SBJ/October 17-23, 2011/Labor and Agents

Agents seek advice on decertifying

A group of powerful NBA agents has been consulting with antitrust and class-action attorneys, including San Diego-area attorney Len Simon, for legal advice regarding the option of players voting to decertify the National Basketball Players Association, multiple sources said last week.

Whether the agents decide to pursue decertification as a option, let alone retain Simon or other legal counsel, remained undecided as of last week, sources said. Sources requested anonymity because they were not authorized to speak publicly for the group of agents. No additional attorneys were identified by name as having consulted with the agents.

Simon
Simon is of counsel at Robbins Geller Rudman & Dowd. He has represented plaintiffs who received a $240 million settlement in a case involving the failed Lincoln Savings & Loan in the 1990s as well as a settlement of more than $1 billion in the Nasdaq market-makers antitrust litigation, also in the 1990s. Simon did not return repeated phone calls or answer an email seeking comment.

Simon’s biography on his law firm’s website did not mention ties to the sports industry, but he has been a part-owner of the Lake Elsinore (Calif.) Storm, a San Diego Padres minor league affiliate, and he has taught sports law classes for the University of San Diego, according to publicly available information.

The NBA agents — a group that includes Mark Bartelstein, Bill Duffy, Dan Fegan, Leon Rose, Jeff Schwartz, Arn Tellem and Henry Thomas — have refused public comment on their plans. Together, the agents represent more than 30 percent of NBA players, an important threshold for the decertification action being considered.

Meanwhile, NBPA Executive Director Billy Hunter remained opposed last week to decertifying the union by disclaiming interest in representing NBA players for collective bargaining, said Larry Katz, outside attorney to the NBPA. The NBA would have to decertify, either by disclaiming interest or by holding a decertification vote, before players would be able to bring an antitrust suit against the NBA for lockout.

“Billy Hunter has made it clear in the past, and he feels the same way today, that the NBPA has no intention of disclaiming interest in representing NBA players,” Katz said Tuesday.

The NBPA has filed an unfair labor practices charge against the NBA alleging that it broke labor laws by engaging in “take-it-or-leave-it” bargaining and is hoping the National Labor Relations Board will seek an injunction to halt the lockout. The NBA has said the NBPA’s charge is without merit and has filed its own charge against the union, alleging the players engaged in unfair labor practices. Katz said the union had “a high level of confidence” that the NLRB would issue a complaint against the NBA.

If the NBA agents were to pursue decertification, it would be a variety different from what the NFL Players Association executed earlier this year, during the NFL lockout. In that case, the NFLPA disclaimed interest in representing the players for collective bargaining by sending a notice to the NFL. That decertification action was initiated by the leadership of the NFLPA, and there was little to no opposition to it among the ranks of NFL players.

The NBPA could take the same type of disclaimer action if Hunter and the NBA players chose to do so by sending a notice to the NBA. But what the agents have been said to be considering is what is known as an “involuntary decertification,” a process more complicated than the disclaimer of interest. In an involuntarily decertification, 30 percent of the players would file a decertification petition to the NLRB asking for a vote of all NBA players. The union would then be decertified if 50 percent plus one player voted in favor of it.

Although the agents have sought legal advice from Simon, it is not clear if they favor that strategy, nor is it clear who would be the leader of that effort if pursued.

“We do not believe that there will be a decertification petition filed on behalf of the players,” Katz said. Katz has previously said that, if the players did file such a charge, the NBPA may try to block an election depending on a number of factors, including the number of players who signed the petition.

Bill Gould, a Stanford Law School professor and former chairman of the NLRB, said that if there are no major issues, a decertification could be completed in a couple of months. If there are issues, he said, “All bets are off.”

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