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’.