Tag: NBA Collective Bargaining Agreement

Hunter and Fisher of the NBA speak during news conference to reject NBA's latest offer in New York

So now what happens with NBA lockout? Here’s a guide.


Time to be up front — we’re not sure how this is all going to play out.

Part of the goal of the union rejecting the owners’ latest offer and filing a “disclaimer of interest” (to be followed by antitrust lawsuits against the league) was to throw some uncertainty into the process. To shake the owners out of their comfort zone. To change the tone of the debate.

All of which makes it hard to predict the path ahead. But it’s fair to question if it really changes the end game. If it will really change the outcome or just delay it?

All that said, here is the best guess on how things shake out now.

By filing a “disclaimer of interest” it is essentially the union walking away from the players (as Gabriel Feldman pointed out at the Orlando Sentinel). The union is refusing to represent the players in the collective bargaining process (compared to the players filing to decertify the union, as agents had suggested). It speeds the process along, so you can expect a few players to file antitrust lawsuits against the league probably by the end of the week.

The league will counter with efforts to get the disclaimer thrown out — much as the NFL tried to do when its players’ union decertified earlier this year. The NFL called the decertification a “sham,” and you can bet the NBA attorneys will follow in those footsteps. That will be the first skirmish between the lawyers.

The other early legal fight likely will be over venue of the lawsuits — the league filed its pre-emptive lawsuit in New York in part to do some “forum shopping” and get a legal court they liked. The players will almost certainly file in different districts they think give them the advantage. Then everybody can get together and pay lawyers to argue about where they will argue.

After that, well, it’s likely legal skirmishes over Summary Judgment by the union (they are expected to request it) or an injunction, plus other issues around discovery and other pre-trial things. In case you’re curious, we’re probably in January by now — and the season will officially be lost.

What the union really wants is a quick strike, which is what new union attorney David Boies said, according to Larry Coon over at ESPN.

“Even if you could get an injunction,” Boies said, “… it would be, obviously, a drawn-out process. And I think what the players are focusing on right now is, what is the fastest way to get this resolved?”

Boies also indicted that the players could continue to negotiate without a union. “The class-action settlement discussion,” Boies added, “just like [what] took place in the NFL, [would happen] without any association’s direct involvement. It’s the class that would be making any settlement if there was one.”

It all means NBA commissioner David Stern was right — this was a negotiating tactic by the union. Unless you think the union is willing to miss a couple of seasons to see this all they way through to judgement. (Hint, they are not.) They want quick-strike leverage.

Which means in the end this is going to be negotiated between the sides, with the lawsuits and decertification as a backdrop to a deal hammered out the old fashion way. Billy Hunter and Stern — and the attorneys on both sides — are going to have to sit down in a room and figure this all out still. It will still be a negotiated settlement, just in a legally different way.

Which means, if the two sides start talking again next month, we could see a deal in time to save a 50-game-or-so season (as happened in 1999).

If you’re an optimist, the promise of maybe 50 games is the best we can do. If you’re feeling pessimistic about an NBA season, well, welcome to the club.

Fisher, Hunter send letter to players explaining process

Los Angeles Lakers Fisher speaks at a news conference alongside Executive Director of the NBA player's association Hunter in New York

Usually when you are talking NBA and “disclaimer of interest” we’re talking about Carmelo Anthony and defense.

But now we are talking about the legal process and how by the NBA players union filing a disclaimer of interest they are abandoning their place as the negotiating body for the players in getting a new Collective Bargaining Agreement. It means anti-trust lawsuits and a whole lot more. It’s complex.

NBPA president Derek Fisher and Director Billy Hunter sent out a letter to NBA players, which was obtained by ESPN. Here are a few highlights.

As a result, we will now function as a trade association to assist and support NBA players, but we will
no longer engage in collective bargaining with the NBA owners…

With no labor union in place, it is our sincere hope that the NBA will immediately end its now illegal boycott and finally open the 2011-12 season. Individual teams are free to negotiate with free agents for your services. If the owners choose to continue their present course of action, it is our view that they subject themselves to significant antitrust liability

If you think the NBA is going to open up free agency, then I am a Nigerian prince with a great money-making plan for you. Just email me.

Also as part of this, the union had to withdraw it’s unfair labor practices complaint against the owners with the National Labor Relations Board. Also, the union can no longer regulate agents.

The process is that the union will file its disclaimer and the league will challenge it as a sham and then it is on in court. The two sides will fight a few legal skirmishes and talk big for a month, then probably start to negotiate again to try and save the season.

But right now it feels like there is little chance of saving that.

In fighting for final dollars, league has cost itself much more

NBA basketball spaulding

Today I and a lot of NBA fans feel like Charlton Heston at the end of Planet of the Apes.

You Maniacs! You blew it up! Ah, damn you! God damn you all to hell!

The ultimate stupidity of what has happened with the NBA lockout is that in the fight over the system of movement and the last dollars in this new Collective Bargaining Agreement, the two sides will have cost themselves hundreds of millions, if not billions, of dollars.

They are fighting over how to divide up the pie, but that pie is about to get a lot smaller. Fans are pissed.

There is almost zero chance of games on Christmas Day, which is when football starts to wind down and the average sports fan starts to turn his or her attention to the NBA.

There will be no games that day, and the backlash will cut the league and its revenue for years. Fans will feel the recession and see no NBA games and rightfully be disgusted.

Fighting over percentages of revenue while at the same time reducing the amount of revenue is maybe the ultimate foolishness on the players’ and owners’ part.

While nobody is blameless, I side with Ray Ratto of CSNBayArea.com that the owners have been the worst offenders.

They created this system, and everyone’s franchise values rose dramatically since Stern first masterminded the star-players-in-star-cities Strategy. This the owners deciding that profits can be increased and maybe even maximized with a new and more punitive system whose only real feature is that the owners can now be indemnified against their witless exuberance, poor judgment and flat-out mistakes.

And if you think the owners are taking all the financial risk, then you should see who paid for most of their stadiums. You, the taxpayer, did.

The owners’ biggest mistake was not giving the players a way out of the negotiations to save face (it didn’t have to be much). The owners had the big win, but to win by 30 was not enough, they kept on the full-court press and wanted to win by 40. So they gave ultimatums and drove this kind of bargain that was almost certain to make the players fight back with the biggest club they had.

The players are not blameless. They should have decertified long ago, not pushed the button and blown it all up Monday as time to save the season has run out. You can make an argument that they should have taken commissioner David Stern’s latest offer or at least put the entire thing to a vote of the entire union membership. If they accepted the offer, they still would be making incredible money to play a game.

But where we are now is that the sides are fighting over a shrinking pie. If they had solved this like adults, everyone would have gotten their fill. Now the game suffers and everyone goes hungry.

I feel like Heston right now.

NBA union did not poll players before taking big step Monday

Derek Fisher

There were 30 NBA team player representatives — and about another 20 players total — who were in the room in New York on Monday and they voted unanimously to file a Notice of Disclaimer, essentially decertifying the union.

But is that what the full union would have voted to do?

Probably not (many think if the owners’ latest offer had been put to vote of players it would have passed), but we’ll never know because the union did not poll its members.

In fact, union officials were hostile to the idea, reports Henry Abbott at TrueHoop, saying that to do so was to let David Stern and the owners win.

The gist of the response was that you cannot give your adversary direct access to the membership. “That’s not how any union in America, that I’m aware of, operates,” said (union legal counsel Jeffrey) Kessler. If the NBA is just going to send offers straight to the players, why even have a union? The idea is that the union is savvier, and knows a good deal when it sees one. And only when the union is sure that the deal is in players’ best interests will they present it to the workers.

Rockets guard Kevin Martin, by text on Monday morning, said he didn’t care to be represented that way: “I think it’s fair for every player to have a vote, because we’re all grown men and its time for the players to control their career decisions, and not one player per team. If it comes down to a final decision, you got to be fair.”

It’s one thing for the union to reject the offer and look for a way to continue to negotiate. But to start the decertification process without polling the constituency? That’s a big step.

But that’s also where we are.

Only hope for NBA season is rational negotiations. Which is bad.


The courts are not going to solve the NBA lockout.

That’s where the process is headed after the union started taking steps to abandon its right to negotiate for the players. Anti-trust lawsuits will follow. Along with plenty of heated rhetoric from both sides.

Yet, only one thing can save part of an NBA season at this point — rational people resuming negotiations, something we have yet to see much of from either side. Still, that is the only hope for fans who want a 2011-12 NBA season.

It could happen; there are plenty of smart people who have predicted these talks would come down to the first week in January and the drop-dead date for a season to take place — just like happened in 1999. And some kind of season would be saved, just like then. It’s just hard to be even that optimistic right now.

League commissioner David Stern is right that the players’ plan to decertify the union, followed by anti-trust lawsuits against the league, is more negotiating tactic than long-term play. It certainly is all about leverage in negotiations, unless you think the players are willing to miss not only this season but the next one (and maybe the one after that) to take its anti-trust efforts all the way through the courts to a ruling (they are not). That’s more than $4 billion in lost player salary not to mention the legal fees. No way the players will push it that far.

This is a grab by the players at temporary leverage in the negotiations. They have felt powerless, backed into a corner with offers they didn’t like and ultimatums from Stern, so they finally reached for the one big weapon they had.

What happens now? Nobody knows. Not really. The goal of the union’s moves today was to throw uncertainty into the system, and it has done that. We know there will be anti-trust lawsuits, we know the sides will sling verbal arrows at each other, but after that this is unpredictable.

Except that again, at some point, the owners and players will have to talk and negotiate a deal.

This decertification process is basically what the NFL union did — however, the narrow rulings in that case don’t give us much of a picture for how the efforts will fare in the NBA. But in the end, the NFL is playing right now because its owners and players hammered out a deal at the negotiating table.

It’s the same for the NBA— this will be a negotiated settlement when all is said and done. The difference is NFL owners and players seemed more willing to compromise to make a deal (particularly the owners who do turn a profit in the NFL).

Right now no talks are scheduled and you can bet it will be weeks (at least) before the sides talk again. If when those talks start the owners stick with Stern’s promise to use a “reset” offer that gives the players less money and to put in a hard salary cap, then those talks were going nowhere.

But if the sides can negotiate from where they left off in their latest talks, they are fully capable of making a deal. They are not that far apart. There are philosophical and systematic issues, but they are solvable.

We just need some rationality. At some point. From somewhere. Anywhere.