Tag: NBA hard salary cap

Derek Fish of NBA players association speaks during news conference to reject NBA's latest offer in New York

It was players’ idea to decertify, but did they really understand?


How did this all go down? How did a Monday meeting where the union representatives were expected to reject the latest offer from the owners and make a counter proposal turn into dissolving the entire union and likely blowing up the NBA season with it?

The whole idea came from the players… well, if you think the players sit around and discuss the merits of different tactics of NBA labor law. So maybe we should look to the agents, except they are not thrilled with this move. Billy Hunter said did not come from union leadership. But while nobody will take credit, everybody had a hand in it at some level.

In the end, it comes back to the players. It’s their union. And this is how athletes react — they are competitive and will fight to win. They can make emotional decisions about winning that may not play out well in board rooms. They’ve been losing the negotiations so they responded in the most aggressive way they could. They took out the biggest club in their bag, even if this was not the best play at the time. And now here we are, staring at a lost season.

Here is what happened in Monday’s NBPA meeting, as reported by Ken Berger at CBSSports.com.

As Hunter described, union officials explained the owners’ proposal, which would’ve been replaced by a far worse one if the players didn’t accept it. He then laid out the options: present it to the full body for a vote; reject it; make a counterproposal; or give the NBPA the authority to “do whatever they deem necessary and appropriate going forward,” Hunter said.

“And then all of a sudden, the players said, ‘No, we want to talk about decertification or disclaimer,’ ” Hunter said. “So it actually came from the floor. And when it came from the floor, then that’s when we began to engage on the issue….

Players are not stupid and they understood the basic idea here, but did they really think through all the consequences? It’s hard to see enough guys getting behind this without a push from their agents, some of whom wanted to decertify July 1. That said, agents had been pushing for a player-led decertification effort that would have taken at least another 45 days (leaving time for negotiations). The disclaimer method — essentially the union disavowing the players — is much faster but much riskier. It’s not a move most agents wanted.

The decision to disclaim, announced after the nearly four-hour player meeting, stunned even those agents who had been clamoring for the players to decertify for months. Agents held a conference call late Monday afternoon, and according to a person who was briefed on it, hardly any of them were happy with the path the union chose….

“This is honestly the last thing I would’ve done,” one moderate agent said of the union’s disclaimer. “I can’t imagine these [players] truly know what they’ve gotten themselves into. … I don’t know an agent, including the decert agents, who are happy with this move.”

Did the players really get the consequences, that this may well have cost the NBA an entire season? And over what? Full mid-level exceptions for the seven teams playing the tax every season and to eliminate the repeater tax hikes for those teams? I get they players want a system that allows them more freedom of movement, but they got painted into a corner by Stern and rather than throwing the ball back in his court (with a counter proposal) they blew up the entire season. Stern gets to win the PR game again.

Adrian Wojnarowski of Yahoo pulled no punches on what he thought happened.

Too many of the player reps didn’t know the difference between a disclaimer of interest, decertification and “Dancing with the Stars” when they walked into that meeting. As it usually goes in these labor talks, whoever gets the players’ ears last can talk them in and out of almost any directive. The agents were locked out, cell phones confiscated at the door, and Hunter had a captive audience with some big fancy antitrust lawyers to make his case. Too many of those player reps are young kids who were given the task as a locker-room punishment, or older guys looking for the free annual meeting in the Caribbean.

Before they went this route, the NBA players should have talked to their NHL brethren and asked if losing a season was worth it, or if those guys regret the lost chances and lost salary more? It doesn’t feel like this strategy was really thought out all the way around the block.

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

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

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.