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Players sue NBA for antitrust violations

Posted on: November 15, 2011 8:24 pm
Edited on: November 15, 2011 11:45 pm
NEW YORK -- NBA players sued the league alleging antitrust violations Tuesday, in part using commissioner David Stern's own words against him in making their case that the lockout is illegal.

With two antitrust actions -- one in California naming superstars Carmelo Anthony and Kevin Durant among five plaintiffs, and another in Minnesota naming four plaintiffs -- the players are seeking summary judgment and treble damages totaling three times the players' lost wages due to what lead attorney David Boies referred to as an illegal group boycott.

"There's one reason and one reason only that the season is in jeopardy," Boies told reporters at the Harlem headquarters of the former players' union, which was dissolved Monday and reformed as a trade association to pave the way for the lawsuits. "And that is because the owners have locked out the players and have maintained that lockout for several months. ... The players are willing to start playing tomorrow if (the owners) end the boycott."

The California case, filed Tuesday night in the Northern District, named plaintiffs who represent a wide array of players: Anthony, Durant and Chauncey Billups (high-paid stars); Leon Powe (a mid-level veteran); and Kawhi Leonard (a rookie). The plaintiffs in a similar case filed in Minnesota are Caron Butler, Ben Gordon, Anthony Tolliver and Derrick Williams.

Boies said there could be other lawsuits, and at some point, they could be combined.

It is possible, Boies said, that the players could get a summary judgment before the NBA cancels the entire season -- essentially a two-month timeframe. By that point, with the clock starting on potential damages Tuesday -- which was supposed to have been the first pay day of the season for the majority of players -- treble damages could amount to $2.4 billion.

"We would hope that it's not necessary to go to trial and get huge damages to bring them to a point where they are prepared to abide by the law," Boies said.

A statement released by the league office Tuesday night, spokesman Tim Frank said: "We haven't seen Mr. Boies' complaint yet, but it's a shame that the players have chosen to litigate instead of negotiate. They warned us from the early days of these negotiations that they would sue us if we didn't satisfy them at the bargaining table, and they appear to have followed through on their threats."

Earlier, Boies seemed to have anticipated this response, noting that the NBA's lawsuit in the Southern District of New York -- in which the league sought a declaratory judgment pre-emptively shooting down an eventual dissolution of the union -- came first.

"The litigation was started by the owners," Boies said. "... This case was started months ago when the NBA brought it there."

The crux of the players' argument is that, absent a union relationship to shield them from antitrust law, the 30 NBA owners are engaging in a group boycott that eliminates a market and competition for players' services and are in breach of contract and violation of antitrust law. The players are seeking to be compensated for three times their lost wages as permitted by law, plus legal fees and any other relieft the court deems necessary and appropriate.

One of the many issues to be resolved is where the lawsuits ultimately will be heard. The NBA almost certainly will file a motion seeking that the players' complaints be moved to the Southern District, which is in the more employer-friendly 2nd U.S. Circuit Court of Appeals. The Northern District in California is in the more employee-friendly 9th Circuit, while the Minnesota case was filed in the district residing in the 8th Circuit, where the NFL players ultimately fell short in their quest for a permanent injunction lifting the lockout.

The NBA players are not seeking a permanent injunction; rather, Boies said they are pursuing the more expeditious and fact-based summary judgment, which could save months of legal wrangling.

UPDATE: Boies asserted that the plaintiffs have the right to choose which appropriate court has jurisdiction over their lawsuit, and that the NBA's lawsuit in New York was premature -- since the NBA players had never before in their history of union representation since the 1950s disclaimed interest or decertified until Monday. In contrast to the NBA's argument that dissolution of the union and an antitrust action were the players' goals all along, the lawsuit laid out that the players participated in bargaining with the league for more than four years after they were first allegedly threatened with massive rollbacks of salaries and competition for their services. Boies said the players had continued to bargain for months while locked out, offering a series of economic concessions totaling hundreds of millions of dollars until they finally reached the owners' desired 50-50 split in the final days of negotiations.

Unlike the NFL Players' Association's failed disclaimer of interest and antitrust action, in which the players' case was harmed by the lack of certainty over whether the collective bargaining process had ended, Boies said there was no disputing that bargaining talks had concluded in the NBA -- and that Stern himself had ended them by presenting a series of ultimatums and "take-it-or-leave-it" offers that the players could not accept.

"They had an opportunity to start playing with enormous concessions from the players," Boies said. "That wasn’t enough for them. If the fans want basketball, there’s only one group of people that they can get it from, OK? And that’s the owners, because the players are prepared to play right now."

The NBA undoubtedly will argue that it was the players who ended bargaining when their union disclaimed, and that the disclaimer is a sham, or a negotiating tactic as opposed to a legitimate dissolution.

The lawsuits came one day after the players rejected the league's latest ultimatum to accept their bargaining proposal or be forced to negotiate from a far worse one. The National Basketball Players Association at that point disclaimed interest in representing the players any longer in collective bargaining with the league after failing to reach an agreement during the 4 1-2 month lockout that was imposed by owners July 1.

In the California case, Boies, his partner, Jonathan Schiller, and players' attorney Jeffrey Kessler laid out a meticulous case that the collective bargaining process had been ended by the owners and that the players had no choice but to dissolve the union and pursue their case via antitrust law. They laid out a series of concessions the players made in an effort to reach a deal, including a "massive reduction in compensation" and "severe system changes that would destroy competition for players."

The lawsuit quoted Stern's own demands when he issued two ultimatums to the union during the final week of talks, threatening the players both times to accept the offer (with a 50-50 revenue split and various restrictions on trades and player salaries) or be furnished a worse offer in which the players' salaries would have been derived from 47 percent of revenues in a system that included a hard team salary cap and rollbacks of existing contracts -- all deal points the two sides had long since negotiated past and abandoned.

Asked if Stern made a mistake issuing the ultimatums that ended the talks, Boies said, "If you're in a poker game and you bluff, and the bluff works, you're a hero. Somebody calls your bluff, you lose. I think the owners overplayed their hand."

In the California lawsuit, the players' attorneys alleged that the owners' bargaining strategy was hatched during a meeting between league and union negotiators in June 2007. In that meeting, the lawsuit alleged, "Stern demanded that the players agree to a reduction in the players' BRI percentage from 57 percent to 50 percent," plus a more restrictive cap system. Stern and deputy commissioner Adam Silver told Hunter, according to the lawsuit, that if the players did not accept their terms, the NBA was "prepared to lock out the players for two years to get everything." Stern and Silver assured Hunter in the meeting that "the deal would get worse after the lockout," the lawsuit alleged.

The threats of getting a worse deal after the lockout if the players didn't accept the owners' terms were repeated in a letter to the union dated April 25, 2011, according to the lawsuit -- which then laid out the contentious, sometimes bizarre, and almost indisputably one-sided negotiation that transpired over the next few months.

"I will give the devil their due," Boies said. "They did a terrific job of taking a very hard line and pushing the players to make concession after concession after concession. Greed is not only a terrible thing, it's a dangerous thing. By overplaying their hand, by pushing the players beyond any line of reason, I think they caused this."

Boies said it was in neither side's best interests for the action to proceed to trial, which could take years and multiply the threat of damages against NBA owners. Even in their current capacity as members of a trade association, the players could have a settlement negotiated on their behalf among the attorneys for both sides. The settlement could then take the form of a collective bargaining agreement, but only after the majority of players agreed to reform the union and the owners agreed to recognize it.

Another option would be for a federal judge to require both sides to participate in mediation under the auspices of a federal magistrate; attendance would be required, though the results wouldn't be binding.

"There's lots of ways to get started, but it takes two to tango," said Boies, who once sued Microsoft in an antitrust case and represented Al Gore in his failed 2000 presidential bid based on a disputed vote count in Florida.

"If you've got somebody on the other side who is saying, 'It's my way or the highway, it's take it or leave it, this is our last and final offer and you will not see negotiation,' you can't resolve this," Boies said. "That, I will predict, that will stop, OK? There will come a time when the league faces the reality of the exposure that they face under the antitrust laws, the exposure that they face because of fan dissatisfaction with their unilateral lockout, the exposure they face by having other people in the business of professional basketball. And they will believe it is in their best interests to resolve this case.

"I can't tell you when that will happen," Boies said. "But I will tell you that it will happen, because those forces are too strong for anybody to resist indefinitely."


Since: Apr 1, 2009
Posted on: November 16, 2011 3:20 pm

Players sue NBA for antitrust violations

I really don't care who people want to blame, if the entire season is lost, the players and owners will both regret their decision. With all of the tough economic conditions around the world, I don't see fans being able to relate to this fight on either side.

Since: Mar 16, 2008
Posted on: November 16, 2011 3:16 pm

Players sue NBA for antitrust violations

I could care less if the NBA has a season or not. It has become a soggy soup sandwich in the last 10 years. Teams are spread thin with great talent and the Miami Heat has turned it into a dumb soap opera.  Also, have these idiots ever heard of suits.  The photo with all the players standing around Derek Fisher is embarressing. Showing up to a meeting regarding your job in sweats, hoodies, and street clothes. What a bunch of classless morons.

Since: Apr 13, 2009
Posted on: November 16, 2011 3:15 pm

Players sue NBA for antitrust violations

Damn.....I had my Sonics season tickets renewed......
Oh ya....
NBA has been dead since then.
You wanna see just how crooked Stern is, watch this.....

Since: Sep 5, 2006
Posted on: November 16, 2011 3:00 pm

Players sue NBA for antitrust violations

Pats, what is accomplished by doing that?  The owner volunteered to own these teams - shutting them down does what?  If the owner has a problem with these "criminals" as you call them, why purchase the team?

You sound jealous of the players (and maybe there is valid ground for that, I guess, but I would rather see them on the court making money - or for you - instead of "roaming the streets")

As for me, well, I am bored without NBA games to follow, so I am now taking the time to respond to passionate-but-poorly-thought-out posts like yours.  However, the overall tone of your was negative, and mine was as well, so maybe I will just stick to responding to the inteligent or positive or humorous posts and ignore the bitter ones.  Sorry to have taken up your time.

Since: Nov 2, 2010
Posted on: November 16, 2011 2:48 pm
This comment has been removed.

Post Deleted by Administrator

Since: Sep 5, 2006
Posted on: November 16, 2011 2:35 pm

Players sue NBA for antitrust violations

Bestbuck - I have a college degree, have been working for 17 years and make approximately 100K per year (I did not start at that number, that is where I am now). And the AVERAGE ball players taken in the first round made more last year than I have made in my life.  The veterans minimum for players who have been in the league for 10 years is more than I have made in in my whole life. 

So the answer is "No, they do not wish they had a degree".  I think yours is a good question, but here is your answer.

Since: Oct 6, 2006
Posted on: November 16, 2011 2:02 pm

Players sue NBA for antitrust violations

but to say College games are more fun to watch is like saying WNBA is better than NBA
Your hyperbole is awful.  College basketball IS better than NBA, because the players are playing for something bigger than a paycheck. Each year a new school steps up to be great whereas the NBA's best players group together and dominate the league. Other than OKC, its the same ol same ol every year in the NBA. Who wants to watch that? Very few people do and even less now.

Since: Oct 6, 2006
Posted on: November 16, 2011 1:58 pm

Players sue NBA for antitrust violations

I wonder if most of those players who didnt finish, or even start, college are wishing they had thier degrees now. At least football players have to take a beating for their paychecks and all of them have to go to college for at least 3 years before the jump to the NFL. NBA needs to implement that same rule as well if they want anyone to ever give a crap about them anymore. The league has been garbage since the early 90's anyhow except for a couple of great moments. If they have to disband and come up with another league, I wouldn't lose any sleep over it.

Since: May 11, 2007
Posted on: November 16, 2011 1:58 pm

Players sue NBA for antitrust violations

Ideally negotiations end with both sides happy but that is not always possible.  The league lost a boat load of money during the last CBA so they are trying to get some of that back and become profitable and competitive.  The players don't want to go backwards.  I don't fault either side for the stances but in situations like this where the sides start so far apart there is seldom an equitable outcome.  The players will certainly not win the anti-trust case as no judge in his right mind would force a company to continue losing money when the labor is averaging $5,000,000 per year.  Simple logic should tell all of us that much.  Think about that precedent as it would relate to any unionized company.  It will never happen.  For the anti-trust case the judge will look at the NBA through the same glasses he would look at Ford Motor Company - he has to by law.  The owners need to void contracts and establish an open draft to fill all rosters.  Current players are welcome to enroll but it will be under the terms dictated by the league and the owners. 

Since: Sep 30, 2007
Posted on: November 16, 2011 1:51 pm

Players sue NBA for antitrust violations

though we gotta stop this 'College Basketball is better' thing...   it's the TOURNAMENT that's intriguing...  if NBA had a March Madness type of tournament (which they won't for $$$ reasons), than i'm sure all the NCAA fans would prefer the NBA 'June Madness'...   but to say College games are more fun to watch is like saying WNBA is better than NBA

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