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.