(3:40 p.m. update: David Stern speaks, Billy Hunter says season probably lost.)
NBA players got David Stern’s memo and dragged it to the trash bin.
Not only did the NBPA not send the owners’ latest offer to a vote of the full membership, the executive committee and the 30 player reps unanimously rejected the proposal and filed a “disclaimer of interest” that renounces the union’s interest in representing players in bargaining with the league. Billy Hunter said the next stop is a federal courtroom, where individual players will file antitrust suits against owners.
At a press conference following the union meeting, Hunter said “the collective bargaining process has completely broken down.” Later on NBA TV Hunter said: “It’s a high probability rather than possibility” that the 2011-12 season is lost.
Later on SportsCenter, Stern blasted union leadership for what he called a “sham” strategy, said the move is “really irresponsible given the timing of it” and predicted a “nuclear winter of the NBA.”
“It’s OK to do when you haven’t lost a game, but to do it now, the union is ratcheting it up to, I guess, see if they can scare the NBA owners into something,” Stern said. “That’s not happening. What they’ve done is destroy incredible value that otherwise would have gone to union membership.”
It seems some players also are questioning why the union waited until now to take such a drastic step, especially since Hunter and Derk Fisher have said all along that they didn’t think owners would ever present a deal players would accept. Deron Williams went to Twitter to vent on the union’s strategy:
“This is why I said we should have done this in July bc at least the process would have been underway… even over! Now possibly #NOSEASON”
Since Stern already had already said the owners are done negotiating–and noted today that there now is no union with which to negotiate–this means the season is in jeopardy as the two sides fight it out in court. Once players file the suit, we will see if owners follow through with Stern’s threat to void all existing contracts.
Gabriel A. Feldman, the director of the Tulane Sports Law Program, offered a good primer on the legal ramifications of the union’s move:
Assuming the mere threat of decertification/litigation is not enough to move the owners, the NBPA could (while the players are waiting for the decertification election) disclaim interest in representing the players. Disclaimer would permit the players to file their antitrust suit immediately. The NBA owners would argue that any such lawsuit must be heard in NY, so the players could either file in NY (unlikely) or file in another jurisdiction and engage in a legal battle to allow them to choose where the case is heard (more likely).
Stern has said all along that disclaimer/decertification is a losing strategy for players, citing the suit lost by NFL players last summer when they went the disclaimer route. On SportsCenter today he called the union’s tactic a “magical trick” that won’t succeed.
(The union has retained litigator David Boies, who represented the NFL in that case. Can’t beat ‘em, join ‘em?)
But Feldman explains why the NFL case doesn’t necessarily mean NBA players will lose in court:
The ruling in Brady [vs. NFL] obviously favors the NBA owners, but the NBA players may still have success in court for at least a few reasons. First, only courts within the Eighth Circuit are bound by Brady, and it is a virtual certainty that any antitrust suit brought by the NBA players would not be filed in a court within the Eighth Circuit (the NBA filed its preemptory legal action in NY, and the players would likely file their suit in an employee-friendly jurisdiction like California).
Second, let’s be clear as to what the Eight Circuit decided in the Brady case. The NFL players argued that the NFL lockout was illegal and asked for 2 things–an injunction and damages. The district court preliminarily concluded that the lockout was illegal and granted the injunction. The Eighth Circuit reversed, narrowly holding that the Norris-LaGuardia Act prevents federal courts from enjoining lockouts. The court did not conclude that the lockout was illegal and did not conclude that the players were not entitled to bring their antitrust claim. So, even if a court was bound by Brady, it could still determine that the players are able to bring a post-dissolution antitrust suit challenging the lockout, and that the lockout was illegal. In other words, Brady does not prevent the NBA players from dissolving their union and bringing a successful antitrust suit for three-times damages.
Third, decertification (as opposed to disclaimer) may give the NBA players a more powerful argument in court. In Brady, the NFL argued that the NFLPA’s disclaimer of interest was a sham, in part, because it “lack[ed] the formality of decertification” and was “literally a paper-thin statement, issued unilaterally by a union, that may readily be overturned.” The formality of the decertification process could thus weigh in the NBA players’ favor.
Sorry to bog down my blog people with a bunch of legalese but, sadly, that’s where we are.
I will update here after Stern speaks.
Michael Cunningham, Hawks beat