Posted Nov 14 2011 5:41PM - Updated Nov 15 2011 7:05AM
NEW YORK -- For NBA fans who had grown weary of reading about businessmen and collective bargaining and BRI and mid-level exceptions and counterproposals followed by threats backed up by vague ultimatums, the players and the owners officially changed up the dialogue of the league's labor lockout on its 137th day Monday.
Fans will now be reading about lawyers and antitrust allegations and treble damages and the wrong kind of courts altogether, with the 2011-12 season in jeopardy of never getting played at all.
What, you were expecting basketball?
Courtside seats took on a whole new meaning -- and an NBA season of any length was dealt a potentially lethal blow -- when the players chose to dissolve their union and take their fight to court. They will accuse the league's owners and NBA commissioner David Stern of anti-trust violations, with an eye on triple damages -- potentially $6 billion -- as a way of making up for the compensation lost to a damaged and possibly canceled season.
In a meeting of 30 National Basketball Players Association player-reps that lasted almost four hours and was attended by another 20 players, union members in a claimed unanimous show of hands opted to pursue a "disclaimer of interest" strategy. The NBPA immediately dissolved, ending its role as a collective-bargaining agent for a labor contract that, at various times, seemed so close.
Billy Hunter, now the executive director of a "trade association" rather than a union, sent a letter to Stern notifying the owners of the decision. Now, outside counsel Jeffrey Kessler and attorney David Boies -- who, ironically, represented NFL owners when they thwarted the football players' decertification push last spring -- will become the key figures from the players' side, taking over for Hunter and union president Derek Fisher.
So no more long, lengthy labor sessions, with Hunter and Stern staring across a table at each other the way they had for more than 150 hours since the owners imposed their lockout on July 1? "I don't know," Hunter said. "Right now it's about seeking treble damages against the NBA and wiping the slate clean.
"This deal could have been done," he said. "It should have been done. We had given and given and given. And they got to the place where [the owners] just reached for too much. And the players decided to push back. They just thought it was totally unfair. It was more about surrender than it was about [the owners] getting a deal."
The league issued a statement from Stern, alleging that the players planned as far back as February 2010 to "abandon the collective bargaining process and start an antitrust lawsuit against our teams if they did not get a bargaining resolution that was acceptable to them."
It recalled that the NBA on Aug. 2 filed an unfair labor practice charge with the National Labor Relations Board (the union had filed one against the league, too). The league also filed, in the Second Circuit in New York, a pre-emptive lawsuit in federal court charging that the players would use a disclaimer-of-interest as a bargaining tactic. The NBA position is that this move violates labor law because it is intended as a bargaining strategy.
"There will ultimately be a new collective bargaining agreement," Stern said in the statement, "but the 2011-12 season is now in jeopardy."
After a news conference Monday afternoon, Hunter did talk about the possibility of a settlement that, in theory, could still allow for a shortened NBA schedule. The players chose to go the disclaimer-of-interest route rather than decertifying the union, he said, in part to skip the 45-day waiting period after they filed their petition to the NLRB. This starts the clock on the process, Hunter said, with the players' contention that damages -- over such anti-trust violations as the rookie salary scale and the Draft -- begin immediately.
Stern, in an interview on ESPN's "SportsCenter", directed pointed remarks toward Hunter and Kessler; Kessler, for context, is the fellow who referred to the commissioner as a "plantation owner" in an interview last week with the Washington Post. "Obviously Mr. Kessler got his way and we're about to go into the nuclear winter of the NBA," Stern said.
Stern and the owners had sought to deliver the details of their latest offer directly to the players, using tools such as Twitter, a YouTube video and finally a written summary of the proposal emailed to all union members. Included in those terms: A 72-game NBA season that would begin on Dec. 15.
A 0-game season that never begins is more like it now, given the pace at which gears grind through the courts.
Suggesting that a majority of them might not be in favor of this litigation-and-lost-season turn of events, Stern said in the ESPN interview: "If I were a player in the NBA, one of the 450, I would be wondering what it is that Billy Hunter just did."
Hunter and Fisher, however, said this process was begun Monday by the players themselves after the union leaders laid out possible strategies for dealing with the latest offer made by the owners Thursday. It called for a 50-50 split of basketball-related income (BRI), down from the players' 57 percent share in the old CBA, along with restrictions on trades and free-agency for big-spending teams. That offer also apparently underestimated the importance of some so-called "B-list" issues to players, such as two-way contracts for players sent to the NBA Development League and year-round drug testing.
The union listed some possible responses, such as putting the offer to a full-union vote, rejecting it outright or revising six critical "system" issues as a counter-offer (despite Stern's assertions that negotiating was over and a harsher was next). Hunter said that's when the players inquired about decertification or disclaiming interest.
"I think a lot of it had to do with the fact that there had been in excess of 200 signatures collected from the players to decertify and those 200 signatures were going to be filed tomorrow morning with the NLRB," Hunter said.
In other words, the support was there. And once the topic was raised, Hunter said, "It just snowballed."
Fisher said he felt the players in the room were united in this chosen stance, and he believes rank-and-file players who were not in New York Monday will stand with them. "The floor is always open to all of our guys," Fisher said, surrounded by the 50 players in Monday's meeting, including Kobe Bryant, Carlos Boozer, Elton Brand, Al Horford, Tyson Chandler and others. "Of course guys spoke out, said what they had to say. But still as a group, by the end of the meeting, that the decision that we needed to make."
As for those players who might say "I want to play, I want to get paid, I didn't have a say?" Milwaukee guard Keyon Dooling, one of the union's vice presidents, said: "Players in the room want to play and will miss money as well. So I think our body was represented. The guys entrusted us to make these decisions."
Boies, the high-powered attorney now in the players' employ, joined the session after a lunch break. He introduced himself and mapped out the steps of this process prior to the players' open vote on it.
An interesting quirk of Boies' involvement is that he argued against decertification -- not disclaimer of interest, specifically -- when the NFLPA played that card in its labor dispute. In fact, in a court brief filed in Minneapolis on March 21 and bearing his name, Boies argued that collective bargaining trumps this sort of maneuver.
"The law is not so easily manipulated," Boies wrote. "One party to a collective bargaining relationship cannot, through its own tactical and unilateral conduct, instantaneously oust federal labor law or extinguish another party's labor law rights. A union cannot, by a tactical declaration akin to the flip of a switch, transform a multiemployer bargaining unit's lawful use of economic tools afforded it under the labor laws into an antitrust violation giving rise to treble damages and injunctive relief."
The NFL prevailed and the NBA obviously concurs. In an interview with NBA.com Saturday, Stern called the union's dissolution or decertification a "failed strategy." He reminded that the league's lawsuit, in addition to arguing that this is a sham and securing what is considered a favorable forum for the league (as opposed to, say, California's Ninth Circuit), contends that individual player contracts negotiated within a CBA would be void.
"This is just a big charade," the commissioner said in the ESPN interview, "and really irresponsible, the timing of it. The union is ratcheting up to see if they can scare the NBA owners into something. That's not going to happen. What they've done is destroy something of incredible value to the players union."
Maurice Evans, another VP on the NPBA's executive committee, said there was little dissent within the room Monday.
"This is as united as we've been," Evans said. "We wanted to get that direction one way or the other: United in taking this deal or united in not taking the deal.
"We understand the consequences of potentially missing the season. We understand the consequences the players could face if things don't go our way. But it's a risk worth taking, because to me it's the right thing to do."
But turning to the courts, after so many hours and overtures made at the bargaining table, brings more unknowns into the equation. The NBA is a $4 billion industry, with the owners and the players each at risk of losing half of that.
"It's unfamiliar territory because it's never been done before," Dooling said. "Where we are right now, we felt like we did the best thing we could do. ... We have to sit back and wait."
And wait and wait and wait.
NBA.com's John Schuhmann and Sekou Smith contributed to this report.
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