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: Sep 19, 2011
Posted on: November 8, 2011 1:40 am

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.
People are very frustrated at the NBA dispute and will say thing in a fit of anger, I been though the major sport dispute so many times that it no longer bother me. The NBA dispute will end some time in the future, the only question is how long it's going to take. I say another 3 to 5 months

Now there some people that hate the NBA and are posting that they hope NBA go away for good, since they were fans in the first place it won't hurt their feelings if the NBA stay gone. But it hard to tell who are the frustrated fans, to the non fans who hate the sport.

Since: May 23, 2009
Posted on: November 8, 2011 1:13 am

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".

Since: Dec 6, 2006
Posted on: November 7, 2011 11:48 pm

Legal options: Players can give ultimatum, too

This is far more fascinating than any NBA game. 

I hope this process stretches out as long as possible, the season is cancelled, and when they finally get around to playing games that the public doesn't show.

Since: Sep 11, 2011
Posted on: November 7, 2011 11:10 pm

Legal options: Players can give ultimatum, too

This just in......GET A DEAL DONE

Since: May 28, 2007
Posted on: November 7, 2011 10:56 pm

Legal options: Players can give ultimatum, too

take the offer and play your boring sport.the small market teams will never compete no matter what system they set up.the owners are all billionaires anyway,and none of them got there fortune by running a sports team.they are just toys for people like cuban and buss.too much ego involved for evryone to be happy.the fans dont lose out if there is no season,theres still football,college bball,pro wrestling,and hockey to watch all winter,let them all go to europe and play.

Since: Sep 29, 2006
Posted on: November 7, 2011 10:07 pm

Legal options: Players can give ultimatum, too

Berger talks to someone makes it into a story that isn't a story. It is like reading someone non-creative writing assignments for a lit class. He lacks total credibility.

Since: Sep 30, 2011
Posted on: November 7, 2011 9:53 pm

Legal options: Players can give ultimatum, too

The players would not last 3 or 4 months, maybe not even 3 or 4 weeks, let alone 3 or 4 years in court over a dissolution of the union.  The owers have other businesses and investments they can rely on for income, most of the players do not.  There is a lot to be said for staying power.

The lunatics do not get to run the asylum....................players should take the offer and get to work or just continue to pout.  Hope is not a strategy, just ask Obama.

Since: Sep 19, 2011
Posted on: November 7, 2011 9:41 pm

Legal options: Players can give ultimatum, too

Stern and the owners started the utlimatum game and it is hard to imagine just where they thought it was going to end. Did they really believe that Hunter and the players would come running to them with apologies for delaying the start of the season? Setting a drop dead date is a jackass move and I can't believe they are paying people to give them this kind of advice. Now the players will counter with their own move to show just how tough they are. Both sides are moving apart as the talks become more about personal feelings than the actual negotiating positions. Of course this will all become moot once we discover how little we miss the NBA.
Stern and the owners will do anythig to try to end  the  dispute even using the ultimatum game, In my opinion the owners and players won't come to agreement any time soon. I won't be surprise that it be way past February before the NBA is close to end their dispute, so I am going to see what happen the next couple of weeks.

Since: Jun 25, 2009
Posted on: November 7, 2011 9:32 pm

Legal options: Players can give ultimatum, too

Besides, there are 2 very good reasons players don't want to go down that path- an antitrust suit would take YEARS to settle, and what they could actually be awarded is very sketchy...

Exactly.  Ken Berger's stories and blogs are getting dumber by the second.  So let me get this straight Ken.  You're saying the players can give an ultimatum too?  Sure they can, it's an ultamitum that basically goes something like this.  "Mr Stern, if you stick to your threat, cancel more games and then take your offer off the table, I swear to God we'll decertify as a union and we'll be happy to miss 2 or 3 seasons if necessary to win this fight.  While your owners are prospering running businesses worth hundreds of millions or even billions of dollars, we'll hold our ground while our membership starves to death". 

LOL    I usually don't use "lol"  but this is funny stuff.

Seriously though, this anti trust lawsuit is a joke.  Like the poster I quoted said early in his post, there isn't a court on the planet that can make the owners personally liable for anything.   The players can only go after the NBA's assets, assuming they even win in court 2 or 3 years later.   What assets are there?  Even the buildings they play in aren't for the most part fully paid, there are mortgages on them, tax payers are involved, etc.   What do the players win in the end?  They lose 2 billion per season in salaries for God sakes, I guarantee the NBA doesn't have 2 billion dollars in assets when they just proved through audits they've been losing 300 million per season.

Since: Sep 20, 2006
Posted on: November 7, 2011 9:12 pm

Legal options: Players can give ultimatum, too

NO argument that ALL this is the owners' fault. They overpaid players for years.

The real issue is, owners can't continue down the path that got them here. They HAVE to say "no more".

Players aren't used to "no more".  Players are angry because owners refuse to continue negotiate a loss in the business that employs them, while the players demand guaranteed increases and no risk. Players want to negotiate tens of millions in endorsements they keep completely, but demand owners share their basketball related income with players. 

There is no human interest story here. There are no civil rights breakthroughs or landmark labor victories at stake. The economy isn't going to be made better or worse by whatever the NBA does. The NBPA isn't negotiating for black lung benefits for mine workers, or grandpa's pension he worked 42 years to get...No one is sacrificing for the greater good, or waging a battle to preserve an NBA for LeBron, Jr.... Owners aren't making players buy their groceries at the company store, or donating proceeds to cure cancer. Neither side is donating to help the working class people who are unemployed while millionaires argue with billionaires.  

Owners are trying to get back enough money to make a profit again, so investors, taxpayers, corporate sponsors, TV networks, the IRS and the U.S. President get off their backs. Players that have lived like drug lords since their early 20's, and have been told since they were 8 years old, that rules don't apply to them, just want more... more of the wealth, and more of the respect of the educated, articulate and entitled people that employ them, most without any of the required attributes. 

In one of the rarest of labor disputes, the employees wages are the biggest factor in bankrupting the business, yet the business owners are called greedy, liars and racists by those same employees.

In reality, neither side deserves the gifted existance they have. They both need each other less than they deserve each other. 

The world will survive without the NBA. Owners will be wealthy without the NBA. Some players will, too. Fans, taxpayers and The NCAA Mens Div I Basketball All-America team are the losers...owners and players only care about fans and taxpayers if they are getting something from them, and those NCAA players will have grades coming due before they can escape to an NBA payday.

What goes around comes around. 


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