Blog Entry

Legal options: Players can give ultimatum, too

Posted on: November 7, 2011 1:27 pm
NEW YORK -- As union officials huddled Monday to consider their options in the face of an ultimatum to accept the owners' latest proposal, one such option could be a shift in legal strategy with plenty of risk and reward attached to it.

Rather than waiting for the players to get the necessary signatures to dissolve the union by seeking a time-consuming decertification vote, Billy Hunter could advise commissioner David Stern that, if no further negotiations occur before the Wednesday deadline to accept the owners' deal, he will have no choice but to step aside as executive director of the union.

The legal term for this would be a disclaimer of interest, which would only require a letter from Hunter to Stern advising him that the National Basketball Players Association no longer exists as the bargaining unit for the players.

The advantage of this for the players would be that, once the letter is sent, their attorneys would not have to wait 45-60 days for the National Labor Relations Board to authorize an election to formally dissolve the union. With a disclaimer of interest, the players could almost immediately commence an anti-trust lawsuit against the NBA, said Gabe Feldman, director of the Sports Law Center at Tulane University.

"The owners have threatened to, in some ways, end the negotiations if (the players) don’t agree by Wednesday, because 47 percent is a non-starter -- we all know that," Feldman said. "So the owners have given the players an ultimatum with an artificial deadline, and it may force the players to respond with their own ultimatum. But both are destructive of the negotiation process.

"Clearly, what David Stern has said is designed to push the players to make a concession with the threat of essentially ending the negotiations," Feldman said. "And that’s what the players would be doing by threatening to dissolve the union."

A parallel threat to dissolve the union through a decertification vote already is under way, with players and agents dissatisfied with the union's representation consulting with anti-trust attorneys to weigh the costs and benefits of decertifying. But while a decertification initiated by union members has a better chance of holding up in court as not being a "sham," the disclaimer of interest route is more expeditious and could apply the leverage players are seeking without endangering the entire 2011-12 season.

A key difference, however, is that with a player-initiated decertification, union leadership would remain in power until the election, and thus, negotiations could continue. If Hunter steps aside and dissolves the union voluntarily through a disclaimer of interest, the union would have to reform before negotiations could continue.

"You can't flip a light switch on and off," Feldman said. "It’s a sobering process. Writing a letter one day and tearing up the letter the next day flies in the face of that."

That distinction makes a disclaimer a dangerous legal weapon for the union to implement at this point. The NBA already has sued the NBPA in federal court, seeking declaratory judgment that a disclaimer or decertification on the players' part would be illegal. If the union disclaims, in some ways it would strengthen the league's legal argument that it was planning to dissolve all along. But the union would have a valid counter-argument.

"Billy Hunter could make the argument that dissolving the union was never a strategy until Stern threatened to end the negotiations unless we agreed to every last one of their demands," Feldman said.

As evidence that he never intended to dissolve the union, Hunter could cite the players and agents who have become so enraged with his refusal to do so that they've begun the process of doing it themselves. In fact, for legal purposes, both a disclaimer and decertification could proceed on a parallel basis as a last-resort response to the league's ultimatum, Feldman said.

The biggest legal benefit to dissolving the union through a disclaimer would be that, once the union was transformed into a trade association, the players could almost immediately file an anti-trust lawsuit against the league -- which in theory would open the owners to not only the financial losses of a canceled season, but also anti-trust damages. In all likelihood, the players would file their action in the 9th Circuit in California, where more employee-favorable law exists. Since the league already has pre-emptively sued in the employer-friendly 2nd Circuit in New York, a messy and potentially lengthy jurisdictional battle would then unfold.

And while the disclaimer would be a more expeditious route to antitrust action, it would also be less likely to succeed than a decertification initiated by the players. Courts would be more likely to view a disclaimer as a bargaining tactic, rather than a decision with the true intent to dissolve.

NBPA outside counsel Jeffrey Kessler, who oversaw the NFLPA's disclaimer of interest, "wants to protect not only players in this negotiation but players' ability to use this weapon in the future," Feldman said. "He has to make it appear that this dissolution is a not a sham."

If either of these legal strategies becomes official, the hope of a swift end to the impasse at the bargaining table would be seriously imperiled. So Hunter's best move before Wednesday may be to directly ask Stern for another bargaining session before Wednesday in an effort to close the gap on the remaining system issues so he can bring the deal to the players for a ratification vote. If Stern refused, Hunter could advise him that he will have no choice to send him a disclaimer of interest letter -- and indeed, that even if he doesn't step aside, the players are planning to dissolve the union on their own through decertification.

The question of how Stern and the owners would respond to the players' own ultimatum is a risky and unknown game of roulette that union leaders will have to decide if they want to play.

"It could go either way," Feldman said. "It could cause enough owners to be skittish and want to avoid the risk of anti-trust litigation -- because if they lose there, it’s a huge loss. ... The other side is that it could cause Stern and the owners to say, 'We’re not going to let you manipulate labor law by threatening us with an anti-trust suit and we're going to take a stand.

"The question becomes: Do all of these threats bring the sides closer together," Feldman said, "or push them further apart?"

Since: May 23, 2009
Posted on: November 9, 2011 6:37 pm

Legal options: Players can give ultimatum, too

Any one of us goes to apply for a job at "company x".  We negotiate a salary or are told and then we decide if we take the job.  The NBA should be looked at like a job/business...the owners negotiate a deal with players and either the guy is signed or not.
That's the problem, an NBA team is NOT like "company X", and an NBA player is not like an unskilled laborer or a semi-skilled laborer in many of the industries where most of us would go to work.  A better comparison would be to artists or to musicians.  Some musicians play gigs at obscure venues and are just happy to do what they love doing and get paid, while others hate the business, but make millions lip-syncing to soldout stadiums full of screaming teenage girls.  Life just ain't fair.

Since: Oct 10, 2011
Posted on: November 8, 2011 9:53 pm

Legal options: Players can give ultimatum, too

I hate to tell you guys but our Country has only been around a couple of hundred years and the Union about 75 or 80 years. 500 years of Union rulings. Lol. That is classic.

Since: Sep 21, 2006
Posted on: November 8, 2011 8:35 pm

Legal options: Players can give ultimatum, too

Any decertification will be viewed as a sham. Sounds like a losing propisition to me. 500 years of law or not. This tatic has not been beneficial Vs any league in the entire history of sports. 

Since: Feb 2, 2007
Posted on: November 8, 2011 8:22 pm

Legal options: Players can give ultimatum, too

David Stern is opposing decertification of the union. The "NBA", is declaring that such is illegal. Why? Well obviously becaue they know decertificaion of the union will hurt them. Stern is demanding, from a legal aspect, that the players MUST bargin as a union, to be legal.

Hello ...... 

Here we have management DEMANDING that the players be unionized. (anyone else find this comical?) 

Talk about seeking to set 500 yrs of US union legal decisions on it's head. 

Really David, the workers must be a union so management can find gain?  

What a joke ............

Sten is mocking 500 yrs of US law here.  


Since: Oct 16, 2007
Posted on: November 8, 2011 6:53 pm

Legal options: Players can give ultimatum, too

Say goodnight Lucy until next season..........."Awwww, Ricky....".......lolol.  On to college basketball.  At least it isn't all about the SEC in basketball like football.

Since: Dec 5, 2006
Posted on: November 8, 2011 6:06 pm

Legal options:Suicide of a union

And while the disclaimer would be a more expeditious route to antitrust action, it would also be less likely to succeed than a decertification initiated by the players. Courts would be more likely to view a disclaimer as a bargaining tactic, rather than a decision with the true intent to dissolve.
Everyone has the option to commit suicide. Only fools take that option. What does it mean when someone threatens to commit suicide? It means they are desperate, sure. It also means they have lost perspective of what is best for themselves. It is a big sign of how inept this union leadership has been. They decry a timeline established by the owners. But they themselves have issued ultimatum after ultimatum. And it is these ultimatums that are now causing them to be humiliated. Calling a hard cap "a blood issue" is not productive. Saying 53% is as low as they will go is foolish (all the more so because they claim they have since offered 51%. Demanding all the system issues be their way or they will not consider the economic issues is still another example. There are already too many ultimatums.

As far as an anti-trust suits is concerned, the owners are prepared. It was evident last Spring that the union was intending to take this action and the NBA has already filed suit to stop it. Anti-trust? Of course not. If it was not anti-trust last year the same actions this year are not affected by a sham decertification or letter of disinterest. The NFLPA tried that already. How did that work out? The union got kicked where no guy wants to be kicked. This time the response will be the same. Playing games with the law and asking judges to bless the games is not effective. Just take the deal and get back to the courts you know, players. Perhaps there the ball will bounce your way.

Since: Jan 13, 2009
Posted on: November 8, 2011 5:17 pm

Legal options: Players can give ultimatum, too

these future McDonalds manager trainees dont get it--Noboby cares about : your league--your season--your union--your games or anything else about the nba--start you own league boyz--with the current leadeship like hunter, fisher, LeDung, Mellonhead, mrs bosh--lil dWayne etc, leading the way you should be albe to survive without these greedy plantation owners and afterall YOU are the game-right. so go get arenas, refs, and a schedule and the fans will come

Since: Jul 17, 2008
Posted on: November 8, 2011 4:28 pm

Legal options: Players can give ultimatum, too

Basic economic principles do not apply to every situation in business.  In a perfect world, businesses can worry about profit margins, but sometimes the bottom line is about staying afloat and trying to lose the least amount possible.

The NBA isn't about the bottom 80% of those players that would be begging for their job.  In fact, there are only about 15-20 players that matter in the league.  You could swap out 430 of the 450 players with the next best 430 guys, and the market value of the product would still be close to the same.

How much money do you think that the arenas would be worth without the NBA to support them?  You could probably buy those buildings for a dollar if the league ever tanks.

Since: Oct 10, 2011
Posted on: November 8, 2011 3:26 pm
This comment has been removed.

Post Deleted by Administrator

Since: Mar 17, 2010
Posted on: November 8, 2011 3:16 pm

Legal options: Players can give ultimatum, too


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