Blog Entry

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: Jul 30, 2011
Posted on: November 16, 2011 7:27 am

Players sue NBA for antitrust violations

Doesn't all of this just make the game of basketball so much fun?! These aren't men playing a boy's game is men playing a lawyer's game...all for our enjoyment? I like sports and I enjoy basketball...but none of this represents anything that I want to watch or remember. Great job are inspiring even more greed...because you certainly aren't whetting our appetites to watch you play we know what is on your minds - and, stupidly, I thought you were thinking about breakouts and triangle offenses.

Since: Apr 15, 2008
Posted on: November 16, 2011 7:16 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.  I've seen way more people injured and nearly killed in hockey by stick wielding psychopaths, but I'm sure they don't throw the words around like "thug" and "criminal" and "uneducated" and "dumb" when describing white hockey players.  Very telling. 
Kudos for having some common sense. Your in the 1% territory, especially among the members at CBS Sports. 

Since: Sep 8, 2008
Posted on: November 16, 2011 6:58 am
This comment has been removed.

Post Deleted by Administrator

Since: Sep 8, 2008
Posted on: November 16, 2011 6:55 am
This comment has been removed.

Post Deleted by Administrator

Since: May 29, 2010
Posted on: November 16, 2011 5:39 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.  I've seen way more people injured and nearly killed in hockey by stick wielding psychopaths, but I'm sure they don't throw the words around like "thug" and "criminal" and "uneducated" and "dumb" when describing white hockey players.  Very telling. 

Since: Nov 15, 2011
Posted on: November 16, 2011 5:31 am

Players sue NBA for antitrust violations

Cancel th season Already and let these crybsby millionares work at Walmart !!!!!!

Since: May 17, 2007
Posted on: November 16, 2011 2:00 am

Players sue NBA for antitrust violations

  As a Mavs fan, it would be great for them to be the last ever NBA champion!

I think if you surveyed America, about 500 would even know that.

Since: Nov 7, 2011
Posted on: November 16, 2011 1:45 am

Players sue NBA for antitrust violations

My friend you are talking about one legal badass (Boies). ONe of the best lawyers in USA. Good luck NBA....You wanted it - You Got it

Actually he isn't. Look at the beating he took on SCO's behalf suing over Linux.

Since: Jun 25, 2009
Posted on: November 16, 2011 1:37 am

Players sue NBA for antitrust violations

They are saying to themselves that no matter where I can from, you are no more worthy of wealth than me. They are saying that my talent and ability put me here, and you will not use my talent to further your greed any longer. The players are the product that has made these so called wealthy men wealthier. People say, get a real job, but how many of you have a job that people pay big money to watch you do? You sound jealous, when you say their salaries are rediculous, but the wealthy getting wealthier, off the sweat and physical ability of someone else is not rediculous? Some people just dont think when they write something. Tell you what, you go watch those wealthy men play basketball, then they can have all the money!

You're knocking the people that support the owners but are no different then anybody else, the only difference being you support the players.  You are just as one sided as everybody else, quit pretending like you aren't.  Think before you type....

The owners are asking for a 50-50 split on BRI, how does an even split "further their greed" ?  The players were getting 57 percent of BRI for many years, enough is enough.  Why shouldn't the owners receive at least half of the revenues when the owners are taking 100 percent of the risk?  Ask yourself another question.  Why doesn't any union in sports EVER offer to make it a real partnership and take some risk?  

The only other thing the owners are asking is the luxury tax penalties increase so eventually there is some parity in the NBA.  So teams in smaller markets actually have a chance in hell of winning a championship once in a while.   So teams in smaller markets aren't losing money missing the playoffs year after year after year and actually bring in some playoff revenue and actually profit nicely once in a while.  The unions idea of solving that problem with increased revenue sharing is the biggest joke of all.  Why should the Lakers share any of their profits with small market teams?  Do players share money with each other? Would they ever do that, even if we hypothetically say it would save the NBA?  No way... the players wouldn't share a penny of their salaries with others....

One more place you're a little confused is real NBA fans aren't following the NBA for or because of today's NBA players.  They follow the NBA for two reasons.  One, they love the sport. And two, they love their TEAM.....  Real fans shouldn't give a rats ass about THESE players, they should care about the team in their city or the team they support.  Players come and go, and the league continues to grow.  Kareem retired, so did Magic and guess what? The Lakers fans didn't go anywhere. And if Kobe quits or retires guess what?  Lakers fans will stick with their team.

By the way, anybody that thinks the players have even a ONE PERCENT chance of winning this anti trust lawsuit and beating the owners for up to 3 times of their lost salaries is losing his or her mind.  The owners have lawyers too, and great lawyers at that. If they believed for one second they could be on the hook very soon for not only back pay but an additional 1.6 billion dollars they would either have given in or bankrupted the NBA.  But the owners have been advised they aren't going to lose a thing.... and trust me, they won't.

But I'll play.. let's say for arguments sake the league loses in court, and loses up to 2.4 billion dollars to the players. Guess what happens?  The NBA is gone... the league goes belly up and the players get SQUAT..... they can't legally touch the owners personally. All they could take is the league's assets.....  good luck with that.  What are they going to get? Arenas the taxpayers own? Basketballs?  

It's hilarious the players would agree to this...... but hey, dumb and dumber wasn't just a movie.  The union and the players make the actors in dumb and dumber look like Mensa members. 

Since: Apr 15, 2008
Posted on: November 16, 2011 1:14 am

Players sue NBA for antitrust violations

I wouldn't call anyone a moron with the language you use. Worthless is one word.  "they some of them" is not English.

I wouldn't jump to conclusions that anyone lives in a "white suburb" becuase they think that the NBA is a bunch of overpaid thugs.  These are the same guys who cried when they had to buy suits to wear claiming they couldn't "afford" them.

NBA Players - 1%.  Shouldn't Occupy NBA be started to protest them?
I am sincerely sorry that I mispelled one letter Mr. Grammar police. 

what exactly does "becuase" mean? does that mean your worthless as well because you mis spelled a word? I believe it does, you should have a better attitude towards your self. it's ok, you can grow, you won't be "worthless" your whole life.

When people say such moronic thing's as you do, you should be immediately banned for life and blocked from viewing this website.

I am not on here to argue, but if people want to try and argue with me I am going to point out your mistakes and flaws.

All I am trying to say when you look at how many NBA players there are, the percentage who have actually been in trouble with the law is very small. If you don't like the game, don't watch it, don't support it. I don't like soccer, so you don't see me commenting or paying any attention to it.

The views expressed in this blog are solely those of the author and do not reflect the views of CBS Sports or