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: Jun 25, 2009
Posted on: November 8, 2011 2:41 pm

Legal options: Players can give ultimatum, too

Stern is trying to get an ultimatum but doing it the wrong way.  Is anyone truly surprised?

But as the article states, you have opened the door for the players to say:  'the owners are refusing to negotiate'.

No. You, like many others around here have it all wrong.  The owners DID negotiate, but there is a bottom line and they need to stick to it.  If you look at last year's revenue and the NBA's lost making 43 percent of all BRI, all you have to do is simple math to see the owners NEED 50 percent of the BRI to make a small profit.  It's not that hard man.... and no, the owners can't negotiate below that number because that would mean going into another CBA and another NBA season knowing they are going to lose money once again. Less money sure, but is that what you think an owner of a business does? He tries to negotiate his losses to be as small as possible?

I truly think contraction is the true resolution.  Get rid of the team owners that don't want to play.  Maybe the NBA players can purchase the arenas from the cities and put a team of their own on the floor and slowly but surely begin a players league.

 You should be a comedian because that's some funny stuff you wrote there.  NBA players are going to purchase all of the arenas?  That's way too funny man,,,, once again, awesome stuff.   Most of these players have trouble balancing their own personal checkbook, yet you think they can purchase arenas?  Who's going to finance them? Banks sure won't, that's for sure.  And neither will even one city.... nobody is going to finance a league full of thugs and illiterate people.  And you can't "slowly but surely" start your own league either.  Unless you're talking about a pickup league or street league, that's not going to happen either.  You need sponsors, advertisers, television contracts, marketing departments, sales people, and much much more.  Who's financing all of that?  

As for college ball, it will seriously lose its popularity and marketing if there is no NBA. 

The NBA will be back soon enough.  Maybe later this season, maybe next season or maybe the season after that.  But it'll be back,,, the question is who will the players be, that's all.  Trust me, 80 percent of today's NBA players would be on their knees begging for a job if today's NBA goes belly up and starts over. 

I'd like to see an NBA season but not to the expense of the owners getting what they want.  The whole idea of their greed makes me sick.  So I hope they lose and I hope they lose BIG.

How can the owners "lose BIG" when 23 teams lost money last season and the league lost a combined 300 million dollars last year? Oh yeah, I know how.  They lose big if they let the players have their way  and negotiate a bad contract.  But if they don't and they keep locking the players out, the players lose around 2 billion dollars, the owners save money..... they certainly don't lose big.  And even with lease payments and other league expenses the owners personally lose nothing.  They aren't personally liable for a thing... they work and live under corporations and other then league assets, nobody can touch them. 


Since: May 27, 2011
Posted on: November 8, 2011 2:33 pm

Legal options: Players can give ultimatum, too

Pleeeezzz cancel the seaon...BEACH VOLLEYBALL LEAGUE come on down...

Since: Jun 22, 2011
Posted on: November 8, 2011 1:59 pm

Legal options: Players can give ultimatum, too

TX is dead on regarding his comments. It's like the inmates running the asylam.
The fans should boycot and the NBA doesn't have the hold on it's fanbase so you may see some of that.
The players complain about "only" making millions and have little of no skin in the game. Most will sign at least one contract, sometimes thier first, and are set up for life. Some sign 2 or more and each sets them up for life.
If they get hurt do they get the full contract.
If you get hurt are you set for life or on a disabilty which is a percent of your earnings.

I have spent an ungodly amount of time searching for some info that states that injured players can never seek employment outside of the NBA and to no avail. It appears they are allowed to pursue other emplyment...can that be?
Can someone provide a link?

TX is incorrect in one area. LOL These guys should not stay in college and learn a trade or get an education. They are "special" or at least WE make it appear so.

Since: Sep 29, 2011
Posted on: November 8, 2011 1:46 pm

Legal options: Players can give ultimatum, too

This is all too funny.  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.

The owners should make more money than players....what if you made more than your current boss....would you listen to them or give a crud about them?  Do the players build arenas?  I know, not all owners do either, but if the city builds it, the owners have the pressure of filling it and that's only done by having a winning team on the floor. 

I hate these players with a higher than thou attitude.  But just like football, the fans are as much to blame...for buying $200 shoes and who knows how much on clothing pay through the nose for seats at games.  When/if the NBA ever plays, the fans should boycott it all...stop buying the endorsed's the only way to make the NBA and the mighty players feel our pain.  Of course...just like football, when the season begins all will be forgiven and forgotten. 

Cancel the whole dang season...who cares?  Let them fight all season long and play ball in foreign countries...let them make baby mommas abroad and spare us the welfare cases.  I laugh at every athlete that cries, I need money for my family...what?....the first 2 million wasn't enough?  Maybe had these guys stayed in college and became educated they could manage their money better, not to mention get a job and learn to work like the rest of us...

Since: Sep 22, 2007
Posted on: November 8, 2011 1:45 pm

Legal options: Players can give ultimatum, too

OK, so let's say that the players decertify the union.  They then file suit.  At this point, there are no damages because they've been agreeing to the arrangement to date.  That means the question becomes: What happens from here?  Obviously, the owners would no longer be able to act as a group and the players no longer act as a group.  Kind of looks like the rest of the world USA then.  Owners and players are free to sign whatever contracts they can enter into voluntarily.  The richer teams could out bid the poorer teams for all the good players, if they so felt.  Or, they could just pick and choose the ones they want at whatever price can be agreed.  Obviously, without having to discuss matters with other teams, they could decide that it would be in their best interests to allow other teams to have quality players, so the league would be competitive.  After all, it's hard to say that there was "collusion" if players are still getting paid millions a year.  Those players who felt they weren't getting paid what they are worth can do what everyone else does, they either accept the lesser amount or do something else. 

Something tells me that the players would end up on the short end of the stick here.  But, on the flip side, these salary caps have found their way into CBAs precisely because owners can't seem to control their own spending habits.  They'll spend a team into bankruptcy just to try to stay competitive.  But, that's not the players' fault.  So, it could get interesting.

Since: Jul 30, 2011
Posted on: November 8, 2011 1:38 pm

Legal options: Players can give ultimatum, too

I know that I have said that I won't be disappointed if the season is cancelled. As far as the league in general terms...? I don't believe that the league is in a healthy state right now and all of what is happening right now is what leads me to that thinking. I am wondering what the league would look like if in 1 or 2 years the players are largely college and some left over from today's NBA...? Can this league be wiped and restarted? Not to be radical or drastic or favoring one side or the other but, for the good of the game of basketball, can we just have a league of fairly compensated athletes who are more interested in honing skills and flooring great teams than reading the books of the various teams to see what is the maximum amount of money that they can extort? Just asking.

Since: May 23, 2009
Posted on: November 8, 2011 1:36 pm

Legal options: Players can give ultimatum, too

If the NBA were to "go away" permanently as some of you are calling for, you will not have the NCAA basketball to fall back on for too long.  After the athletes who are in the pipeline now filter through, future generations will switch to a sport where there is a possibility of turning pro and earning millions waiting for them at the end of their college career.  If the NBA were to go away, many of the most gifted athletes will switch to football or baseball, and those sports will become more competitive at the professional level, while NCAA basketball will gradually decline in significance and become an afterthought.  You have to realize that for a large percentage of the most talented athletes who actually make it to the NBA, earning a college degree is secondary.  As we already know, the prospect of earning a college degree is not a strong enough incentive to those who are probably good enough to make the jump to the pros right out of high school.  For those who hope to develop into a NBA player, why bother with basketball if there is no NBA to look forward to?  Don't get me wrong, I'm not saying that I value shooting hoops over hitting the books.  I'm just saying that the magnet that is pulling top-notch talent through the NCAA basketball programs is the hope or dream of playing in the NBA.  If you take that away, you've got nothing left but a team filled with rec ball players who may be good free throw shooters, and two or three decent athletes over 6'2".
Uh, no. If there is no NBA, yes, some athletes may go to other sports. But, don't you think this will encourage more than ever students who are players to stay in school? They are getting essentially a free college education. Now it won't be so secondary.

This by the way is how it should be. Go to school first and if you are good enough you might make it to the NBA.
Nope, I think the elite athletes, particularly the ones from low-income and middle-income backgrounds, will not play basketball at all, or will only play it as a second sport.  In my opinion, there is nothing that would prevent an elite athlete from continuing their education after they secure a multi-year, multi-million dollar contract.  The wise ones do just that even now.  I am most impressed by the athletes who earn degrees during summers while most of their contemporaries are out wasting money on SUVs, sound systems, and 26" rims.  Even if they are only attending an online university (like Shaq did), it is better than sitting around and playing Madden year round (wait...maybe not).

Since: Oct 4, 2006
Posted on: November 8, 2011 1:35 pm

Legal options: Players can give ultimatum, too

Yes, it does. Believe it or not, there are many, many fans who want the NBA season to start.  College hoops are great too, as well as high school. And if you honestly think you've watched better basketball watching women's college basketball then you are are truly not interested in the NBA in the first place.  And if you think it is rigged as well, then you are really are not the kind of NBA fan they are concerned with. Nothing personal, but you are the casual fan that they are not concerned with. 

Since: Oct 5, 2006
Posted on: November 8, 2011 1:09 pm

Legal options: Players can give ultimatum, too

Kobe would never pick KD.  Cause Kobe doesn't want to share the ball.  Kobe will pick Dwight Howard so he has a rebounding and defending force that complains about lack of shots but gets no where with his complaining.

Lebron will pick a guy like KD cause he is an all around player that is just as happy with assists as he is with points.


Since: Oct 5, 2006
Posted on: November 8, 2011 1:05 pm

Legal options: Players can give ultimatum, too

Tit for Tat.  That is what this is.

The owners are doing as they have been doing all along.  They will force the players to agree with their demands OR there will be no season.  If the players DO NOT STAND; the owners will do this for every negotiating year.  Which is why the players must take a stand. 

Stern is trying to get an ultimatum but doing it the wrong way.  Is anyone truly surprised?

But as the article states, you have opened the door for the players to say:  'the owners are refusing to negotiate'.

There will always be NBA ball.  The question is:  when and what teams?

I truly think contraction is the true resolution.  Get rid of the team owners that don't want to play.  Maybe the NBA players can purchase the arenas from the cities and put a team of their own on the floor and slowly but surely begin a players league.  

I'd like to see an NBA season but not to the expense of the owners getting what they want.  The whole idea of their greed makes me sick.  So I hope they lose and I hope they lose BIG.

In time, I'd like to see a players league where owners are not partners and not involved in the process.  Instead, they are just business men who rent an arena and share a very small amount of revenue.  Maybe donate the money to the city funds and the needs of the city.  It can be done.  And I hope I see it within my lifetime.  Screw the owners who think they own people....

As for college ball, it will seriously lose its popularity and marketing if there is no NBA.  To think otherwise, is to be foolish.  The true superior athletes will go into a sport in which they are able to become athletes on the biggest stage.  If that isn't basketball, you won't see five year olds with basketballs in their hands anymore...instead you'll see them with footballs and baseballs; heck maybe even a soccer ball.  Then college ball will be as unpopular as the WNBA.  It will be those that couldn't make it in other sports so just played ball to get the scholarship ride.  The best athletes still won't stay in school cause it is inhibiting their ability to make money.  If the NCAA would lift the stupid rules that says an athlete can't make money; these guys would stay in school.  That is the solution.  NCAA uses the students and the students use the NCAA.  So if you want them to stay; gotta allow them to do what they could do if they didn't stay...and that is make money.  After all, we don't go to college to NOT pursue a job with good money.  Do we?

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