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: Nov 13, 2007
Posted on: November 8, 2011 12:36 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.

Since: Jan 8, 2008
Posted on: November 8, 2011 12:25 pm

Legal options: Players can give ultimatum, too

You got it figured out Einstien, tell us when Jesus is coming back.

Since: Nov 6, 2011
Posted on: November 8, 2011 11:29 am

Legal options: Players can give ultimatum, too

You are a moron.

Since: Jan 3, 2010
Posted on: November 8, 2011 11:28 am

Legal options: Players can give ultimatum, too

The owners can do the same thing. we could have 2 leagues. Remer the movie Replacements?

Since: Aug 17, 2010
Posted on: November 8, 2011 11:24 am

Legal options: Players can give ultimatum, too

Last thing I would want to see is a Player run league.

How do they decide the teams? Pick two captains?

Kobe: Ok I get first pick...ummmmm Kevin Durant
James: What why do you get KD?
Kobe: Rules are rules.

I mean really..... 

Since: Apr 22, 2009
Posted on: November 8, 2011 9:16 am

Legal options: Players can give ultimatum, too

The owners should get together and terminate the NBA.  That way the owners and players start over.  ALL the players free agents, all entered in a big draft.  Players could not win any lawsuits because the NBA was disbanded.

Since: Dec 15, 2010
Posted on: November 8, 2011 8:57 am

Legal options: Players can give ultimatum, too

the players can  strat their own league and get 100% of the revenues Let them invest their own money into the gamwe as the owners did sdo tjhey can reap[ all the rewards, Far as I am concerned the players should be happy with their paychecks.They are EMPLOYEES after all. Its not their bosses's fault[owners] that the employees[players] dot spend their paychecks wisely

Since: Feb 1, 2007
Posted on: November 8, 2011 8:41 am

Legal options: Players can give ultimatum, too

Who cares if there is a NBA season? There is plenty of college basketball to watch. They even have high school games on tv. I watched better basketball watching a college girls team.

 The NBA seems rigged anyway. The refs call more fouls on the teams the league want to lose. If the NBA folds, does it really matter?

Since: Sep 19, 2011
Posted on: November 8, 2011 7:44 am

Legal options: Players can give ultimatum, too

Basketball has lost more money and there reputation for the league is almost 000000000  Just like baseball and hockey did when they went through a lock out its the worse outcome possible

Since: Mar 17, 2010
Posted on: November 8, 2011 1:42 am

Legal options: Players can give ultimatum, too

Players would have an easy anti-trust win -- and that win would carry treble damages and would bankrupt many owners.  Get to it, players and end this insanity where the owners think they own you. 

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