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."
Tags: Anthony Tolliver, antitrust, Ben Gordon, Billy Hunter, Carmelo Anthony, Caron Butler, Chauncey Billups, David Boies, David Stern, Derrick Williams, Grizzlies, Kawhi Leonard, Kevin Durant, Knicks, Leon Powe, lockout, Mavericks, National Basketball Players Association, NBPA, Pistons, Spurs, Thunder, Timberwolves
Posted on: October 1, 2011 7:17 pm
Edited on: October 1, 2011 9:17 pm
NEW YORK -- After nearly eight hours of bargaining Saturday, negotiators for the NBA and its players association broke for the weekend -- still with no agreement and no regular season games lost, but "closer" to a compromise on system issues, commissioner David Stern said.
At the suggestion of National Basketball Players Association executive director Billy Hunter, the two sides "decoupled" the issues of the split of revenues and the system that would go with it, attempting to "break down the mountain into separate pieces," NBPA Derek Fisher said. The two sides exchanged proposals "back and forth," players' committee member Maurice Evans said, and agreed to meet again Monday in a small group with only the top negotiators and attorneys and Tuesday with the full bargaining committees.
"We're not near anything," Stern said. "But wherever that is, we're closer than we were before."
Hunter characterized the two sides as being "miles apart" even on the system issues that separate them as the owners and league negotiators try to incorporate system changes they feel "entitled to," Hunter said, by virtue of dropping their insistence on a hard team salary cap. Stern said no announcement regarding further preseason games being canceled would be made Monday, but warned that it's "day by day" after that.
Stern did not answer a direct question about when regular season games would have to be canceled, saying, "Stay tuned."
"I don't know whether the 11th hour is Tuesday or not," Hunter said. "... Time is moving in that direction."
The "modest movement" on system issues that one person in the negotiating room described to CBSSports.com came only after the two sides, at Hunter's suggestion, agreed to separate the division of basketball-related income (BRI) from the system issues such as the cap, contract length, nature of exceptions and luxury tax. The decision to tackle the two major sticking points in the negotiations separately came after players threatened to walk out of the bargaining session Friday upon learning that the owners have not moved off of their standing economic proposal that would give the players a 46 percent share of BRI -- down from the 57 percent they received under the agreement that expired July 1.
"We're very far apart in BRI and made no progress in that," NBPA lawyer Jeffrey Kessler said. "So we tried to see if we could make any progress in something else."
Of course, the system changes each side would be willing to tolerate in a finished agreement would be inextricably linked to the split of revenues. According to a person briefed on the negotiations, the players would be willing to accept more system restrictions if they achieved a BRI share of 53 percent, but there is no chance they would accept what the owners are proposing at their current offer of 46 percent or modestly more than that.
For example, at 53 percent there would be a willingness on the players' part to discuss modifications to the mid-level exception, eliminating base-year compensation and other restrictions such as the owners' proposed luxury-tax system, which in its current form would charge a tax of $1-$4 depending on how far over the tax a team spent. The owners have proposed reducing the starting mid-level salary at $3 million, while the players have signaled a willingness to negotiate down to $5 million from last season's level of $5.8 million.
In addition to BRI and system issues, the other key piece of the puzzle is the owners' revised revenue sharing system, which Stern has said would triple and then quadruple the existing pool of $60 million. On Saturday, Hunter called the owners' revenue-sharing plan "insignificant." Sources say it isn't just the amount of revenue sharing, but the timing of its implementation, that is holding up that part of the deal.
Under the owners' revenue-sharing proposal, the Lakers would contribute about $50 million and the Knicks $30 million toward an initial pool of $150 million, sources said. There is reluctance, according to one of the people familiar with the talks, on the part of small-market teams to increase the players' share of BRI to beyond 50 percent without a stronger commitment from the big-market teams to share more -- and to share more quickly in the first year of the deal. Some big-market owners are pushing for a more gradual phase-in of their increased sharing responsibilities and are reluctant to take the hit this coming season, one of the people with knowledge of the talks said.
Given the sheer numbers of issues and the distance between the sides, Hunter said, "It's a pretty wide gulf that we're dealing with."
But make no mistake: While the two sides remain entrenched on economics and don't see eye-to-eye on system, either, the work of building an agreement from the ground up -- piece-by-piece through a system both can agree on -- and then backing into the economic split is the only way this is going to get done in time to preserve regular season basketball.
"We weren't going to be able to make major, sweeping progress on the entire economics and the system at the same time," Fisher said. "We felt that maybe if we split them up and try to go at them one at a time ... we can at least get some momentum and some progress going."
The passion and emotion that were exhibited Friday were replaced by a "mellow" astmosphere on Saturday, according to Hunter. This was partly due to the negotiating process being focused on specific system issues as opposed to being more "rambling," as deputy commissioner Adam Silver said, and hinged on avoiding -- for the time being -- the most difficult problem facing the negotiators: how much of the league's $4 billion each side gets.
In addressing the passion that erupted early in Friday's session attended by superstars LeBron James, Dwyane Wade, Carmelo Anthony and others, Stern acknowledged a "heated exchange" with Wade. Without addressing the specifics of how Wade took exception to Stern's pointing and lecturing, Stern said, "I feel passionately about the system that we have and what it has delivered and what it should continue to deliver for the players and the owners. And he feels passionately, too. And I think that if anyone should step up on that, it’s my job, on behalf of the owners, to make the points that need to be made."
The stars were mostly absent Saturday, with LeBron, Wade and Melo heading to North Carolina to play in committee member Chris Paul's charity game. Among the players joining Fisher and committee members Evans, Roger Mason, Theo Ratliff and Matt Bonner on Saturday were Paul Pierce, Baron Davis, Arron Afflalo and Ben Gordon. The owners' committee was the same as it was Friday -- i.e. no Mark Cuban or Wyc Grousbeck -- with James Dolan leaving early to join the NHL's Rangers on an overseas trip.
Silver singled out Pierce in particular for being vocal in the bargaining sessions, and joked, "You have have heard Dwyane Wade had a few things to say in the meeting. ... The owners certainly heard the passion from the players and right back at them from the owners."
So what happens next? In a perfect world, the small groups of top negotiators are able to tailor the issues discussed the past two days into the framework of a system each side can agree to. Then, as Hunter said, it has to be "linked up again" with the split of revenues. To get all owners on the same page, the sharing of that revenue has to be addressed, too. In the absence of significant progress by Tuesday, the league will have to cancel another week or the remainder of the preseason schedule. Regular season games wouldn't be far behind.
But if a deal is going to get done to avoid all that, this is the only way to do it: divide the mountain of problems up and tackle each one separately. The stakes only get bigger, and the positions more entrenched after the next five days. The mountain gets bigger.
"The window is now to get a deal," one front office executive said.
And if not now? Brace yourselves.
Tags: Adam Silver, Arron Afflalo, Ben Gordon, Billy Hunter, Carmelo Anthony, Celtics, Chris Paul, David Stern, Derek Fisher, Dwyane Wade, Heat, Hornets, James Dolan, Knicks, Knicks, Lakers, LeBron James, lockout, Mark Cuban, Matt Bonner, Maurice Evans, Mavericks, National Basketball Players Association, NBPA, Nuggets, Paul Pierce, Pistons, Roger Mason, Spurs, Theo Ratliff, Wyc Grousbec
Posted on: July 2, 2009 10:13 pm
Ben Gordon to the Pistons is a done deal. The method by which he will get there is still under discussion.
CBSSports.com has learned that the Bulls and Pistons may yet revisit Detroit's agreement with Ben Gordon and instead investigate a sign-and-trade that would send Allen Iverson to Chicago.
Discussions have not yet reached the highest levels of both organizations, but the revised look at how Gordon goes from Chicago to Detroit would benefit Gordon and the Bulls. Gordon would get an extra year, and thus more money, by signing with the Bulls and getting traded. The Bulls, who currently are getting nothing for losing him, would get Iverson -- a fading future Hall of Famer who would get to finish his career in a major market as long as he's willing to accept a secondary role.
It's a farfetched scenario, and not everyone involved would be on board -- particularly the Pistons. The major sticking point would be how to sweeten the deal for Detroit, which would only consider such an option if it would provide significant cap savings. The Pistons took themselves out of the 2010 free-agent sweepstakes by agreeing to terms with Gordon and Charlie Villanueva on the first day of the free-agent negotiating period. Those agreements are not binding until July 8, when the league-mandated moratorium is lifted and the league and players association agree on the salary cap and luxury tax for the 2009-10 season.
A person familiar with the situation said the Pistons would flat-out refuse to entertain a sign-and-trade for Gordon unless it provided significant savings. The Bulls, too, may not be eager to do business with Gordon, whose agent did not give the team a chance to match Detroit's offer.
The Bulls also would want to know that Iverson, 34, would be totally committed despite not making the $20 million he's accustomed to and without playing the primary role he enjoyed for his entire career until he was traded to the Pistons for Chauncey Billups last season. Iverson did not adapt well to diminished minutes with the Pistons, and late in the season vowed to retire before he would come off another team's bench.
But Iverson apparently is invigorated by the prospect of getting past the Detroit experience. He wrote on his Twitter account Thursday, "For those of you who thought that I was done, think again! ... My only preference will be to play for a coach that knows what I bring to the table and that I am going to bring it every night."
It has been widely speculated that Iverson would land in Charlotte with his former coach, Larry Brown, with whom he had a rocky relationship in Philadelphia. But the two men respect each other, and Brown recently gushed about his time coaching Iverson. Beyond teams with cap space (Memphis, Oklahoma City, Sacramento) who wouldn't be interested in signing a veteran like Iverson, the options for A.I. are limited to sign-and-trades and, more likely, a deal for the mid-level exception or less.
While the sign-and-trade scenario with Detroit is farfetched, Iverson is exploring all options to find one more landing spot in an often tumultuous but Hall of Fame career.
Posted on: July 1, 2009 7:26 pm
Edited on: July 2, 2009 1:00 am
The Detroit Pistons struck first Wednesday, getting commitments from their top two free-agent targets, Ben Gordon and Charlie Villanueva.
Posted on: July 1, 2009 7:18 pm
Edited on: July 2, 2009 2:20 am
You want buzz? How's Ron Artest playing on the same team with LeBron James and Shaquille O'Neal?
Posted on: July 1, 2009 10:59 am
Eager to transform malaise from the salary-cap clearing Chauncey Billups trade into a new beginning, the Pistons believe they can land both Ben Gordon and Charlie Villanueva and are making their pitch on the first day of free agency, two people with knowledge of the situation confirmed to CBSSports.com.
Posted on: June 29, 2009 11:52 pm
A few months ago, Jazz forward Carlos Boozer was so convinced he would opt out of his contract and become an unrestricted free agent that he proclaimed, "I'm opting out, no matter what. I'm going to get a raise regardless."
Posted on: May 3, 2009 1:42 am
BOSTON -- As the Bulls started climbing back from double-digit, third-quarter deficit -- closing to within three points early in the fourth quarter in Game 7 against the Celtics on Saturday night -- I couldn't stop thinking about Ben Gordon's 3-pointer that was incorrectly ruled a 2-pointer way back in the first quarter.
It's a good thing the NBA got that one right.
Gordon lost the ball, and the crowd roared for a double-dribble, before he launched a 3-pointer that should've given the Bulls a 14-6 lead with 8:32 left in the first quarter. The game offcials called it a 2-pointer, much to the chagrin of the Bulls bench.
TV replays showed Gordon was clearly behind the 3-point line and should've been credited with three points. The referees reviewed the video during a timeout with 3:37 left in the quarter and inexplicably let the 2-point shot stand.
The way this series had gone, it seemed inevitable that Game 7 would come down to the thinnest of margins -- that being one meaasley point. Then the Bulls did what you expected them to do. They trimmed what had been a 12-point deficit late in the third quarter to three points, 81-78, early in the fourth.
Uh-oh. What a shame it would've been for this epic, classic series to end with an officiating controversy -- especially after the Board of Governors earlier this season had voted to expand the use of replay review to determine whether 2-point and 3-point baskets had been judged correctly on the court.
With 5:44 left in the game, the public address annoucer at TD Banknorth Garden informed the crowd that Gordon's first-quarter shot had been reviewed and changed to a 3-pointer. The extra point actually had been added to the scoreboard after the third quarter, but hardly anybody noticed. After the initial review by the game officials, the Bulls apparently called the league office to protest the ruling. Good thing they did -- especially if Game 7 had gone down to the wire like five of the other six games in this series.
See, it all works out in the end. Most of the time.