Tag:David Stern
Posted on: November 4, 2011 11:23 am
Edited on: November 4, 2011 1:51 pm
 

Decertification: The Nuclear Option

By Matt Moore 

With reports surfacing Thursday night of a possible coup being attempted on the part of outraged players with regards to concessions granted by NBPA leadership in negotiations with the NBA on a new CBA, the talk is now shifting to the courts. Players are threatening an "involuntary decertification," in which 30 percent of union membership signs a petition to bring a vote to the union with regards to decertification. From there a simple majority would be needed to decertify the union. That opens the way for the players to bring individual antitrust suits, which could potentially damage the owners and even end the lockout. 

But what does any of this mean?

To find out, we spoke with David Scupp of Constantine Cannon LLP, an antitrust firm based on the East Coast. Let's try and get to the bottom of what any of this means.

What is decertification?

In an effort to protect employees, the National Labor Relations Act put into law a compulsion for employers to collectively bargain with unions. Under the terms of collective bargaining, Scupp says that in time businesses were protected from antitrust laws as long as both sides were involved in collective bargaining, which must be done through a union recognized by the NLRB. 

"A rule emerged in the 1980's which says antitrust laws are out of bounds except when there is no longer a CBA between union and management," Scupp says. "The only way around that is to decertify the union. That's the result that came out in the 1990's."

So as long as the NBPA exists, the owners are protected from antitrust litigation. Thus, decertification. 

Decertification can be committed to in separate ways. Disclaim of interest is a faster process that involves union leadership essentially scuttling their own ship. However, it is less likely to hold up in court. What the 50 players (and their agents) are seeking is an involuntary decertification, which requires the 30 percent petition, the majority vote, and recognition from the National Labor Relations Board. In doing so, the action would dissolve the union, ending protections for the owners against antitrust suits and paving the way for players to pursue suit against the owners. It is believed that this option represents the only true way to gain leverage against the owners. 

In short, Scupp says, "the law gives the right for the players to be and not be a union." 

What are the legal challenges to decertification?

Before we get into antitrust considerations,  it's important to consider that the league has already challenged any move from the NBPA to decertify or disclaim interest. The league filed suit against the NBPA attempting to protect itself from any suit resulting from decertification on the grounds that the NBPA has not bargained in good faith and that any decertification on the part of the players is not legitimate. This is where the term "sham decertification" comes from. This same consideration was brought up but not settled, Scupp says, during the NFL lockout and subsequent court battle with the NFLPA. 

"The argument says that the union is decertifying, but it's not a good faith decertification," Scupp says. "It shouldn't be a lightswitch that can be turned on and off. That argument needs to be tested. It wasn't one of the issues that was resolved in the NFL case. The league is arguing that if the players' union decertifies, it would be a sham and the court should not entertain a suit."

The biggest problem with this particular suit, Scupp says, is that it's attempting to block something that hasn't occurred yet. Scupp says that the court is essentially tasked with reading intent towards the NBA's decision to decertify, which it has yet to do. How do you evaluate the intent of a party regarding an action they have not taken yet? That's the challenge to the NBA's suit, as outlined by the NBPA in their reply memorandum

Should the union elect to decertify involuntarily, as is being proposed by the players, the sham argument becomes more difficult to prove. The sham argument proposes that the union's decertification is merely being used as a tactic towards negotiation. Having the players (at least on surface) detonate their own union without consultation or approval from NBPA leadership would be pretty difficult to challenge as a sham.  

So the union decertifies, what happens then? 

Why would you give up the protections afforded you by the National Labor Relations Act to collectively bargain by decertifying your own union, essentially putting you out on your own against the power of the NBA?

Because it allows you to sue for antitrust. And it is here we enter the wild, and the one last, desperate hope of the players gaining leverage or an outright victory over the union.

Players would file suit against individual owners claiming that the lockout itself is an antitrust violation, Scupp says. "It's a group boycott, outside the context of collective bargaining, an anti-competitive element, would be their argument," according to Scupp. 

 The league acts in collusion regarding all matters of the CBA, according to the plan of attack for the players. 

"The salary cap, draft rules, etc., if those practices are part of the CBA," Scupp says, "if you're going to restrict free agent movement, and all your teams are going to act together, that's a violation of antitrust, according to the argument." 

We're used to hearing about open markets with regards to antitrust. The NBA is the only real "market" that exists in the United States for professional basketball since the ABA-NBA merger. But Scupp says that the suit would be focused more on the elements and practices of the NBA that may constitute an antitrust violation.

"There are certain violations which are what are called per se violations," Scupp says," that are so anti-competitive, you don't have to prove what the market is. If it is not a per se violation, they go with a rule-of-reason analysis. The players would have to prove what the global market is. That's a very good question, what the market is."

Does the professional basketball market include minor leagues like the barely-in-existence current ABA? Does it include Europe? Does it include exhibition games to the degree it can be argued players can make a living off that option? 

"Is it a worldwide market for basketball and if so does the NBA have market power?" Scupp asks. "Is the NBA a market inside itself? I don't know, but it's a very good question. If the lawsuit ever progressed to that point, would be important."

Scupp says that other questions that would come into play are what percentage of the market does the NBA control, and are there barriers to that market for the players? It gets trickier the further this process goes. 

What happens if the players win an antitrust suit?

The owners go down like Michael Spinks. Scupp says that a possible result would be the court enjoinging the lockout, effectively ending it. The players wouldn't be bound by it, and would start receving checks again. This could actually be enacted while the suit is taking place, putting even more pressure on the owners. For that to occur, the NBPA would need to prove irreparable harm stemming from the lockout, which involves combating a likely claim from the NBA that Europe and other employment options undermine the idea of irreparable harm.

Should the court enact an injunction, the league would no doubt appeal. The question of whether the injunction would hold during such an appeal is up for debate. The original judge in the NFL case in Minnesota held that the injunction would hold during an appeal and the lockout would be withdrawn, but the Minnesota district court ruled to suspend the injunction during the appeals process, opening up the lockout once more. While Scupp says a ruling on such an injunction would come quickly, that would still take a month or more, time neither side has if they wanted to save a season.

But the monetary result is the real hammer for filing the suit. 

"At the end of the day, if the players could win an antitrust suit, you get treble (triple) damages, the payout at the end would be very significant." 

Furthermore, if it looked like the players were going to win such a suit, the league would likely cave and grant the players huge concessions or keep elements the same in the next CBA. It would represent a dramatic win over the owners. 

So the decertify-and-antitrust-suit option has to be the best choice for the players, right?

Not at all, according to multiple experts, including Scupp.  

Provided they manage to get the required votes for a decertification, and that decertification holds up in court, and the players file suit, and the court hears that suit, and the players win, what's the timeline on that? Years, Scupp says. Years.

"The question is whether the players can sustain through that period," Scupp says. "I'm sure a lot of players can, but I'm also sure a lot of players can't." 

Consider who is linked to the 50-player initiative. At least seven All-Stars and probably more were reportedly on the calls. Those players have the means to survive such a monetary drought. Dwyane Wade isn't going under in three years. But the majority of the NBPA is made up of role players and end-of-bench guys, along with rookies and young players who don't have those means.

Additionally, losing the league for multiple years would likely simply mean the end of the NBA. It's unfathomable to think about, but that's the reality. Even once a case is decided and damages set by a court, the appeals process would take further years. Scupps says that the only way this is a feasible option for the players should they pursue this route, considering the money lost in one or more lost seasons, is if an injunction is placed on the lockout, and that is far from certain. This isn't a quick process, it's a painfully slow one, and one that would bleed the league to a flatline on the national spotlight.

Which is why Scupp says decertification and subsequent lawsuits only work as a negotiating tactic, not as a viable strategy towards conflict resolution.  

"An antitrust suit would take years to resovle and neither side takes that."

If the suit is merely being filed as a negotiating tactic, wouldn't the court want to avoid participating in such a process? Scupp says it's likely that the court would urge both sides to settle the dispute at the negotiating table, rather than using the courts as a means to an end.

So what's the end game here? What happens next?

The players are playing a dangerous game of chicken right now. Basically, they have no weapons to aim at the league in this negotiation and feel they're backed into a corner with no acceptable solution in sight. So they've pulled out the antitrust hand grenade and are daring to pull the pin. If the players go down, they're taking the owners with them. 

The problem is that the likely result of this is a lost season, something that the owners have been hinting at and Billy Hunter has explicitly said some owners are pursuing anyway. It's threatening the NBA with something it's already made clear it's ok with. How do you get someone to back off by punishing them with something they're fine with?

The only chance the NBPA has here of victory or even a marginal survival is that the prospect of leaving the process up to the courts takes it out of the NBA's hands. The owners no longer control the field, despite the many obstacles in the way of such suits. That kind of wild card might be enough to shake the moderates to align with those owners who do want a deal and a season, wrestling control from the hard-line owners who so far have carried the day.

Decertification and antitrust litigation is the nuclear option. Once it starts, stopping it becomes harder and harder. The case won't even be brought to court until after the entire 2011-2012 NBA season would be cancelled, and the process could and would probably take up to another full year to reach an initial resolution, prior to the appeal process. The players would be ending professional basketball in this country to protect themselves from the owners' efforts which have been draconian and brutal.

Saturday will be day 128 of the NBA lockout. If it is not the last, the future of the NBA looks dark for all involved.


Additional resources: 
Huffington Post lockout primer.  
Sports Illustrated FAQ.
NBA vs. NBPA legal documents, via Brian Cuban on Twitter. 
Posted on: November 4, 2011 10:02 am
 

Report: It's going to be a full-house Saturday

By Matt Moore 

With the player's union bitterly divided over how much to surrender in order to get a season, rumor and allegations flying rampant, Saturday's meeting beween the NBPA and NBA was going to be drama-filled to begin with (as much as a bunch of guys in suits sitting around a hotel boardroom can be). But the Boston Herald brings news it's going to go to the next step. 
According to sources, the session will be much larger than the recent talks in terms of participation.Players beyond the executive committee are expected to attend, and there could be greater participation on the owners’ side, as well, as they try to end the lockout and reach a new collective bargaining agreement.

This may be an effort to make things more transparent in response to inside questions about the directions the two leaderships have been taking. It could also be a show of solidarity from each side amid reports of fractures.One source said he has no idea what to expect from the expanded session.

“It could be that everyone gets together and cooler heads rule the day,” he said. “Or it could be one of those battle royales from wrestling. We could see players and owners being thrown over the top rope and out the hotel windows.”
via BostonHerald.com - Blogs: Celtics Insider» Blog Archive » More players, owners to get involved in NBA talks Saturday.

Based on how the last week has gone, I would bring a Lucha Libre mask and some tights, if I were you.

This is actually spectacularly bad news for anyone paying attention. Progress has only been made in talks in small groups. Getting the larger contingents involved when thing weren't so volatile was bad enough, and lead to multiple breakdowns in talks. But throwing in the drama of the past week along with owners who no doubt smell blood means that this meeting could be very Hobbes-ian: nasty, brutish, and short. It could turn into a Quentin Tarantino flick: lots of blood and everyone dies in the end.

There's a perfect storm of elements coming to play that could spell the end of the NBA. Not for a season. For good.  
Posted on: November 3, 2011 9:49 pm
Edited on: November 4, 2011 2:58 am
 

NBPA members meet with decertification attorneys

By Matt Moore nba-lockout

Update 2:49 a.m.: Two separate lists of players involved in the calls came out late Thursday night. Yahoo! Sports reported Blake Griffin, DeAndre Jordan, Jason Kidd, Al Horford, and Tyson Chandler, while ESPN reported Dwyane Wade, Paul Pierce, along with Ray Allen and Dwight Howard. That makes leaders from six different teams, including six current or future All-Stars. Kobe Bryant and Kevin Garnett have not been formally connected to the talks, but considering Pierce's involvement, it could be assumed they were in support of the movement. That's a lot of players with a lot of pull.

We're in dark waters, here, kids. 

Yahoo Sports and the New York Times are reporting that 50 members of the National Basketball Players Association held two separate conference calls this week with an antitrust attorneys to discuss decertification and subsequent lawsuits... without the knowledge of NBPA executive board members. 

So, that's fun.

Yahoo reports that meetings were spurred by players, including multiple All-Stars, who refuse to go below the 52 percent of Basketball-Related Income already offered in negotiations with the NBA. These players reportedly feel too many concessions have been made. This directly contrasts multiple reports and statements from other players indicating that a 51 or 50 percent compromise would be considered reasonable in pursuit of a deal. This new set of reports indicates that not only is the union divided, it is divided bitterly.

A move to decertify is thought to equate to the end of Billy Hunter's tenure as executive director of the NBPA. It would also kickstart a scorched earth policy by taking the sport to the courts, one that could take literally years to resolve. The union would require 30 percent of its membership to sign a petition to raise a vote for decertification, then a simple majority of its membership to formally approve it. In other words, the 50-player contingent would need to bring on over roughly 150 additional players in order to reach that threshold. 

The reports come from multiple sources within 48 hours of a scheduled meeting on Saturday between the NBA and NBPA, which raises suspicions of the intent of the purposeful leak. The question is why and to what end. 

After talks broke down a week ago, it was predicted that things would get uglier.

They certanly have.
Posted on: November 3, 2011 11:51 am
 

Report: NBA, NBPA to resume negotiations Saturday

By Matt Moore

From the Boston Herald, they're headed back to the table once more: 

 
After breaking off talks last Friday, the NBA and players’ union are expected to resume face to face negotiations this Saturday in New York, according to involved sources.

We’re still awaiting confirmation from the league office, but sources say the plan is pretty much set.

The sides have been working within their own groups for the most part in these last days, setting their positions and deciding whether they will move from their most recent offers — and, if so, by how much.
via BostonHerald.com - Blogs: Celtics Insider» Blog Archive » League, players to resume talks Saturday.

It will have been one week and a day since labor talks last broke down on Friday. There was speculation the two sides would meeet this week but apparently they couldn't stand the sight of each other after the long talks that went into the wee hours of the morning last week yielded no deal.

The two sides are said to be "95 percent" done according to the New York Times but are bitterly divided over the remaining items on the agenda, the largest of which is the split of Basketball-Related Income. The owners have refused to accept less than 50 percent after getting only 43 percent in the previous agreement, while union officials have held firm at 52 percent (after saying they were holding firm at 53 percent... you see where this is going). The union has been rocked by allegations and indications from its members that there is a growing interest in finding a deal at 50 percent, while some members remain decisively behind holding the line at 52. 

It's difficult to see how these talks will generate anything positive, but talking is better than not talking, in most cases.

Saturday will be day 128 of the NBA Lockout.  
Posted on: November 2, 2011 12:29 pm
 

Cuban's brother comments about 51 percent offer

By Matt Moore

Billy Hunter says the union isn't going an inch below 52 percent of BRI for the players. The league is saying, and leaking heavily, that it won't go above 50 percent for the players. So that pretty much seems to be the end of the conversation. 

But it's not. You just have to look around at people around the issues.

Glan Davis posted on Twitter Wednesday:

 


So that's fun. Not sure if that's "Take the 51 percent that we're willing to go to, NBA!" or "Take the 51 percent they're offering, Billy Hunter and Derek Fisher!" but it's certainly a player going below the 52 percent mark, which was set after LeBron James and other swore not to go below 53 percent.

So why on earth would Glen Davis think the owners would go for 51 percent? Oh, how about because Mark Cuban's brother tweeted this in response on Wednesday morning:

 


Now, granted, this is coming from the brother of Mark Cuban, who has switched sides in the past few weeks to become one of those pushing for a deal and notably linked to reports about helping bring the BRI to within range of a deal. It's a long way from any sort of movement. But if nothing else, the two public comments indicate that there's more movement here than either side is letting on, if they'd just get their egos out of the way.  
Posted on: November 2, 2011 10:38 am
 

The lockout has become brain damaged

By Matt Moore

There have been a lot of ridiculous stories during this lockout. JaVale McGee denying a quote given to reporters with a half dozen recording devices in his face is a personal favorite. There's Ken Berger's 50/50 cake. We've had "enormous consequences," 3 a.m. press conferences, and of course, "How u?." 

Tuesday night saw some pretty freaking ridiculous stories. 

It started with a column from FoxSports.com's Jason Whitlock,  who has written literally hundreds dozens four posts on the NBA lockout, asserting that Derek Fisher wanted to go 50/50 and Billy Hunter wouldn't let him. The piece pretty much painted Fisher as a sellout over his head. Point!

Then later in the day Tuesday, Yahoo! Sports' Adrian Wojnarowski wrote a column painting Hunter as the destabilizing force. Woj's assertion is that the union has lost confidence in Hunter's leadership, and would like a vote on a 50/50 BRI-split deal brought to the union for a vote. Counter-point!

If you're looking to read into this, you've got sources inside the union telling two different columnists two different things. Can you feel the stand-united-ness? 

Now, the appropriate action would be to not respond to reports, to continue on with leading the players. Make some phone calls to players who are particularly vocal. Sending a letter isn't going to help because then that just gets out to the media and it looks like you're squabbling and desperate for damage control. 

So naturally, the union sent letters. Lots of letters. 

Billy Hunter tossed aside discussions of a rift with Fisher and tried to get the horse under control, so to speak, by taking aim at the league. When in doubt, slam the side that's costing your constituents money. But wait, they're not through! Derek Fisher released his own statement threatening legal action against FoxSports.com concerning the allegations. The theme is clear. "Everything is fine! We are good! No problems, here! It's the NBA's fault and we won't back down!"

Problem is, that's not how it comes off. It comes off as a fractured leadership trying to undergo damage control. Multiple media outlets after the breakdown in talks last week said that this would be when things got "uglier." 

This is about as ugly as it can get. 

This is why the NBA is so forceful with keeping owners away from the media, why they are levying fines against their own owners for innocuous, common sense tweets that anyone can figure out. Micky Arison was fined half-a-million dollars for saying that he wasn't behind a move to prevent the season and restructure the deal some more. Anyone paying half-attention could have figured that out. But the league knows the more that is said, the more things get out of control, which means the more they have to respond to in the press, which means less time staying focused on getting what they want. 

There's been a lot of talk, some of it from me, about how flawed and nearly insane the league's stance has been. But if their position is out of whack, their execution has been flawless. The union's requests are reasonable, undersatandable: a deal where they don't lose their soul, their hat, and everything with it. Bu their execution of their defense has been sorely lacking. This situation is a clear example of that. 

In totally unrelated news, no talks are scheduled between the NBA and NBPA. 

Today is day 125 of the NBA lockout. 
 
Posted on: November 2, 2011 12:10 am
Edited on: November 2, 2011 12:16 am
 

Derek Fisher lawyers up, demands retraction

Posted by Ben Gollivernba-lockout

The only thing missing here is a reference to Scott Templeton.

National Basketball Players Association president Derek Fisher issued a statement on Tuesday night taking direct aim at multiple articles posted on FoxSports.com, formally demanding a retraction and acusing the site of defaming him.

Here's the full statement sent out by Jamie Wior, Fisher's publicist, and obtained by Ken Berger of CBSSports.com. 
"The statements made in recent articles on the Fox Sports website are inexcusable.  Among the many baseless accusations, to allege that I am working with the league for my personal gain is unequivocally false.  The implication that I am doing anything but working in the best interests of the players is disgusting, defamatory and a flat out lie.  I have issued a letter through my attorneys demanding a retraction for the libelous and defamatory stories the site and reporter have continued to publish.

Regardless of the media reports, the Players Association, our staff, Executive Director and Executive Committee are unified and working side by side to serve our players.

There should be no more distractions.  We must continue to negotiate a fair deal for our players."      
The articles that Fisher objects to call out both Fisher and Wior by name. They accuse Fisher of being co-opted by Stern during labor negotiations, assert that there is a rift between Fisher and NBPA executive director Billy Hunter, and suggest that the NBPA confronted Fisher about his stances on the all-important revenue split issue. They also call into question the aptitude of both Fisher and Wior. 

Earlier Tuesday, NBA commissioner David Stern issued a denial that he secretly met with Fisher. Also on Tuesday, Hunter sent a letter to the NBPA saying that he had no beef with Fisher. On Monday, Fisher sent a letter to the NBPA denying a rift with Hunter.
Posted on: November 1, 2011 11:16 pm
 

David Stern denies secretly meeting Derek Fisher

Posted by Ben Gollivernba-lockout

In case you were worried that representatives of the NBA and the National Basketball Players Association were actually meeting face-to-face, NBA commissioner David Stern is here to set the record straight. There were no meetings!

The New York Times reports that Stern flatly denied meeting with NBPA president Derek Fisher, although he was speaking about a reported secret meeting where a "side deal" was allegedly conducted without the consent of NBPA executive director Billy Hunter.
One report said that Fisher secretly met with Stern and the deputy commissioner Adam Silver in an attempt to make a deal.

“That would be false,” Stern said.

Fisher also denied the report that suggested he met with Stern in a letter sent to the NBPA on Monday. "Usually I wouldn't even dignify absurd media reports with a comment," Fisher's letter read. "But before these reports go any further, let me say on the record to each of you, my loyalty has and always will be with the players... There have been no side agreements, no side negotiations or anything close."

Meanwhile, Hunter also denied that there was a rift between himself and Fisher in a letter sent to the NBPA on Tuesday, but also tried to redirect the discussion to the current state of negotiations. "We will not be intimidated by public threats, ultimatums and manufactured drop dead dates," Hunter's letter read. "We will stand firm in our resolve to negotiate a fair deal for our current membership and those who will join our ranks in the future," Hunter said.

Well, we now have denials from all involved parties but are still left without actual discourse on the issues. Labor negotiations broke off last Friday and there are currently no new negotiations scheduled.

At this point, it would actually be more productive if Stern, Silver, Fisher and Hunter all set of a series of secret meetings with each other and then continually leaked the fact that they were meeting to the media. At least they would be meeting!

If there's any upshot here it's that Stern told the New York Times multiple times that he's still trying. 
“We’re trying very hard to get a deal done with the players, or we were, and we don’t need any external distractions to that focus.”

I believe that a majority of teams are in favor of making the deal that we were offering to the players,” Stern said. “And I’m trying very hard to keep that deal on the table.”
Just to boil all of this nonsense and hot air down to its core: nothing is being accomplished but they still claim they haven't given up. Fantastic news. Don't keel over in optimistic over-exertion.
 
 
 
 
The views expressed in this blog are solely those of the author and do not reflect the views of CBS Sports or CBSSports.com