NBPA to file motion to dismiss lawsuit
Posted on: August 4, 2011 6:48 pm
Edited on: August 4, 2011 10:44 pm
NEW YORK -- Officials from the National Basketball Players Association huddled Thursday and decided to file a motion to dismiss the NBA's federal lawsuit, a move that likely will come in the next 7-10 days, sources told CBSSports.com.
The decision is hardly stunning, considering attorney Jeffrey Kessler's strident rejection of the basis for the league's suit, which seeks declaratory judgment from the U.S. District Court for the Southern District of New York that the lockout is legal. Also, the NBA is seeking protection on antitrust grounds from a possible decertification by the players (or disclaimer of interest to represent them by the union) and has proclaimed its intention to void all existing contracts if the NBPA dissolves.
Kessler told CBSSports.com Tuesday the lawsuit has "no merit," and that he intends to use it as evidence of the league's bad-faith bargaining in a separate charge pending before the National Labor Relations Board.
Under intense pressure from prominent agents to decertify and file an antitrust lawsuit against the NBA, union chief Billy Hunter has resisted and instead pursued the case under federal labor law with the NLRB, which some legal experts believe could provide the clearest path to an injunction lifting the lockout. The agents shouldn't hold their breath, as decertifying or disclaiming interest now now could impede the progress of the NLRB case, for which a ruling is expected in 30-60 days.
In addition to the federal lawsuit Monday, the NBA also filed its own unfair labor practices charge against the NBPA.
After a motion to dismiss in federal court, the next step would be hearings on the matter before U.S. District Judge Paul Gardephe. If the union had chosen to simply answer the complaint, the case would've proceeded to discovery and then, trial -- though few legal observers or attorneys on either side believe it will ever get to that point.
However, if the two sides wind up in a protracted legal fight, the NBA could benefit from its decision to file pre-emptively in the Second Circuit, thus setting the venue where it has previously defeated the NBPA in an antitrust case. In 1995, the Second U.S. Circuit Court of Appeals ruled against the NBPA when it was seeking to have the salary cap and college draft abolished.