Tag:NFLPA
Posted on: November 15, 2011 4:08 pm
 

Decert plans continue; multiple lawsuits?

NEW YORK -- As lawyers representing NBA players who plan to sue the league for antitrust claims weighed their legal options Tuesday, other attorneys involved in the decertification movement still were planning to file players' petitions seeking to dissolve the union on their own, a person involved in the process told CBSSports.com.

While the letter of disclaimer sent by former union executive director Billy Hunter to David Stern Monday effectively dissolved the union and paved the way for an antitrust action against the league, agents representing some 200 players who already have signed decertification cards believe it will help the players' cause to submit them to the National Labor Relations Board. The agents believe that a statement from far more than the 30 percent of players required to initiate a vote ousting the union leadership will help the union's argument in federal court that the disclaimer of interest was a last resort and not a negotiating tactic or a "sham."

"The players gave up everything they could possibly give, and they still couldn't get a deal done," the person involved in decertification said.

In addition, the filing of decertification petitions would be proof that Hunter had no choice but to disclaim interest in order to get an expedited remedy for players. If he hadn't, the players were going to vote him out anyway -- which would've resulted in a more lengthy legal process since the players would've had to wait 45-60 for the NLRB to authorize an election. For the players to move forward with their decert case, the NBPA's unfair labor practices charge against the league -- filed in May and amended in July, when the NBPA was still a union -- would have to be withdrawn.

Meanwhile, one of the options the players' antitrust attorneys are considering is whether to file multiple lawsuits against the NBA. The main class action would be on behalf of players under contract, and logically would not include a player whose last name begins with the letter "A." Plaintiffs are listed alphabetically, and the name with the most impact would be that of future Hall of Famer Kobe Bryant -- although Bryant's level of interest in being listed as the lead plaintiff is unknown. Bryant, in the final few years of his career, has deliberately taken a secondary role in the labor talks, preferring instead to allow players who would be most affected by the outcome to take the lead.

A second potential lawsuit would be specifically on behalf of the league's rookies and free agents, none of whom is under contract. The legal reasoning flows from the majority opinion by the 8th U.S. Circuit Court of Appeals in the NFL Players Association's antitrust lawsuit against the NFL. The panel made a distinction in its opinion about rookies and free agents that some antitrust lawyers have interpreted as a sign that courts would be more likely to determine that the NBA's lockout is illegal within the narrow scope of players who are not under contract. In the NFLPA's case, the 8th Circuit strongly implied that employees not under contract could not be locked out, but did leave room for those players to be included in the lockout once they were given a chance to market their services and negotiate contracts with teams.

The players' goal in the antitrust action is to get a summary judgment in federal court -- either in the Southern District of New York, where the NBA already has established the venue with a pre-emptive lawsuit against the NBPA, or a court in a more friendly appeals circuit -- that would include treble damages (three times the players' monetary losses). If such a judgment could be achieved in 60 days, as Hunter predicted Monday, the players will have missed paychecks totaling about $800 million -- making the potential for treble damages $2.4 billion.




Posted on: September 15, 2011 12:16 pm
 

DeMaurice Smith to address NBA players

Facing the difficult challenge of keeping the union together in the face of stalled labor talks with the owners, the National Basketball Players Association has recruiited NFL players' union executive director DeMaurice Smith to address locked-out players in Las Vegas Thursday.

A person connected to the NBA talks confirmed that Smith will speak to a gathering of about 70 NBA players at a Las Vegas hotel as players and owners meet separately to brief their constituents on the negotiations. The owners' Board of Governors is meeting Thursday in dallas.

According to SI.com, which first reported Smith's involvement, the invitation came from NBPA president Derek Fisher, who hopes that Smith will be able to explain to the players the importance of remaining united during the lockout. Smith, who directed his first collective bargaining talks with the NFL and secured a new CBA that ended the lockout without losing games, also is expected to tell the players that the NFLPA's strategy of decertification does not necessarily apply in the same way to the NBA talks.

For one, the NFL players faced a collectively bargained deadline to decertify and disband their union in an effort to thwart the owners' lockout. The strategy was never addressed in a broad ruling by the 8th U.S. Circuit Court of Appeals in the NFL case, and labor law experts fear such a strategy by the NBA players would be so time consuming that it would jeopardize a significant portion of the season with no guarantees of a favorable ruling in federal court.

Either way, Smith's presence at the critical NBA players' meeting is sure to generate commentary from both sides of the decertification argument. For several high-profile agents pushing for a decertification vote that could topple NBPA chief Billy Hunter, the irony will not be lost that Smith will be preaching unity to the NBA players after following a strategy that temporarily dissolved his own union in the NFL talks.

Fisher and teammate Kobe Bryant are represented by agent Rob Pelinka, who is not among the agents pushing for the union to disband. So you can see where this is going. Fisher is embracing his role as the point man charged with keeping players with varying agendas and pay levels on the same page. Having offered to make an economic move that league negotiators believe would've been an important step in the negotiations, the NBPA is trying to preserve a flexible cap system and thwart the contingent of owners who seem to be willing to lose the entire season over their insistence on instituting a hard salary cap.

To that point, Smith is likely to come away from Thursday's meeting with as much enlightenment as the players listening to him. This NBA labor fight makes the one Smith resolved with the NFL look like a minor disagreement over who picks up the check at one of those cheap, all-you-can-eat Vegas buffets.

Posted on: July 28, 2011 3:44 pm
 

Bargaining: Blink and you'll miss it


NEW YORK -- Owners and players finally will get together for a full-fledged bargaining session Monday, one month to the day since the NBA imposed a lockout.

Don't get your hopes up.

During the 1998-99 lockout, which killed the All-Star Game and nearly half the regular season schedule, NBA owners and players reconvened on Aug. 6 for a bargaining session that didn't last long and didn't go well. The owners got up and left upon receiving the players' new proposal.

I can't predict whether Monday's session -- the first including commissioner David Stern and union chief Billy Hunter since the lockout was imposed July 1 -- will be similarly dramatic and unproductive. Well, unproductive, yes. If we've learned anything over the past two years, it's that these negotiations are going nowhere fast.

Monday's session will be good for business at the Omni Berkshire Hotel, but that's about it. It'll be like Seinfeld -- a show about nothing.

For one, the pressure of losing regular season games isn't real yet for either side. Neither is the threat of losing money, especially after it was revealed last week that not only will the players get their $162 million escrow withholding back because salaries did not exceed 57 percent of BRI, but they also will receive an additional $26 million because salaries came in slightly lower. That's $188 million deposited into the players' lockout warchest, paid out according to salary.

But the real issue, which we'll explore further on Friday, is that no legal threat or leverage has emerged to force either side to move significantly off its position and bargain -- no, compromise -- for a deal. As of now, the players are waiting for the National Labor Relations Board to decide whether to issue a complaint against the NBA based on their charge of failing to bargain in good faith, among other things. Most legal experts believe the players will be waiting another 30-60 days for that decision, at least. But if it results in a complaint, the NLRB could ask a federal district court for an injuction suspending the lockout -- an outcome that wouldn't be likely if the NBPA decertified and filed an anti-trust lawsuit like the NFLPA did. Just something to keep in mind for those clamoring for the NBPA to decertify. It isn't time for that yet.

Eventually, both sides are going to have to solve this at the bargaining table. But as you'll see in Friday's column setting the stage for the next bargaining session, the pressure to do that is only going to come from a judge, a court, or the NLRB. Until then, enjoy Monday -- opening day in this summer of pointless negotiations leading nowhere.

Category: NBA
Posted on: July 28, 2011 3:42 pm
Edited on: July 28, 2011 3:46 pm
 

Bargaining: Blink and you'll miss it


NEW YORK -- Owners and players finally will get together for a full-fledged bargaining session Monday, one month to the day since the NBA imposed a lockout.

Don't get your hopes up.

During the 1998-99 lockout, which killed the All-Star Game and nearly half the regular season schedule, NBA owners and players reconvened on Aug. 6 for a bargaining session that didn't last long and didn't go well. The owners got up and left upon receiving the players' new proposal.

I can't predict whether Monday's session -- the first including commissioner David Stern and union chief Billy Hunter since the lockout was imposed July 1 -- will be similarly dramatic and unproductive. Well, unproductive, yes. If we've learned anything over the past two years, it's that these negotiations are going nowhere fast.

Monday's session will be good for business at the Omni Berkshire Hotel, but that's about it. It'll be like Seinfeld -- a show about nothing.

For one, the pressure of losing regular season games isn't real yet for either side. Neither is the threat of losing money, especially after it was revealed last week that not only will the players get their $162 million escrow withholding back because salaries did not exceed 57 percent of BRI, but they also will receive an additional $26 million because salaries came in slightly lower. That's $188 million deposited into the players' lockout warchest, paid out according to salary.

But the real issue, which we'll explore further on Friday, is that no legal threat or leverage has emerged to force either side to move significantly off its position and bargain -- no, compromise -- for a deal. As of now, the players are waiting for the National Labor Relations Board to decide whether to issue a complaint against the NBA based on their charge of failing to bargain in good faith, among other things. Most legal experts believe the players will be waiting another 30-60 days for that decision, at least. But if it results in a complaint, the NLRB could ask a federal district court for an injuction suspending the lockout -- an outcome that wouldn't be likely if the NBPA decertified and filed an anti-trust lawsuit like the NFLPA did. Just something to keep in mind for those clamoring for the NBPA to decertify. It isn't time for that yet.

Eventually, both sides are going to have to solve this at the bargaining table. But as you'll see in Friday's column setting the stage for the next bargaining session, the pressure to do that is only going to come from a judge, a court, or the NLRB. Until then, enjoy Monday -- opening day in this summer of pointless negotiations leading nowhere.

Category: NBA
Posted on: July 8, 2011 4:33 pm
 

What 8th Circuit ruling means for NBA lockout

What does Friday’s ruling by the 8th U.S. Circuit Court of Appeals in the NFL labor dispute mean to the NBA lockout?

Not a whole lot, it turns out.

The appeals court rendered a narrow ruling Friday overturning a decision by U.S. District Court Judge Susan Nelson that briefly ended the NFL lockout. The three-judge panel, having already issued two stays of Nelson’s ruling, voted 2-1 to overturn it, saying that federal courts have no jurisdiction to end lockouts under the Norris-LaGuardia Act.

The appeals panel did not, however, rule on the broader aspects of the NFL’s appeal – namely, whether the NFL is immune from anti-trust liability during the lockout and whether the players can legally pursue damages as the result of it. Those issues were remanded to Nelson’s court for further hearings.

From the NFL’s standpoint, all of this is likely to be moot, anyway, as the owners and players have been closing in on a new labor deal for weeks. The NBA? Not so much. Other than unrelated business dealings, sources told CBSSports.com Friday that there has been no contact between the NBA and the National Basketball Players Association since the lockout was imposed July 1. No bargaining sessions are scheduled, the sources said, and neither side offered a comment on the NFL ruling Friday.

Interestingly, the appeals court also left open the possibility that NFL free agents and drafted rookies who have yet to sign contracts may be permitted to market their services and enter into contracts with prospective teams. This issue also was kicked back to the district court for hearings, but it may prove to be meaningless. Since the appeals court ruled that the district court could not enjoin the lockout, any rookies or free agents who signed contracts would then be locked out anyway if no bargaining agreement has been reached.

So the NBPA will likely not be swayed one way or the other as it weighs the costs and benefits of following the NFLPA’s path of decertification and an anti-trust lawsuit. The NBPA has thus far determined that bargaining is a better path to a CBA than litigation, but the 8th Circuit’s ruling Friday did not present any legal obstacles to decertification; it only stated that a federal court does not have the authority to end a lockout once it is imposed on a decertified union.

If you have nothing to do this weekend – meaning, there is no paint to watch dry or grass to watch grow – you can read the 8th Circuit’s majority and dissenting opinions here.

 
Posted on: March 11, 2011 7:20 pm
Edited on: March 11, 2011 10:39 pm
 

NFLPA's tactic will be blueprint for NBA talks

The decision Friday by the NFL Players Association to decertify and attempt to block a lockout by owners has wide-ranging implications for the NBA labor talks. While NBA labor strife is a few months behind football's timeline, legal experts expect the basketball game plans to play out in much the same way. 

For those keeping legal score at home, the first point to make is that there's no correlation between the timing of the NFLPA's decertification and the timing of such a decision by the NBPA. While labor attorneys view decertification -- the disbanding of a union and transformation its members into independent contractors -- as a potential deterrent to a lockout, the NBPA won't have the same time pressure to decertify that the NFLPA did. 

Once it became apparent Friday that no deal would be reached in the NFL talks before the 5 p.m. expiration of the collective bargaining agreement, the NFLPA had to decertify and put into motion its antitrust lawsuit or risk losing its sympathetic judge. U.S. District Court Judge David Doty in Minneapolis still has jurisdiction over any and all disputes stemming from the NFL's 1993 antitrust settlement -- but only when a collective bargaining agreement is in effect. If the NFLPA had waited until the agreement expired and/or the owners imposed a lockout, Doty -- who has a history of pro-player rulings -- wouldn’t have retained jurisdiction. Doty's jurisdiction stemming from the '93 settlement was included in all subsequent CBAs. 

The NBA and NBPA have no such provision, meaning lawsuits between the two sides can be filed in any court where the league or teams do business. In an interesting twist, Doty, 81, might want to clear his calendar for the summer. The NBA's collective bargaining agreement expires June 30, and one option at the NBPA's disposal would be to decertify and file an antitrust lawsuit -- guess where? -- in Doty's district. Legal experts say the case wouldn't necessarily be assigned to Doty, except that similar cases typically are assigned to the same judge to avoid differing opinions on the same legal issues within the same district. 

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The outcome of the NFLPA's decertification move will provide a "road map" and a "blue print" for the NBPA as it weighs its legal options when it comes to preventing a lockout or reacting to one once the NBA owners impose it, said a person familiar with the NBA's labor situation, who spoke on condition of anonymity because he was not authorized to address the matter publicly. 

The question of whether the NBPA follows the NFLPA's lead and decertifies will depend nearly 100 percent on how successful the move is for the NFLPA. If NFL players are successful in getting an injunction preventing the NFL from imposing a lockout against a group of employees that is no longer unionized, this would be a clear green light for the NBA players -- who, coincidentally, are represented by the same attorney, Jeffrey Kessler. If decertification works for the NFL players, you don't need a law degree to see that the NBPA will run the very same play. 

But if the decertification tactic winds up being, as NBA commissioner David Stern called it, "the nuclear option that falls on the party that launches it," then it becomes far less likely that the NBA players would pursue it. 

"If the NFLPA is unsuccessful in blocking a lockout, then the NBA players will lose leverage," said Gabe Feldman, director of the Sports Law Program at Tulane University. 

Despite different issues, the NFL and NBA labor talks are in lock step -- so much so that Billy Hunter, the executive director of the National Basketball Players Association, issued a statement this week announcing his full support of the NFLPA's efforts.

"The success of the NFL is built on the backs and shoulders of NFL players," Hunter said. "NFL players deserve nothing less than an agreement that recognizes the players' contributions and sacrifices, despite the owners' threats and tactics to impose a lockout. The NBPA offers unconditional and uncompromising support for the NFLPA's continued efforts to secure a fair deal."

The ability to watch how the NFL legal fight plays out months before their own labor D-Day is a clear advantage for both the NBA and NBPA -- but not necessarily for one over the other. On one hand, having clues as to how certain legal moves will play out could save the NBA and its players some time and lead to a quicker resolution. But Feldman, who has closely followed the issues in both the NFL's and NBA's labor strife, said the NBA situation is far more ripe for a lengthy work stoppage than the NFL's. 

"Looking back at history at what has caused significant work stoppages in sports, it's typically when one side is seeking a sea change and that side has determined that they're better off not playing than playing under the current system," Feldman said. 

That describes the NBA owners, who are seeking to switch from a soft-cap to a hard-cap system, but not their NFL brethren, who seem to simply want to make more money for the same reasons dogs -- well, because they can. 

But with superteams having been built or under construction in all the major NBA markets, not all owners are down with the notion of killing the sport for a significant time -- perhaps for an entire season. In that regard, Stern will have a much more difficult time unifying his owners than NFL commissioner Roger Goodell will have. 

On one hand, a significant number of small-market and/or low-revenue owners are unfazed by the NBA's skyrocketing TV ratings. As one person familiar with ownership's bargaining strategy put it, the obvious interest in watching NBA games on TV has no bearing on the league's financial health. "They don't correlate," the person said, asserting that the NBA gets no additional money tied to higher ratings.  On the other hand, is Madison Square Garden chairman James Dolan going to stand idly by while the 2011-12 season is canceled after it was revealed Friday that Knicks season-ticket prices will increase an average of 49 percent in the wake of the team's acquisition of Carmelo Anthony

If enough NBA owners are willing to go to the wall with their position that the soft-cap system is broken and must be obliterated at any cost, then there's little hope the early weeks and months after the expiration of the CBA will go any better than what the NFL is experiencing now. Both sides in the basketball fight can simply get their popcorn, see how the NFL players' decertification tactic works, and proceed accordingly. 

All of which means a potentially long summer of watching athletes perform in the courtroom instead of where they belong.
 
 
 
 
The views expressed in this blog are solely those of the author and do not reflect the views of CBS Sports or CBSSports.com