Many in the industry, as well as legal experts, expect that the National Basketball Players Association may pursue the same course of action that the NFL Players Association took by decertifying as a union and filing an antitrust case (Tom Brady v. NFL) challenging the lockout.
The players’ motion to enjoin the NFL lockout is scheduled to be heard on Wednesday before U.S. District Judge Susan Richard Nelson in St. Paul.
The NFL has claimed in legal papers, among its arguments, that the NFLPA’s decertification is a “sham,” which, if Nelson agrees, means the currently standing trade association is a union, and NFL players will be locked out. If Nelson agrees with the players’ argument, that the NFLPA has given up its collective-bargaining powers and is no longer a union, she could bar the lockout, and the players could then seek damages against the league and its clubs on claims that they violated antitrust laws.
“If the court decision comes out and the NFL players win, that helps us immensely,” said one prominent NBA player agent. “If the NFL players lose, that sinks us.”
Another NBA agent said of the Brady case, “Everybody’s watching it. The NBPA’s watching it. It will be a major factor in the game plan in the NBA.”
Both agents asked for anonymity because they were not authorized to speak publicly on CBA issues.
The NBA CBA expires on June 30, and the players and owners have had contentious negotiations. The two sides had a formal bargaining session in Los Angeles during All-Star week, and while neither side would answer if they had met since then, one source said there has been one informal meeting.
Just as NFL players did during the football season last fall, NBA players have voted to authorize the union to decertify. Additionally, Dewey & LeBoeuf partner Jeffrey Kessler, counsel in the Brady litigation, serves as outside counsel to the NBPA. The NBA declined comment on this story.
NBPA Executive Director Billy Hunter would not comment on what impact the Brady litigation might have on the NBA’s strategy, but he did say in a statement to SportsBusiness Journal, “Like it or not, a decision whether or not to have a union is up to the workers. If the workers believe that having a union is not in their interest, that’s their right.”
Legal experts are not so sure who will win in the Brady case, but they say it is likely to affect NBA labor negotiations.
“Each side has strengths and weaknesses in its arguments,” said Bill Gould, former chairman of the National Labor Relations Board and a Stanford Law School professor. “I don’t know how it is going to come down.”
If the NFL is able to convince Nelson that the NFLPA decertification is a sham, “It clearly will hurt the NBA basketball players union because it will cast doubt on this decertification exercise,” Gould said. If, on the other hand, the NFLPA is able to win its argument that it has successfully decertified, it could help the NBA players, Gould said.
However, the NFLPA’s situation is different from the NBPA’s in that there is language in the expired NFL CBA that addresses whether the NFL can challenge a decertification in the future. The NFL argues it can; the players argue the league cannot. Third-party lawyers who have studied the contract say the language is unclear.
Since the NBPA has not decertified in the past — the NFLPA has done so previously — there is no language in the NBA CBA addressing this issue.
Gould said if Nelson rules the NFLPA has decertified based on that contract language, it may not necessarily help the NBA players’ case in the future.
Gabe Feldman, director of the Tulane University sports law program, said “there is no question” that the outcome of the Brady litigation could affect the NBA labor situation. Feldman, like Gould, said he is not sure how Nelson may rule.
“The reason we don’t have a settlement is both sides think they are 100 percent right on the legal issues, and you don’t get a settlement when both sides think they are right,” Feldman said.
CAA SPORTS SIGNS PETTINE, LAWRIE: CAA Sports has signed New York Jets defensive coordinator Mike Pettine and Toronto Blue Jays second baseman Brett Lawrie for representation. Lawrie will be represented by a team of agents led by MLB player agent Joe Urbon. Pettine will be represented by a team of agents led by coaches agent Trace Armstrong.
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