Tag: NBA Collective Bargaining Agreement


Players consolidate lawsuits, but court ordered talks best hope


If you were holding out hope that David Stern and Billy Hunter were going to be having pleasant phone conversations over the holiday weekend, and that the NBA on Christmas still could happen, well, we’re sorry.

The next NBA owners and players negotiations will likely be because a judge ordered them, a source close to the labor dispute told ProBasketballTalk.

Those talks — and maybe a settlement out of them — would happen in the coming weeks, in time to have a partial NBA season. And when those talks start there will be significant pressure on both sides to reach an agreement, more than there has been at any point up to now.

On Monday, the players voluntarily withdrew their case in Northern California and will amend their case in Minnesota. It is now a consolidated case of the two, but still a class action on behalf of the players, something attorneys for the players said would speed the process along. Carmelo Anthony remains the first name on the lawsuit, other players listed include Chauncey Billups, Kevin Durant, Steve Nash, Rajon Rondo and more.

The league responded to that with some legal jabs, because that’s what they do.

“We assume that (lead players attorney David) Boies was not happy with either the reassignment of the case from Oakland to San Francisco or the fact that the new judge scheduled the first conference for March 2012,” said Rick Buchanan, NBA Executive Vice President and General Counsel. “This is consistent with Mr. Boies’ inappropriate shopping for a forum that he can only hope will be friendlier to his baseless legal claims.”

The league was forum shopping with its preemptive lawsuit back in August, but whatever. The league has until Dec. 5 to answer the claim, they likely will do by calling the union’s “disclaimer of interest” a sham. Bottom line for fans, if it comes to the judge deciding this case you can kiss the current season goodbye. Fans need to hope for a different resolution.

Over the weekend, we had passed along a report that there had been some recent “back channel” negotiations going on between the league and the players association.

That talk is “nothing significant” PBT was told. That’s not going to help.

Instead the battle remains on the antitrust legal front. The players’ attorneys are pushing for summary judgment (not an injunction, as the NFL tried and failed to get). Still, summary judgment hearings would not happen until the spring (April or May), which means by then the 2011-12 NBA season would be lost.

Hope of a partial season springs from the fact in the next few weeks (likely after Dec. 5) we can expect the judge to order more mediated negotiations between the two sides, PBT was told. Mandated mediation is commonly part of anti-trust lawsuits, essentially a chance for the judge to make sure the two sides really want to go down this path. To give the sides one more chance to settle their differences without a judge involved. (It is possible one side picks up the phone and calls the other to ask for a negotiating session, but that is the less likely scenario. The owners have said they wouldn’t do that and players attorney Boies said he would not because the league is not receptive.)

A judge likely will order mediated negotiations by the middle of December if not before, according to the source. Talks would start soon after. This would be similar to the talks when federal mediator George Cohen sat down with the sides last month.

The one key difference would be the level of pressure on both sides to figure this out — the players do not want to lose a season of salary ($2.2 billion), the owners do not want to lose a season of revenue (at a much higher percentage for them than the last deal), plus neither side wants to damage the game by costing a full season. What is the point of fighting over how to divide up the revenue pie if the pie itself gets smaller?

In addition, the threat of summary judgment — which would certainly be a huge loss for whichever side did not convince the judge of its case — is another motivation for both sides to figure this out.

The challenge is that people from both the owners and players have suggested they will come into the next negotiations with the last offer they made off the table. Stern has threatened a “reset” offer of 47 percent of BRI for the players and a “flex cap” that is really a hard cap. The players have suggested in kind their last offer of a 50/50 BRI split with more system issues leaning in their favor is something the owners may never see again.

This is not where either side wanted to end up. Union officials have said that the disclaimer of interest was the route of last resort — they wanted to negotiate in good faith. That’s why they didn’t decertify in July or August, they thought this could be worked out. After David Stern’s last ultimatum they felt they had no choice. League officials will tell you they expected this — which is why they filed a preemptive suit back in August — and that the union had bad timing to do disclaim interest now. The league says it has given far more than many owners wanted just to make a deal.

For better or worse, the courts are involved now. For fans they can just hope that the upcoming mediation sessions will turn out different than the last ones.

NBA coaches association head pleads for end of lockout

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While the NBA lockout starts to reach the “fans are really getting ticked” portion of the program, we have another plea for sanity. It’s likely to fall on deaf ears, but we bring it to you anyway.

Michael H. Goldberg, Executive Director NBA Coaches Association, wrote an open letter to both sides asking for the two sides to resume talks and figure this thing out.

It was published by Sports Illustrated and includes a Joni Mitchell quote (“Don’t it always seem to go, that you don’t know what you’ve got ’til it’s gone…”) so you know he is serious. Here are the highlights.

I’m urging this call for an immediate return to discussions by the parties solely as a veteran of the business of the sport and not as a representative or spokesman of the NBA Coaches or any other constituency. As someone who has “seen it all” in the NBA (and other professional sports), I urge the principals involved in the current labor dispute to immediately back away from the precipice, get back to the bargaining table, and redouble their efforts to resolve the current conflict and get a deal done without delay.

The upcoming NBA season must be saved. To do otherwise will cause a self-inflicted economic blow to an enterprise that over the years through the hard work of players, team owners and the League Office has become a great global brand, but, like every business operating in today’s fragile economic landscape, one that is more susceptible to “decline and fall….”

We all need to concede that the NBA does not operate in a financial bulletproof bubble. After months of discussion, it has become apparent that a solution to the current situation means sacrifice and change. The parties have moved in that direction. Now is not the time to step back and harden positions. Litigation and the “courts” are not the answer – “been there and done that.” Let the parties have the courage to make a deal, even if it requires taking some risks and accepting the unpalatable for the short term, so as to ensure that going forward there will be a viable and robust NBA business, one that is able to withstand the current financial environment and further prosper.

That sounds fair and about right. So, good luck getting anyone to listen to it.

NBA owners going to sit back, wait out players

Mark Cuban, David Stern

The story today on NBA lockout moves is the same story we may be seeing for the next few weeks:

Nothing. Nada. Zip.

The NBPA filing a disclaimer of interest and walking away from the talks on Monday, followed by antitrust suits against the league, has not moved the owners one bit. Rather the opposite — the owners have retrenched. I have heard in the last few days that the owners are going to sit on their hands and wait for the players to come back to them. I’m not alone. This paragraph from Adrian Wojnarowski of Yahoo pretty much sums up what everyone is hearing.

League officials aren’t rushing to meet again with the players prior to the Thanksgiving holiday and are waiting on former Players Association executive director Billy Hunter to contact commissioner David Stern about restarting talks again. The owners have little, to no interest, in negotiating a settlement with the players’ prominent new front man, antitrust attorney David Boies..

Exactly. The owners are done talking, the hardliners have won and they are looking to break the union. There will be talks again, my guess is that around the second week of December the two sides will sit down. Now who is talking — Billy Hunter or the union attorneys — and what the starting point of those negotiations are remain to be seen. But eventually there will be talks.

It’s all frustratingly stupid. The owners could have offered an olive branch to players at the end of the negotiations and we’d be talking free agents and trades right now, not lawsuits. The players could have read the owners better (maybe by decertifying July 1), or they could have counter-offered what Stern put forward rather than dissolving the union. Both sides could have acted like rational adults.

But for now it’s not good news, it’s no news. As it’s going to be for a while.

Former NBA union head no fan of decertification strategy


A couple months back when PBT spoke with Charles Grantham, former head of the National Basketball Players Association — the players union that is now the players trade association — he said that there were some hills worth dying on for players in these labor talks. Things like guaranteed contracts or the owners’ idea of decoupling revenue and the salary cap were issues the players could not give in on.

But there comes a time when it’s about playing basketball if you get those things.

Which is why Grantham told the USA Today he didn’t love the union’s move of dissolving (via a disclaimer of interest) and having the players sue the league on antitrust grounds. He thinks the union is missing the big picture.

“I certainly think the overall players should’ve had the opportunity to vote on whether or not to proceed. … I’m perplexed as to how we go from agreeing to 50% ready to move forward and not recognizing that you can’t get more than that no matter what the system says. When you start talking about missing the season, you have to consider a cost-benefit analysis. How much is it going to cost me as a player to get a system change? Is it worth me losing up to 25% of my salary?

“I’m not certain this move is good for the them. I can see where it’s good for the antitrust attorneys who might be charging as much as $1 million a week in fees or the agents who see that seven-point swing (from 57% to 50% BRI) as adding up over time as quite a bit of money. But it also is money that hasn’t been earned. Theoretically you’re losing that money, but at the same time the pie is bigger and the average salary is increasing.”

Grantham seems to believe — as do I and some agents, as well as the owners — that if David Stern’s last offer had been put to a vote of the players, it would have passed. Not overwhelmingly, but it would have passed. And in the long haul the players would be better off on the courts than in the courts.

Make no mistake, the owners think they can wait the players out, that the players will eventually cave. Stern tried to get a deal that he thought his owners would approve, but he didn’t give the players a way to save face in there. So the players rejected it and went to the courts. Now multiple sources are saying the owners are dug in and going to let the players miss another check or two (Dec. 1 is the day the players would have been paid). They are going to wait out the players.

When you stand back and look at the big picture, you wonder if Grantham isn’t right and the players shouldn’t have voted on the last deal.

The next NBA legal battle: venue for the legal battles

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When the NBA filed a preemptive lawsuit in New York back in August trying to take the teeth out of decertification of the players union, the union’s lawyers accused the league of “forum shopping.” Meaning the goal of the lawsuit was to choose the venue for future legal battles, not win the suit itself.

Now the venue is the battle. Antitrust lawsuits filed by players this week were in northern California and Minnesota. Where the case is heard could help determine the outcome.

The Sports Law Blog tries to explain this to us non-lawyers.

In both the 8th and 9th Circuits (where the players filed suits), courts have repeatedly held that the non-statutory labor exemption shields from antitrust scrutiny only activities that (1) involve mandatory subjects of bargaining, (2) primarily affect the parties involved, and (3) are reached through bona fide arms’ length bargaining. Based on this standard, the U.S. District Court for the District of Minnesota concluded in McNeil v. Nat’l Football League, 790 F. Supp. 871 (D. Minn. 1991) that the non-statutory labor exemption cannot apply after a union disclaims interest: presumably because after a disclaimer the second and third prongs of the non-statutory labor exemption cannot be met.

By contrast, the U.S. Court of Appeals for the Second Circuit (New York, where the league filed) in Clarett v. Nat’l Football League rejected the 8th & 9th Circuit definition of the non-statutory labor exemption in favor of a far broader non-statutory labor exemption. Thus, in the Second Circuit, the mere act of disclaiming union interest might not impose immediate liability on a sports league for maintaining terms originally implemented before such a disclaimer.

Yea, I start to get lost in there, too. But the idea is that the venue matters — the players filed where they did for a reason, as did the league in August. Whoever wins the coming venue battle will win the first skirmish of this war.

Or, you know, the two sides could sit down and negotiate a deal like adults. Just sayin’.