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Steve Aschbruner

With lawsuit consolidation, sides sticking to the courts

Posted Nov 21 2011 8:22PM - Updated Nov 22 2011 3:25PM's Labor Central

For those trying to keep score of the latest legal wranglings in the NBA lockout, the pertinent numbers at the end of posturing Monday was:

• Players' lawsuits: 1, down from 2.

• Phone calls to initiate settlement talks: 0, same as before, in either direction.

• Duration of the lockout so far, in days: 144

The last of those numbers is automatic and unrelenting, a slow, steady drip ... drip ... drip worse than Chinese water torture to NBA fans. But the first two merit a closer look. The attorneys representing the NBA players in their antitrust lawsuits against the league announced Monday that they were consolidating their efforts and focusing on the courts in Minnesota as their preferred forum.

Last week, the players had filed class-action suits in U.S. district courts in northern California and in Minneapolis. But they withdrew that California complaint, attorney David Boies said.

"This should permit us to expedite the case," Boies said. "It [consolidation] could have been done either place. Talking it through ... we thought things probably would move faster in Minnesota. The docket is less congested there."

As he had when meeting with reporters six days earlier, Boies made it clear that the players' preference would be to settle the lawsuit. Talks between the attorneys on both sides could serve as a framework for what eventually would become a new collective bargaining agreement. In terms of time, money and potentially an NBA season saved, the choice to avoid hearings, motions and at some future date a trial seems like a no-brainer.

As Boies acknowledged Monday: "Eventually, people come to the realization that litigation is not the best way to resolve most disputes. Most disputes ought to be settled. Trying a lawsuit is fun for lawyers. It's our form of competition, I guess, in some ways. But it's not good for the system and it's not good, generally, for the client if there's another alternative."

One small snag in enacting that plan: Someone has to pick up the phone and punch in the other guys' number.

That hasn't happened.

More days have ticked off the NBA calendar, more games and paydays and moments of happy distraction have been lost from season, more hits have been by both sides in the ugly squabble over billions of dollars and privileges for the privileged -- and that hasn't happened.

A phone call.

"If they had the same attitude that we told you six days ago -- which is, this is a lawsuit that ought to be resolved -- if that was their attitude too, I'd be happy to give them a call," Boies told the media folks who participated, either in person or via conference call, in his news conference Monday. "If it's just a question of who calls whom, I don't have any problem with making the first call."

Boies was pressed on his refusal to contact the NBA's attorney by veteran basketball writer Chris Sheridan, proprietor of Sheridan said he would press NBA commissioner David Stern and the league's legal staff -- Jeffrey Mishkin, Rick Buchanan and others -- just as hard if they were the ones meeting with reporters Monday.

Boies' voice rose in response. "In the face of somebody saying, 'I don't want to talk to you, we've got an offer, take it or leave it, we've got an ultimatum, we're going to make no more propsoals,' and somebody saying, 'this is baseless, it ought to go away,' that's a waste of time to make a telephone call."

Maybe not. Mike Bass, NBA senior vice president, marketing communications, said later Monday evening: "Mr. Boies is wrong. As the union knows, we're very receptive to negotiations without regard to who places the call."

And Boies, after his session with reporters ended, did allow that he might place a call by Wednesday.

The NBA did not make its principals in the labor dispute available Monday. It did, however, release a statement addressing only the players' withdrawl of the California complaint.

"We assume that Mr. Boies was not happy with either the reassignment of the case from Oakland to San Francisco or the fact that the new judge scheduled the first conference for March 2012," said Buchanan, NBA executive vice president and general counsel. "This is consistent with Mr. Boies' inappropriate shopping for a forum that he can only hope will be friendlier to his baseless legal claims."

That's the NBA position -- the antitrust suit will not prevail, the collective bargaining of a new CBA had not broken off and the National Basketball Players Association's disclaimer-of-interest in disbanding the union is a negotiating ploy only. The league filed a suit on Aug. 2 in federal court in New York contending just that and seeking a declaratory judgment against the players' maneuver.

Another alleged reason for the league's litigation three months ago was to establish a "home court" advantage, based on previous cases decided in the Second Circuit that were viewed as being favorable to the NBA's position. That could lead to a venue fight, with the league possibly seeking to move all proceedings to New York.

"Most courts reject the attempt by defendants to pick a particularly favorable forum," said Boies. The players' choices, though, of the Eighth Circuit (Minnesota) and initially the Ninth Circuit (northern California) seemed to be the exact same tactic.

In consolidating the lawsuits, the plaintiffs originally listed were combined, with their names joined by other NBA players who sought to be included. Now the list is as deep as a title contender's roster: Carmelo Anthony, Chauncey Billups, Caron Butler, Baron Davis, Kevin Durant, Ben Gordon, Kawhi Leonard, Steve Nash, Leon Powe, Anthony Randolph, Rajon Rondo, Sebastian Telfair, Anthony Tolliver and Derrick Williams, on behalf of all NBA players.

The initial court date in California was set for March 9. Boies said a date in December now might be possible in Minnesota. The NBA has to respond to the filing there by Dec. 5.

"One of the good things about lawsuits," the attorney said, "I know I'm going to hear from them in about [two more] weeks."

Unless an adult in one of the rooms decides to pick up a telephone sooner.

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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