Atlanta Hawks: Labor fight heads to courtroom as season in jeopardy
(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
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315 comments Add your comment
drmaryb .[*_*].
November 19th, 2011
8:17 am
Trade Down!
I would not trade Josh for Bosh, (hey, that rhymes).
drmaryb .[*_*].
November 19th, 2011
8:25 am
Down Sizing?
Yeah, I’ll take the defense Josh gives over the offense of Ms. Bosh, yeah I said Ms. I know Bosh got married, but that was a sham to cover up his “down low” tendencies (wink-wink).
Here’s my point: the glaring hole on the Hawks roster is they are just too small to defend the pain against the contenders, but, I don’t see how Bosh addresses the issue of size and toughness on this team. We need some beef – maane, not a paper doll in the paint.
We finally got our PG settled, so go find us a big man to help Horford and Smith. The new CBA system changes does little to fix a lack of talent to go around. Everybody wants to be a PF and a Shooter on this team.
What ever happened to big guys wanting to play big?
doc
November 19th, 2011
8:37 am
slow white bronco? that seems to be a description of oj’s last run to me, dmb.
drmaryb .[*_*].
November 19th, 2011
9:26 am
SWB!
Hey doc! LOL … (he he)
drmaryb .[*_*].
November 19th, 2011
10:32 am
The PJ’s!
Is PJ Brown still available? I think his last name was Brown? Anyway, any player of his ilk still around, that we can get?
Someone like a: Xavier McDaniel, Anthony Mason, Otis Thorpe, Bill Lambier, or, or … Any ideas fellas? He doesn’t even have to a center. Can ZaZa still be that tough guy for us, he is still very young – any upside left to him?
Perhaps a better coach should be addressed at this point.
drmaryb .[*_*].
November 19th, 2011
10:48 am
Personnel Management!
I think with the personnel we have, we have not maximized the Hawks paw-tential fully. Sure, we still need 3 to 5 of the right pieces, (damien wilkins is a keeper) damien reminds me of Mario West with a shot. Damien brings:
Defensive tenacity
Energy
Smartness
We just need a Real GM and a Real Coach. Forget about the owners – they’re depressing enough without us feeding that negative. Maybe we can still get back to the 2nd round agaun.
drmaryb .[*_*].
November 19th, 2011
11:29 am
Well – It’s about Time!
_____________________
NCAA taking up Penn State scandal
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The Associated Press
STATE COLLEGE, Pa. — The NCAA will examine whether Penn State broke any rules with its handling of a child sex abuse scandal that has shocked the campus and cost the school’s former president and coach Joe Paterno their jobs.
NCAA president Mark Emmert sent a letter to Penn State president Rod Erickson saying that the governing body for college sports will look at “Penn State’s exercise of institutional control over its intercollegiate athletics programs” in the case of Jerry Sandusky, the former defensive coordinator accused of 40 counts of child sex abuse.
FILE – In this Oct. 24, 2011, file photo, NCAA president Mark Emmert speaks about policy changes being considered by the NCAA during the Knight Commission on Intercollegiate Athletics meeting in Washington. Penn State released a letter Friday, Nov. 18, 2011, from NCAA president Mark Emmert to Penn State president Rod Erickson saying that the governing body for college sports will examine “Penn State’s exercise of institutional control over its intercollegiate athletics programs” in the case of Jerry Sandusky, the former defensive coordinator for the NCAA college football team accused of serial child sex abuse. (AP Photo/Manuel Balce Ceneta, File)
“We have to examine those facts and make a thoughtful determination of what is covered by our bylaws and what is not,” Emmert told The Associated Press on Friday.
Emmert said the case is not yet a formal investigation, though the inquiry could lead to that. NCAA investigators have not yet been on Penn State’s campus. Emmert has asked the university to respond by Dec. 16 to several questions.
If the NCAA decides to move ahead from there, the process could take an additional six to 10 months.
“Everyone that works inside a university, a coach, an administrator, a faculty member is first an educator and mentor,” Emmert said. “When you’re in that position you have a responsibility to provide leadership and maintain a high ethical standard.”

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Sandusky is accused of abusing eight boys, some on campus, over 15 years. Among the charges is an alleged assault in 2002 that was not brought to the attention of police, according to a grand jury report, even though top officials at Penn State knew there was an accusation of inappropriate behavior.
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“It will be important for Penn State to cooperate fully and provide any assistance possible to the NCAA,” Erickson said in a statement. “The university’s and NCAA’s interests are perfectly aligned in identifying what went wrong and how to prevent anything similar from happening again.”

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Schultz and Curley each are charged with lying to the grand jury and failure to report to police. They maintain their innocence, as does Sandusky.
In addition to the ongoing criminal investigation of Sandusky, Penn State has started its own, internal review and the U.S. Department of Education is examining whether the school failed to report incidents of sexual abuse on campus, as required by federal law.
Soon after Penn State announced that the NCAA was getting involved in the case, Scott Paterno, the ex-coach’s son, said his father has been diagnosed with a treatable form of lung cancer. The younger Paterno said his father is expected to make a full recovery.
Emmert, in his letter, said the allegations in the case are testing “not only the integrity of the university, but that of intercollegiate athletics as a whole and the NCAA member institutions that conduct college sports.”
The NCAA in the letter asked Penn State to respond to various questions, including:
— How did Penn State exercise “institutional control over the issues identified in and related” to the grand jury report? Did the school have procedures in place that were, or were not, followed?
— The NCAA also wants to know if “each of the alleged persons to have been involved or have notice of the issues identified in and related” to the grand jury report behaved according to the school’s policies on honesty and ethical conduct.
— The NCAA also asked Penn State to explain its policies and procedures that are “in place to monitor, prevent and detect the issues identified in and related to the Grand Jury Report.”
Paterno, Division I’s winningest coach with 409 victories, was fired by university trustees Nov. 9, the same night then-president Graham Spanier also left his job under pressure. School leaders faced mounting criticism that more should have done to prevent the alleged abuse.
Emmert in his letter cited an NCAA bylaw that says coaches or athletic staffers must “do more than avoid improper conduct or questionable acts. Their own moral values must be so certain and positive that those younger … will be influenced by a fine example. Much more is expected of them than of the less critically placed citizen.”
__
AP Sports Writer Mike Marot in Indianapolis contributed to this story.
___
November 18, 2011 07:21 PM EST
Copyright 2011, The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.
drmaryb .[*_*].
November 19th, 2011
5:47 pm
Do Nothing!
It literally took an act from a “do nithing” congress to move the NCAA into investigative mode over there at “do nothing” Perp-State!
How ironic is that? (smh)
drmaryb .[*_*].
November 19th, 2011
6:04 pm
Leader!
“@Teague0 says he still plans to enroll at Wake Forest spring semester. Plans to take 4 classes apply to Comm degree” – MC Tweet -
__________________
Just be smarter than Marvin and work on your game too! LOL! Be a Leader not a Reader.
Sam
November 19th, 2011
6:55 pm
Amazing video of a high school senior from Columbia TN who kicks the ball dead straight 75-80 yards in the air. He was successful on 54 of 54 attempts this season….100%. For some crazy reason, he wants to go to Georgia Tech.
Watch for yourself…it is unreal!
http://www.youtube.com/watch?v=S_JKwgwFY3g
vava74
November 20th, 2011
2:09 am
A good read:
http://www.grantland.com/story/_/id/7250994/business-vs-personal
(Lock out)
Grandad
November 20th, 2011
2:25 am
I’m not exactly sure nor am I comfortable
with the NCAA investigating a criminal
case that is already being handled by
the proper judicial autuorities.
The NCAA stands for:
National Collegiate “Athletic” Association
I understand the “institutional control” issue.
But it seems to me they are overstepping
their boundaries in this.
NCAA governs games.
NCAA does not have subpoena power;
NCAA does not follow precedent;
the NCAA does not bear the obligation of – burden of proof;
“semper necessitas probandi incumbit ei qui agit”
and finally the NCAA does not …
have a track record for being consistent.
” I rest my case ”
- Grandad the Barrister -
doc
November 20th, 2011
8:06 am
gdad it is about image, pritecting the brand, pr. see article i posted earlier about hoe much money the ncaa handles each year and their profits?
as an aside an intersting read from the nytimes on the nfl:
http://www.nytimes.com/2011/11/20/sports/football/kris-jenkinss-view-of-life-in-the-nfl-trenches.html?pagewanted=1&_r=1&nl=todaysheadlines&emc=tha27
not a dog fan but congrats. sure wish tech woukd catch them looking ahead to the sec game. they can win the sec just lose to the bees. big upheaval this week. i really thought okie state might be in a championshp game. sooners clemson and beavers go down. uga top ten now. good for the state.
ILL-Logical
November 20th, 2011
2:30 pm
http://www.washingtonpost.com/business/2011/11/17/gIQAa5ljbN_story.html?hpid=z6
doc
November 20th, 2011
4:50 pm
yhat last paragraph sums up what i have said all along. the prob is the owners.
gdad it is not about queen and the summer of 10 because the pkayers have been expwcting this and dont want to take all the lumps for dividing between the big market guys and small. too easu for the owners that way.
i dont like queen any more rhan you do but to suggest him as the fall guy and yhe poster boy for all wrong in the nba misses the egregious ownership that will take from whoever they can but wont share a dime between themselves.