NEW YORK – As it turns out, my question to David Stern as he walked away from a gloomy media scrum Monday night was a prelude to the next phase of the NBA lockout, which has now entered its second month and a new frontier of ugliness.
Stern, who certainly knew full well league attorneys were busy preparing a double-barrel legal assault on the players, thought carefully for a few seconds before answering the question: “Would you say the players are bargaining in good faith, or not?”
We all know what he said, and it was followed up Tuesday with a two-fisted legal maneuver that will set the tone for the next 30-60 days of bargaining – or lack thereof.
What does it mean? First, the easy part: In a charge before the National Labor Relations Board, the league accused the National Basketball Players Association of failing to bargain in good faith – just as Stern said. This was in response to a pending complaint from the players, who leveled the same accusation against the NBA before the NLRB.
You can sum it up like this:
“You’re bargaining in bad faith!”
“No, you are, meathead!” (Archie Bunker sticks out tongue and sprays, “THHZZZZTHZZPPHTH!”
The second action, a federal lawsuit in the Southern District of New York, is more complicated. As we’ve discussed previously, the NBA decided not to sit idly by and wait to see if the NBPA would, in fact, decertify and file an antitrust lawsuit. The league is asking U.S. District Judge Paul Gardephe for a declaratory judgment affirming that the lockout is legal and heading off the players’ potential decertification. The lawsuit stipulates that, even in the event the court finds that the players have the legal right to decertify, all player contracts under the previous collective bargaining agreement would be “void and unenforceable” if the union disbanded.
“These claims were filed in an effort to eliminate the use of impermissible pressure tactics by the union which are impeding the parties’ ability to negotiate a new collective bargaining agreement,” deputy commissioner Adam Silver said. “For the parties to reach agreement on a new CBA, the union must commit to the collective bargaining process fully and in good faith.”
Billy Hunter, the NBPA’s executive director, released a statement Monday calling the NBA’s actions “totally without merit.”
“The litigation tactics of the NBA today are just another example of their bad-faith bargaining and we will seek the complete dismissal of the actions,” Hunter said. “The NBA Players Association has not made any decision to disclaim its role as the collective bargaining representative of the players and has been engaged in good-faith bargaining with the NBA for over two years. We urge the NBA to engage with us at the bargaining table and to use more productively the short time we have left before the 2011-12 season is seriously jeopardized.”
Jeffrey Kessler, the NBPA attorney mentioned frquently in the league's lawsuit, told CBSSports.com the action has "no merit" because the union has made no decision to decertify and has never done so in its history.
"They're just determined to do anything they can to prolong their lockout so they can try to break the players and don't really seem to care about the damage it does to the game," Kessler said. "That’s unfortunate. The players won't be deterred."
A couple of important points: the NLRB charges (one by each side) follow a different legal track than the federal lawsuit. One does not necessarily influence the other. So first off, nothing the NBA did Monday can stop the players from continuing to follow their most expeditious path to an injunction lifting the lockout – that being a complaint issued by the NLRB and a subsequent request to a federal judge to enjoin the lockout.
Even a ruling in the NBA’s lawsuit asserting that the lockout is legal could not prevent a judge from lifting the lockout via the NLRB case, which is governed by federal labor law – not antitrust law. The Norris-LaGuardia Act, which tripped up the NFL players in their antitrust lawsuit, does not apply to the NLRB cases.
In fact, when asked how the NBA's legal action affects the players' unfair labor practices charge pending before the NLRB, Kessler said told CBSSports.com, "We think this is going to be part of the evidence of their bad faith. This will support the complaint that’s already before the NLRB."
But what the NBA has done here is tried to disarm the players of the legal strategy of decertification, through which they would follow the NFLPA’s lead and challenge the lockout and other practices as violations of antitrust law. Unlike the NFL players, who had to decertify by a collectively bargained deadline, the NBA players were at a legal advantage while they pursued the NLRB charge while keeping decertification and an antitrust suit in their back pockets to use when they saw fit. The NBA’s federal lawsuit seeks to remove this option, purportedly as a way to force the players to soften their bargaining strategy and expedite an agreement on a new CBA.
But the very nature of legal timetables could have the opposite effect. Depending on how the NBPA responds, you could be looking at 60-75 days before the matter would even reach the point of a hearing – much less a decision by the judge. The NBA’s regular season is supposed to open three months from Tuesday, and if both sides want to go to trial, well you can pretty much forget about that.
If an eventual ruling is appealed to the 2nd U.S. Circuit Court of Appeals, it’s difficult to imagine a decision from the appeals panel before the calendar says 2012.
Kessler declined to comment on how and when the players would respond to the lawsuit. As for the NBA's charge of bad-faith bargaining by the players, Kessler said, "We know where the bargaining table is. They know where the bargaining table is. We were just there yesterday, and we came out and found this lawsuit. There's been no breakdown of bargaining except by them."
On the bright side, both sides fully understand – and the courts favor – the notion that the only way this labor dispute will be resolved is at the bargaining table between the parties. So the leverage and threat of various outcomes on every one of these legal tracks are far more important than the outcomes themselves.
The league hopes that the federal lawsuit will cause the union to abandon decertification as a possibility, and that once the antitrust option is “out the door,” as one legal expert put it, the two sides will be better positioned to reach agreement at the bargaining table.
It’s too early to tell whether the NBA will be successful on either front. From now until the district court actually rules on the NBA’s complaint, the union is free to decertify and file whatever lawsuits it wishes – as long as it does so in the 2nd Circuit, since the NBA succeeded in setting the venue by suing first. Also, with numerous players still getting paychecks from last season throughout the summer – and with the league owing the players $188 million in escrow and additional payments based on the 2010-11 BRI audit – the players are in a position to endure the missed paychecks that eventually will come with missed games.
League sources insist there was no Magic to the 2nd Circuit as a venue for its legal action; the court is in Manhattan, where both parties and most potential witnesses are based. But the fact remains that the league could’ve filed the case anywhere in the country where an NBA team exists, and it chose the 2nd Circuit.
A preliminary scouting report on Gardephe shows that he is a Republican appointee, having received his ticket to the bench by President George W. Bush in 2008, and thus could be considered a pro-management judge. Either way, the league has set home-court advantage – which is every bit as important in a basketball lawsuit as it is in a basketball game.
Basketball fans who want to see games, meanwhile, can only hope it doesn’t get to that point.