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Steve Aschburner

With no talks planned, focus on labor mess turns to courts

Posted Nov 2 2011 12:03PM - Updated Nov 2 2011 7:31PM

So busy lately, firing off (and leaking) solidarity letters or catching (and correcting) misguided tweets, the two sides in the NBA labor dispute have opened a vacuum in what should be ongoing bargaining sessions.

Rushing in to fill it? Lawyers, judges and reams of paperwork filled not with the financial numbers needed for a workable compromise that could end the four-month-old lockout, but with verbiage of a litigious sort.

Most everyone involved agrees that the deal that finally will turn on the lights in NBA arenas is to be found in the hotel ballrooms where the owners and the players have been meeting. But until they get their butts back in those chairs and get it done, courtrooms might loom large.

Representatives from both sides were headed to court Wednesday for oral arguments in the National Basketball Players Association's motion to dismiss an NBA lawsuit. That lawsuit seeks to block the union from decertifying (or, more accurately, "disclaiming interest") and pursuing antitrust remedies against the league.

An NBA lawyer has urged a judge to help end a stalemate with the NBA players union by agreeing to consider the legality of its lockout. The NBA wants federal Judge Paul Gardephe to rule that the NBA's lockout will not be considered an antitrust violation if the players dissolve their union.

The judge says courts historically have recognized that legal threats sometimes are made as part of the posturing of negotiations. He did not immediately rule.

Meanwhile, the National Labor Relations Board is expected to release its decision ... well, sometime ... in the complaints filed by both sides that the other has not bargained in good faith during these labor talks.

Is it likely that either outside body -- the Second Circuit court or the NLRB -- will provide the key necessary to unlocking the lockout?

The short opinion seems to be no.

"I suspect that the NLRB doesn't want to interject itself while the parties are talking," said Michael McCann ( @mccannsportslaw), director of the sports law institute at Vermont Law School and a legal analyst for NBA TV and "I don't think either side has a strong charge, and it's very hard to show bad-faith bargaining. The owners at this point might just have better bargaining leverage and that, in itself, is not illegal."

As for the union's and owners' fight in the Second Circuit, sports law expert Gabe Feldman sees that as unlikely to resolve the labor battle either. "It's a procedural hearing Wednesday," said Feldman, who heads the sports law program at Tulane and has contributed to the NBA discussion via Twitter ( @SportsLawGuy). "The judge likely will take some time to rule."

The lawsuit was filed by the NBA in early August in an attempt to head off the union's decertification option as a tactic in gaining leverage in the negotiations. It stemmed from the owners' view that decertifying would be a sham -- but also that, if the union dissolves, the courts would not have the authority to end the lockout. Also, it argues that, were decertification possible and successful, all existing guaranteed player contracts should be voided.

The union's stance at this point is much simpler: It says that decertification has not been imminent and therefore it's premature for a court to rule on it. It views the NBA's lawsuit as an attempt to "forum shop" in advance, seeking the Second Circuit as a court more likely to favor the owners. The players, by contract, might prefer the Ninth Circuit to eventually hear such a case, given past rulings in California favorable to unions.

This matters, of course, only as long as decertification remains in the union's toolbox for addressing this lockout. The legal proceedings involved in such a move by the players could grind on for months or years, but Feldman said that the 2011-12 season wouldn't necessarily be lost.

"The players would likely ask for a temporary restraining order to block the lockout while the case proceeds," he said. "If they got that, it would be a victory. The decision would be appealed but the owners would be forced to implement [work] rules and, conceivably could face triple damages if they lost an anti-trust suit."

That suit could take years to litigate, though, which is one reason -- along with the lack of control and uncertainty -- that both sides should be leery of the decertification option.

"It gets really murky and into almost entirely uncharted territory," Feldman said. "The risks and the costs rise. That really is the nuclear option."

All over a 2.5 percent gap in the split of basketball-related income? That's where the CBA talks sit at the moment, with the owners offering a 50-50 split and the players seeking 52.5 percent. Enough details have leaked from both sides to indicate that many other elements of an acceptable labor deal have been worked out, awaiting only a compromise on the dollars and a few trade-offs on remaining "system" issues.

That amount of progress doesn't preclude a NLRB ruling for one side or the other. Legally, if it found in favor of the union, the union could seek an injunction to ban the lockout (though, as demonstrated in the NFL's recent case, the Eighth Circuit quickly reversed the injunction and the lockout continued). If it found in favor of the league, the players would lose even more leverage.

But for all the charges that "take it or leave it" ultimatums have been issued by both parties, and for the weekly breakdowns in talks, the owners and the players do keep ending up in that room together. That's something that didn't happen nearly as often during the 1998-99 lockout that stretched into January. And with dueling charges to work through, the NLRB might be taking longer than ever, hoping that the NBA gets its own house in order. And unlocked.

The Associated Press contributed to this story.

Steve Aschburner has written about the NBA for 25 years. You can e-mail him here and follow him on twitter.

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