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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: Oct 7, 2006
Posted on: November 16, 2011 10:28 am

Players sue NBA for antitrust violations

"Absolutely right.  I love these NBA bashers and the subtle undertones of there comments.  I wonder if they use the term "thug" when commenting on hockey stories."

Cme on, it happens all the time! Just the other day I heard someone mention what a thug Donald Brashear is.

Since: Sep 19, 2011
Posted on: November 16, 2011 10:05 am

Players sue NBA for antitrust violations

Awesome how people call the NBA players thugs because they listen to hip hop music, play a prodominantly black sport and have tattoo's.  Newsflash, most of your kids listen to hip hop music, play a prodominantly black sport(as most sports other than hockey are now prodominantly black) and probably have a tattoo you dont know about.  The NBA is just like any other league out there.  It has its good guys and its jerks!  Football players are far more violent and have pretty much the same amount of tattoo's they are just covered up by the uniform.  Hockey is probably the most brutal sport of them all, they willingly encourage you to fight to boost ratings! 

You say the players are greedy but they volunteered to take a paycut to keep the league operating and cover the loss' the owners are complaining about.  You want parity in the league but do you think this is the way to go about it?  You think any marquee player is now going to want to sign in Charlotte regardless of how much money they offer knowing they can go to New York, Florida, Texas or California, take half the contract and make triple the money in endorsements?  Players and agents hold grudges just like normal people but the exception is they can actually do something about it.  Stop calling the players greedy when they only accepted the contracts the owners offered them. If someone dropped 15 million a year on your lap to do your job you would take it also and if you say you wouldnt your a liar! They have willingly taken a paycut of 7% of BRI.

As far as the owners, they are correct that the system needs to be changed but taking a hardline stance saying basically "period point blank this is how its going to work, take it or leave it" isnt the way to do it.  In bargaining each side has to give a little and with that they will gain some things.  The system needs an overhaul though!  Small market teams cant compete financially, although there is no real connection between money spent and winning(orlando almost doubled chicago's payroll) and for those teams who have good management and bad luck they cant win.  Certain teams though just have bad management(Atlanta, Charlotte, Minnesota, etc...) and shouldnt be saved from themselves.  

Since: Jul 25, 2010
Posted on: November 16, 2011 9:33 am
This comment has been removed.

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Since: Sep 11, 2006
Posted on: November 16, 2011 9:03 am

Players sue NBA for antitrust violations

These players are hoping to get a couple billion without having to earn it. How pathetic, The boys are being bamboozled by their attorneys who are going to be the only winners here. I object because the UNION did not let the workers decide by a vote on what to do or to accept the contract. Hey you, yea the regular NBA players I have some news for you, this is not about you it IS about the guys at the top making even more money than they are now. Wake up because Le Bron, Duh Wade and the other so called superstars do NOT give a rats bass about you. They don't care about the rooks, the retired or anyone else. They are the ones who colluded to completely destroy competitive balance so when are you going to stop star gazing and get real. The fans, you know, the people who really pay your salaries deserve better than this. You deserve to be working with the last offer that you got because it was fair to you and the owners, stop thinking you deserve more because the fans deserve more from you. Stop these attorneys from stealing your money because you will not win your case because whether you like it or not the owners are allowed to make money. They are not supposed to have to go to their other businesses to subsidize your lifestyle. Even the courts can not argue against that.
 I think it is finally time for the courts to STOP these SHAM breakups of sports unions. That is not how it works in the real world and that is how it should be in the sports world. I think the courts should order that all participants of the disbanded union have no right to re-form for say 5 years and that all participants (union management) end all interference with the next round of negotiations. In other words your current union is TOAST, finito, over and any other way to say FINISHED! Sport Unions would stop this legal crap and actually negotiate a contraact for their players because their survival would be at stake. Just one man's humble opinion.

Since: Aug 28, 2006
Posted on: November 16, 2011 8:55 am

Players sue NBA for antitrust violations

It's unfortunate that the owners and players couldn't agree on a deal. 

What amazes me is that a lot of the players are trying to point out how greedy the owners are and yet a couple of these reported "hard liner owners" have yet to cut staff during the lockout. 

Meanwhile some players are trying to portray certain owners as the "good guys"...Micky Arison...this guy supposedly wants a deal (I'm sure we all know he wouldn't feel this way if he didn't have LBJ and Wade) well this guy cut staff salaries  . 

Dan Gilbert (supposedly a hard line owner) have yet to make any cuts from the people making ordinary salaries and to me that speaks volumes.  I would love for their to be an NBA season, but as long as owner are paying the minimum wage earners and guys making $40K/year (instead of $40K a game to sit the bench) it's going to be hard for people to sympathize with the players.

Who are the real bad guys here?

Since: Oct 10, 2011
Posted on: November 16, 2011 8:44 am
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Since: Jan 21, 2010
Posted on: November 16, 2011 8:16 am

Players sue NBA for antitrust violations

The NBS Association is dead.  Pull the plug, turn the arenas into storage units. At least the cities that own them can make something out of them. The owners have every right to close their business if they want to.   They can then focus on their other interests that are not causing so many headaches.  I do not see what the players are thinking because the way they are going, everyone loses. 

Since: Aug 4, 2011
Posted on: November 16, 2011 7:32 am

Players sue NBA for antitrust violations

well said. couldn't agree more

Since: Aug 4, 2011
Posted on: November 16, 2011 7:31 am

Players sue NBA for antitrust violations

well said. couldn't agree more

Since: Aug 4, 2011
Posted on: November 16, 2011 7:29 am

Players sue NBA for antitrust violations

ultimately, the winner here would be the LAWYERS 

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