Blog Entry

Decert plans continue; multiple lawsuits?

Posted on: November 15, 2011 4:08 pm
NEW YORK -- As lawyers representing NBA players who plan to sue the league for antitrust claims weighed their legal options Tuesday, other attorneys involved in the decertification movement still were planning to file players' petitions seeking to dissolve the union on their own, a person involved in the process told

While the letter of disclaimer sent by former union executive director Billy Hunter to David Stern Monday effectively dissolved the union and paved the way for an antitrust action against the league, agents representing some 200 players who already have signed decertification cards believe it will help the players' cause to submit them to the National Labor Relations Board. The agents believe that a statement from far more than the 30 percent of players required to initiate a vote ousting the union leadership will help the union's argument in federal court that the disclaimer of interest was a last resort and not a negotiating tactic or a "sham."

"The players gave up everything they could possibly give, and they still couldn't get a deal done," the person involved in decertification said.

In addition, the filing of decertification petitions would be proof that Hunter had no choice but to disclaim interest in order to get an expedited remedy for players. If he hadn't, the players were going to vote him out anyway -- which would've resulted in a more lengthy legal process since the players would've had to wait 45-60 for the NLRB to authorize an election. For the players to move forward with their decert case, the NBPA's unfair labor practices charge against the league -- filed in May and amended in July, when the NBPA was still a union -- would have to be withdrawn.

Meanwhile, one of the options the players' antitrust attorneys are considering is whether to file multiple lawsuits against the NBA. The main class action would be on behalf of players under contract, and logically would not include a player whose last name begins with the letter "A." Plaintiffs are listed alphabetically, and the name with the most impact would be that of future Hall of Famer Kobe Bryant -- although Bryant's level of interest in being listed as the lead plaintiff is unknown. Bryant, in the final few years of his career, has deliberately taken a secondary role in the labor talks, preferring instead to allow players who would be most affected by the outcome to take the lead.

A second potential lawsuit would be specifically on behalf of the league's rookies and free agents, none of whom is under contract. The legal reasoning flows from the majority opinion by the 8th U.S. Circuit Court of Appeals in the NFL Players Association's antitrust lawsuit against the NFL. The panel made a distinction in its opinion about rookies and free agents that some antitrust lawyers have interpreted as a sign that courts would be more likely to determine that the NBA's lockout is illegal within the narrow scope of players who are not under contract. In the NFLPA's case, the 8th Circuit strongly implied that employees not under contract could not be locked out, but did leave room for those players to be included in the lockout once they were given a chance to market their services and negotiate contracts with teams.

The players' goal in the antitrust action is to get a summary judgment in federal court -- either in the Southern District of New York, where the NBA already has established the venue with a pre-emptive lawsuit against the NBPA, or a court in a more friendly appeals circuit -- that would include treble damages (three times the players' monetary losses). If such a judgment could be achieved in 60 days, as Hunter predicted Monday, the players will have missed paychecks totaling about $800 million -- making the potential for treble damages $2.4 billion.


Since: Sep 20, 2006
Posted on: November 17, 2011 9:25 pm

Decert plans continue; multiple lawsuits?

Justice, sometimes does prevail.

I don't mean justice in players winning any lawsuit....

Billy Hunter and his legal staff are the ONLY people that wil get paid millions during this quagmire....they'll get paid millions to drag their azz down their half-hearted, legal road to nowhere, for months or years, BY the same players they denied a $2 billion per year paycheck by not allowing a majority vote...and those players will pay their lawyers, regardless of their embarrassingly inept performance in representing them, without drawing a check themsleves....owners probably can relate.  

"What goes around, comes around". There is some justice in that.

Since: Sep 5, 2006
Posted on: November 15, 2011 6:03 pm

Decert plans continue; multiple lawsuits?

There has to be at least one lawsuit. Otherwise there's literally no point in filing the disclaimer of interest and possibly decertifying the union. If they're waiting for the owners to get scared and blink, they're going to have a long wait. Personally, I do think the union - or the artist formerly known as the union - is waiting for Stern to cave just a tad, call Kessler, and broker a settlement before this goes over the cliff. There are two problems with that: first, the players have virtually no shot of winning any of their potentail suits, which wouldn't even be decided for years. Stern knows it. Threat: removed. Second, Kessler and Stern hate each other. I have no idea what the players were thinking with the disclaimer. The NFLPA actually decertified, which allowed Goodell and Smith to still talk. With the disclaimer, Hunter is out of the picture in the negotiating room. It also is not a practice that is smiled upon in court. And while I know why Hunter prefered the disclaimer (he still gets a salary), and why Kessler and Boise did (billable hours!), I'm at a loss as to why the players wanted it. They're going to crawl back sooner or later and take the owners' full boat: rollbacks, hard cap, guaranteed deals, 40% BRI, the whole deal. Just ask the NHLPA who will cave first.

Since: Oct 26, 2010
Posted on: November 15, 2011 5:57 pm


Lead plaintiffs:  Kobe, Lebron, Melo!!!

Since: Nov 7, 2011
Posted on: November 15, 2011 5:25 pm

This is like....

This is like attornies suing a chain of closed stores on antitrust graounds on behalf of workers who no longer work in any of the stores. Lawyers BIG problem is the NBA has unilaterally implemented nothing like was the case with MLB or 1989 NFL.

Since: Dec 23, 2007
Posted on: November 15, 2011 4:43 pm

Decert plans continue; multiple lawsuits?

Well... these guys can always get tents with the Wall Street Occupiers... Wait they were evicted today also.

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