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Volume 21 No. 1
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Could fear of decertification drive a deal in NBA?

Editor's note: This story is revised from the print edition.

The fact that there is a divide between NBA players and agents on whether to decertify the National Basketball Players Association as a union could actually help to get a deal done to end the league lockout, multiple legal and basketball sources said last week.

Additionally, labor lawyers noted last week that the decertification path being suggested by the NBA agents would be different than the method used by NFL players earlier this year in their labor negotiations and would be tougher for the NBA to challenge as a sham, as the NFL did with the actions of the NFL players.

The NBA declined comment for this story. The NBPA did not respond to requests for comment. The sides on Thursday were in talks aimed at ending a lockout that began July 1.

NBPA Executive Director Billy Hunter previously has said the union does not plan on decertifying as a means of supporting its position against the NBA. Instead, it plans to continue to pursue the unfair labor practices charge it filed with the National Labor Relations Board against the league in May.

Top: Executive Director Billy Hunter (right) with President Derek Fisher and other players, says the union doesn’t plan to decertify. Left: Decertification would cause complications for NBA Deputy Commissioner Adam Silver (left) and Commissioner David Stern.
ESPN earlier this month first reported that agents Arn Tellem, Bill Duffy, Mark Bartelstein, Jeff Schwartz and Dan Fegan — who collectively represent about one-third of NBA players — held a conference call to discuss a different strategy: decertification. Multiple sources last week said there are more than five agents who have been talking for months about decertifying the NBPA and filing an antitrust lawsuit against the league.

The NBPA would have to be decertified for players to file an antitrust action because the players cannot sue the league while they are members of a union.

If agents are able to push for a vote to decertify the union, it could create a host of issues for the owners, foremost of which would be that there is no one with whom the owners could negotiate a new collective-bargaining agreement. It is not clear, under the decertification scenario, whether the NBPA would be run as a trade association instead of a union — as was the case for the NFL Players Association — and if so, who would run that association. The agents who have been holding discussions have been secretive about their plans.

But as for reaching a new labor deal, an attorney who is advising NBA players said the purpose of the lockout is to miss games to put pressure on players to fold and agree to major concessions. This attorney added, “If there is no union, no one can fold.”

An NBA player agent who has had conversations with but is not part of the group of agents who want to decertify the union also said the fact that agents are not on the same page as the union could spur a deal.

The agent said that because the threat of decertification is legitimate, it could bring together the owners and union leaders, both wanting to avoid what could be a chaotic and uncertain situation. “Giving the NBA and the union a common enemy, that being the agents, is not necessarily the worst thing for a negotiation,” said this agent.

The agent said that although he does not favor decertification currently, that could change if Hunter and NBA Commissioner David Stern are unable to strike a deal. He said he believes, as of last week, the majority of players were not for decertification, although a majority of agents did favor it as a strategy.

He also noted, as did other sources, that the decertification talk speaks more to what the agents believe is the best way to protect players’ interests rather than anything personal against union leadership.

Both the agent and the attorney requested anonymity, saying players were divided on the issue of whether to decertify the union.

It is not clear how many agents and how many players favor decertification. ESPN reported last week that New York Knicks guard Chauncey Billups spoke with nearly 50 players and said most of the league’s players are convinced they should not let agents lead them to decertification. The NBA agent said he believed the union gained some momentum as a result of the group’s meeting with players in Las Vegas earlier this month.

One of the reasons NBPA leaders are said to be against decertifying is because of what happened after the NFL players decertified. Although a federal court issued an injunction against the lockout, the 8th U.S. Circuit Court of Appeals overturned that injunction.

But lawyers said the type of decertification the NBA agents are seeking is different. Although what the NFL players did was commonly referred to as decertification, legally it was a disclaimer of interest, meaning the union voluntarily ceded interest in representing NFL players in collective bargaining; it was an action taken and supported by the NFLPA. The NFLargued the decertification was a sham and challenged it in court.

What the NBA agents are considering is an involuntary decertification. If 30 percent of the NBA players sign a petition for a decertification vote, an election will be held, and the union will be decertified if 50 percent plus one player votes in favor of it.

Labor lawyers, including those who represent management and employees, said that if the players were able to do that, the NBA may have a much harder time than the NFL in trying to argue it was a sham action.

“They would be in a much better position if the players just voted to decertify and file their own antitrust action,” said Bill Gould, a Stanford Law School professor and former chairman of the NLRB. “No one can possibly say it’s a sham. It’s a new group ousting the old group.”

Also, if the NBA players held a decertification election, they could not on their own re-form as a union for one year, under labor laws. The NFL players could re-form as a union at any time because of the way they disclaimed interest.

The only way the NBA players could reform as a union is if the NBA gave permission for players to re-unionize. The NBA would likely do so if the players decertified the NBPA so that the league could continue to operate with a draft, a salary cap and other devices that could be seen as violating antitrust laws if they are imposed on non-unionized employees. That fact hurts the argument that such a decertification is a sham, said the attorney advising the NBA players.
“The NFL brought that up, that the players didn’t really decertify,” said this attorney. “It goes back to this ability to turn [the union status] on and off in a heartbeat. But here the answer would be ‘No, decertification is for a year,’ and the league can say, ‘No, they can do it now.’ But it makes it a lot harder to say it is a sham when the employer is the one that lets you flip the switch back on.”