Now that the NBA players have disbanded their union and taken their labor fight with the owners to the courts, they have given up a considerable level of control in how the whole process plays out.
Two groups of players have filed antitrust lawsuits against the league — one in California and one in Minnesota — in hopes of turning up the heat on the owners after negotiations for a new collective bargaining agreement broke down Monday.
So begins a seemingly endless series of court filings and back-and-forth responses written by lawyers in complex legalese that promises to go on for months, if not years, until the two sides are able to reach agreement on a new deal.
Case in point: the NBA wrote a letter to the judge overseeing its pre-emptive lawsuit in New York on Tuesday arguing that the players' decision to disband the union proves the league's point that the union planned to do this all along.
The players fired right back in their own letter, arguing that the decision should not stop U.S. District Judge Paul Gardephe from dismissing the league's lawsuit, saying the decision to disclaim interest was "uncertain until it was made."
""The hope is that the magnitude of the uncertainty and complexity will cause both sides to come back and put aside the legal arguments and get back to talking about BRI and system issues," said Gabe Feldman, director of the Sports Law program at Tulane. "The easiest way to get these lawsuits to go away is to agree on terms of a new collective bargaining agreement."
Meanwhile, impatient fans are making their voices heard. They have found a new definition of NBA — saying it now stands for "No Basketball Anymore," a phrase that was trending on Twitter on Wednesday afternoon.
With that in mind, here is a look at what's happening in the NBA labor fight and what could happen next.
Q: What is the difference between disclaiming interest in the union and decertifying?
A: Timing, more than anything else. Decertification is a more formal process that requires a petition being signed and a waiting period of 45-60 days for the National Labor Relations Board to conduct a full vote of the rank-and-file union members.
Disclaiming interest, on the other hand, is a much quicker means to a similar end — filing an antitrust lawsuit. It is also easier to reform to a union, Feldman said, should the players need to band together again to approve a new collective bargaining agreement, as the NFL players did in their labor fight with the owners this summer.
Q: So what is the difference between the labor cases of the NFL and the NBA?
A: The biggest difference is the timing of the unions' dissolution. The NFL's union disbanded in March, almost six months before the 2011 regular season was scheduled to start. The reason is the previous collective bargaining agreement stated that if the players remained a union through the deal's expiration, they could not disband for six months. That prompted the NFL players to disband the union the day the agreement expired, which also gave both sides months to fight out the battle in court before games were jeopardized.
There was no such clause in the NBA's deal. The players continued negotiating with the owners through the summer and even after the first month of regular season games were canceled. The problem with waiting to disclaim interest, however, is that checks and games already are being lost while the fight enters the slow and deliberate legal system.
"The NFL owners and players had time to let the legal battle play out. The NBA owners and players don't," Feldman said. "This has to be a quick legal strike, and unfortunately in our litigation system, there aren't many opportunities to get a quick legal strike."
Q: Why have two antitrust lawsuits been filed?
A: There are a couple of reasons. First, because the players are no longer governed by a union, they are free to do as they please on an individual basis. One group, including star players Carmelo Anthony and Kevin Durant, has filed a lawsuit in Northern California in conjunction with the players' association. Another group, including rookie Derrick Williams and Timberwolves forward Anthony Tolliver, have filed in Minnesota.
It's no coincidence that those two district courts were chosen. The federal court in San Francisco is under the jurisdiction of the 9th U.S. Circuit Court of Appeals, considered the most liberal, and therefore labor-friendly, of the 13 circuit courts. The federal court in Minnesota was the venue for more than two decades of legal fights between NFL owners and players, who enjoyed a healthy share of victories in that venue.
The owners filed a pre-emptive lawsuit in the Southern District of New York, which has sided with the NBA several times before. It is likely they will push to get any labor-related cases transferred to Manhattan.
"That could be the threshold battle: where is the case heard," Feldman said.
Q: Can negotiations still take place while litigation is pending?
A: Yes and no. Union leaders Derek Fisher and Billy Hunter no longer have the power to negotiate and agree to terms for the players. No longer a union, the NBPA is now a trade association. It can't fight fines or suspensions or file grievances for players. It also cannot regulate player behavior or agent behavior, which has led to some concern about agent poaching.
What can happen, and what did happen this summer with the NFL, is lawyers and representatives for both sides can hold discussions under the guise of antitrust settlement talks.
Of course, Hunter and any attorneys representing the players must walk a fine line in such negotiations. Acting as a leader and decision-maker could strengthen the league's argument that the dissolution of the union was a sham and a negotiating tactic.
Q: Did dissolving the union work for NFL players?
A: It depends on how you define "work." It's true the NFL and its players agreed on a new deal without missing any regular season games. It is also true that the NFL players were granted a temporary injunction by U.S. District Judge Susan Richard Nelson that lifted the lockout the week after the NFL draft in June.
But that injunction was overturned on appeal to the 8th Circuit Court in St. Louis, a ruling that could be influential in the NBA's case.
Ultimately, Feldman believes, it was the motivation provided by $9 billion in NFL revenues to be split up that provided the onus for the owners to negotiate a deal with the players, not the threat of losing an antitrust lawsuit and the enormous monetary damages that would have come with a defeat.
"The NFL owners didn't claim they were losing money or that the system was broken," he said. "In the NBA, many owners are claiming they're losing money and that the system is broken. So the ownership side is a little more entrenched in their position."
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