NEW YORK -- As union officials huddled Monday to consider their options in the face of an ultimatum to accept the owners' latest proposal, one such option could be a shift in legal strategy with plenty of risk and reward attached to it.
Rather than waiting for the players to get the necessary signatures to dissolve the union by seeking a time-consuming decertification vote, Billy Hunter could advise commissioner David Stern that, if no further negotiations occur before the Wednesday deadline to accept the owners' deal, he will have no choice but to step aside as executive director of the union.
The legal term for this would be a disclaimer of interest, which would only require a letter from Hunter to Stern advising him that the National Basketball Players Association no longer exists as the bargaining unit for the players.
The advantage of this for the players would be that, once the letter is sent, their attorneys would not have to wait 45-60 days for the National Labor Relations Board to authorize an election to formally dissolve the union. With a disclaimer of interest, the players could almost immediately commence an anti-trust lawsuit against the NBA, said Gabe Feldman, director of the Sports Law Center at Tulane University.
"The owners have threatened to, in some ways, end the negotiations if (the players) don’t agree by Wednesday, because 47 percent is a non-starter -- we all know that," Feldman said. "So the owners have given the players an ultimatum with an artificial deadline, and it may force the players to respond with their own ultimatum. But both are destructive of the negotiation process.
"Clearly, what David Stern has said is designed to push the players to make a concession with the threat of essentially ending the negotiations," Feldman said. "And that’s what the players would be doing by threatening to dissolve the union."
A parallel threat to dissolve the union through a decertification vote already is under way, with players and agents dissatisfied with the union's representation consulting with anti-trust attorneys to weigh the costs and benefits of decertifying. But while a decertification initiated by union members has a better chance of holding up in court as not being a "sham," the disclaimer of interest route is more expeditious and could apply the leverage players are seeking without endangering the entire 2011-12 season.
A key difference, however, is that with a player-initiated decertification, union leadership would remain in power until the election, and thus, negotiations could continue. If Hunter steps aside and dissolves the union voluntarily through a disclaimer of interest, the union would have to reform before negotiations could continue.
"You can't flip a light switch on and off," Feldman said. "It’s a sobering process. Writing a letter one day and tearing up the letter the next day flies in the face of that."
That distinction makes a disclaimer a dangerous legal weapon for the union to implement at this point. The NBA already has sued the NBPA in federal court, seeking declaratory judgment that a disclaimer or decertification on the players' part would be illegal. If the union disclaims, in some ways it would strengthen the league's legal argument that it was planning to dissolve all along. But the union would have a valid counter-argument.
"Billy Hunter could make the argument that dissolving the union was never a strategy until Stern threatened to end the negotiations unless we agreed to every last one of their demands," Feldman said.
As evidence that he never intended to dissolve the union, Hunter could cite the players and agents who have become so enraged with his refusal to do so that they've begun the process of doing it themselves. In fact, for legal purposes, both a disclaimer and decertification could proceed on a parallel basis as a last-resort response to the league's ultimatum, Feldman said.
The biggest legal benefit to dissolving the union through a disclaimer would be that, once the union was transformed into a trade association, the players could almost immediately file an anti-trust lawsuit against the league -- which in theory would open the owners to not only the financial losses of a canceled season, but also anti-trust damages. In all likelihood, the players would file their action in the 9th Circuit in California, where more employee-favorable law exists. Since the league already has pre-emptively sued in the employer-friendly 2nd Circuit in New York, a messy and potentially lengthy jurisdictional battle would then unfold.
And while the disclaimer would be a more expeditious route to antitrust action, it would also be less likely to succeed than a decertification initiated by the players. Courts would be more likely to view a disclaimer as a bargaining tactic, rather than a decision with the true intent to dissolve.
NBPA outside counsel Jeffrey Kessler, who oversaw the NFLPA's disclaimer of interest, "wants to protect not only players in this negotiation but players' ability to use this weapon in the future," Feldman said. "He has to make it appear that this dissolution is a not a sham."
If either of these legal strategies becomes official, the hope of a swift end to the impasse at the bargaining table would be seriously imperiled. So Hunter's best move before Wednesday may be to directly ask Stern for another bargaining session before Wednesday in an effort to close the gap on the remaining system issues so he can bring the deal to the players for a ratification vote. If Stern refused, Hunter could advise him that he will have no choice to send him a disclaimer of interest letter -- and indeed, that even if he doesn't step aside, the players are planning to dissolve the union on their own through decertification.
The question of how Stern and the owners would respond to the players' own ultimatum is a risky and unknown game of roulette that union leaders will have to decide if they want to play.
"It could go either way," Feldman said. "It could cause enough owners to be skittish and want to avoid the risk of anti-trust litigation -- because if they lose there, it’s a huge loss. ... The other side is that it could cause Stern and the owners to say, 'We’re not going to let you manipulate labor law by threatening us with an anti-trust suit and we're going to take a stand.
"The question becomes: Do all of these threats bring the sides closer together," Feldman said, "or push them further apart?"