NBA players, who took their standoff with the league to court last week, may have a better legal case than their football counterparts did against the NFL precisely for the reason why critics were upset with their now disbanded union: The labor group waited 4 1/2 months to say it would become a trade association.
The NBA players were able to file their antitrust claims against the league once the National Basketball Players Association disclaimed its interest in representing the players as a union — just as NFL players, in March, filed suit against the NFL after the NFL Players Association disclaimed its interest. The NFL players, however, did exactly what some NBA players had been clamoring for: a quick disbandment relative to the expiration of the collective-bargaining agreement. Legal experts last week said that action ultimately hurt the NFL players’ legal effort. The NFL was able to successfully hammer its players time and again that by their walking away from the negotiating table before the CBA had even expired — the disclaimer and lawsuit came on March 11, the last day of the CBA — the collective-bargaining process had not ended. Legally, that meant the lockout could stay in place, something NFL players had been advised would not be the case.
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“Whether intentional or not, the NBA players can at least make a stronger claim that the collective-bargaining process has ended and there should be no obstacle to choosing antitrust law over labor law,” said Gabe Feldman, a Tulane University sports law professor who served as an expert for the NFL Network during the football lockout.
The NBA CBA expired on June 30, and the union’s disclaimer did not come until last week, which would have been the third week of the 2011-12 NBA season. While that wait could mean the loss of the season, it might also make the players’ case stronger than that of their football brethren.
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The NBPA waited 4 1/2 months after the NBA CBA expired to disband.
Photo by: GETTY IMAGES
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Management in and around collective bargaining is largely exempt from their workers suing using antitrust claims. There is no finite period set by the courts for how long a union must wait until after CBA expiration to be free of labor rules that prevent antitrust claims, but a judge in the NFL case suggested six months during oral arguments on June 3.
While the NFL players may not have won in court in the end, there were benefits to their early filing. Within seven weeks of the union disbanding, the first court decision came down. Within a few weeks of that came a pivotal ruling from an appeals court keeping the lockout in place. Those legal decisions served as yard markers and, ultimately, inducements for the parties to settle without missing any games. Less than three months after the NFL CBA expired, the sides were in talks that would serve to end the standoff. In fact, from one CBA to the next, the NFL took about 4 1/2 months, or the amount of time that elapsed before the NBPA said it would disband.
In the NBA impasse, there has been no outside pressure to stoke a deal other than a brief effort by federal mediator George Cohen, who was also involved in early mediation efforts in the NFL’s case.
With the NBA players filing suit in two jurisdictions, California and Minnesota, and the NBA in August filing a pre-emptive lawsuit against the NBPA in New York, the process could take longer to create the type of dynamic-changing decisions that in retrospect speedily broke the NFL logjam. The NBA cases ultimately will have to be consolidated into one court, a process sure to generate competing motions in different courts that could take months.
David Boies, one of the NBA players’ attorneys, said he wanted to consolidate in Northern California, which is in the labor-friendly 9th Circuit. The NBA, meanwhile, would likely look to have the lawsuits consolidated through the New York federal court in which it filed its suit.
“The NBA will argue that the [antitrust] cases should be dismissed because they weren’t brought by people who were sued by the league in New York,” said Mark Levinstein, of Washington, D.C.-based law firm Williams & Connolly.
'Because the NBA players’ antitrust lawsuits were filed three weeks into the planned 2011-12 season, lawyers for the players are pushing for a summary judgment to speed up the legal process that threatens to cancel the entire season. “The NBA players are not looking for any injunctive relief like in the NFL’s case,” Levinstein said. “They are looking for three times the damage [caused by missed games].”
Treble damages are allowed by law in antitrust litigation.
But John Goldman, a labor attorney at Herrick Feinstein, said any damages awarded won’t come quickly. “This case won’t be over by a year from now,” Goldman predicted. “If they really go through the ligation process, forget about being out one year — it’s probably two years.”
NBPA and NFLPA disclaimers: Key differences
• The NFLPA disclaimed interest before the CBA officially expired; the NBPA waited until 4 1/2 months after the CBA expiration. That distinction could prove critical, as the NFL players could not convince an appeals court the collective-bargaining process had ended with such a quick dissolution. That meant the lockout could stay in effect.
• The NBA players are not moving to lift the lockout but instead are moving forward on their core antitrust claims. The NFL players focused first on getting an injunction to lift the lockout — which ultimately they could not get except for a brief few days in April, when a district court granted one before the appeals court stayed that ruling.
• The NFL situation was handled in one jurisdiction because that court oversaw the labor relationship between the two sides. NBA players have filed in two jurisdictions, and the NBA previously filed in a third one. With the NFL, the court appointed a mediator who was able to bring the sides together. In the NBA case, one court will have to emerge as the focal point.
• The NFL maintained that its last offer to the players before they disbanded their union was not a “take it or leave it” offer but open to further negotiations. The NBPA contends that the NBA presented its final offer as close to a “take it or leave it” offer — which NBA player counsel says shows that the collective-bargaining process had ended.
