the union does not plan on decertifying as a means of supporting its position against the NBA but instead plans to continue to pursue its NLRB charge. Decertifying as a union would allow the NBA players to file antitrust litigation against the NBA, an action they are prohibited from taking if they are constituted as a union. The decertification strategy was the course of action taken by NFL players earlier this year in their labor dispute with the NFL.

Hunter’s comments came as a group of agents held a conference call without Hunter or union officials to talk about options for players, including decertification. According to an ESPN report, Arn Tellem, Bill Duffy, Mark Bartelstein, Jeff Schwartz and Dan Fegan — who represent about one-third of all NBA players — were on the call.

One agent on the call told SportsBusiness Journal there were more than five agents on the call. This agent declined to detail the conversation, but he said that while the agents believe the union’s NLRB charge against the league has merit, the chance that the NLRB will seek an injunction to end the lockout is low. “No one has any faith in that,” said the agent, adding that he thinks the chance that the charge could end the lockout is 20 percent or less.

Wheeless did not handicap the NBPA’s chance of getting the NLRB to act, nor did he predict a timetable for action.

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