Friday, November 18th, 2011...1:35 pm

The NBA Lockout’s next opponent: Federal District Court

Jump to Comments

Ed’s Note: We are going to skip for now any coverage of the impending Syracuse allegations because I am probably unable to discuss it rationally. I am a biased Syracuse fan who loves Jim Boeheim and Syracuse Basketball. Moving on to regularly scheduled programming: the NBA Lockout once again…

By Sam Mann

A few days ago, the National Basketball Players Association (NBPA) elected, through its Executive Committee, to reject the League’s latest proposal and not send it along to its full membership for a ratification vote. They further announced that the NBPA would de-certify as a union and launch an antitrust action against the league. If that sounds familiar, it’s because it is the same thing that the NFL Players Association attempted last summer. Two suits were filed, one in Minnesota, the other in California.

Speaking of the NFL, the big “legal news” surrounding this event was an announcement of who the NBPA has hired as its legal representation. The union’s main lawyer through most of this had been Jeffrey Kessler, Global Litigation Chairman at Dewey & Lebouf. Mr. Kessler is a veteran of these matters and was a big player for the NFL Union in their decertification battle as well. Which brings us to his new co-counsel, superlawyer David Boies (who was on campus here at William & Mary two weeks ago for the McGlothlin Leadership Forum). Boies was also involved in the NFL labor dispute, but as counsel for the league. This brings up certain conflict of interest questions, laid out in the above AmLaw article. There are two owners, Paul Allen and Stan Kroenke, who own teams in both leagues. Boies has also previously served as counsel to Allen in the Microsoft antitrust litigation.

What does it mean that Boies has “switched sides?” I’m not entirely sure. Maybe this gives the NBA a better chance to win the antitrust suit, which the NFL players were unable to do on appeal. The biggest major difference is that the players negotiated, presumably in good faith, for months before decertifying and filing suit. No one can really be sure whether this will change the opinion of the court.

Referring back to Kessler, he has been heavily criticized in the media recently. First, by David Stern and then also by media members themselves. He also made headlines with a particularly inappropriate comment comparing Commissioner Stern to a plantation owner last week. Kessler has since apologized, but it is clear that his role in this situation has been justifiably questioned.

The following are my thoughts on this process, and the lockout in general:

  • Why is every sports antitrust suit filed in Minnesota? I’m sure there is a reasonably answer out there somewhere, but I haven’t found it yet.
  • Both sides are risking a great deal of goodwill right now. Up until recently, there was still a possibility of a long season. That is now gone. In all likelihood, this season will be canceled. A miracle deal sometime in January could bring us a 40-50 game season, but even that seems like a remote chance. This coming off one of the more successful NBA seasons since the Jordan era.
  • I believe decertification and filing suit means that negotiations are on hold until after the Holidays. The owners are likely to be pretty upset, and the union would be a little silly to decertify and then run back to bargaining table. This has become much more the legal settlement of a case than a collective bargaining negotiation.
  • The NBPA are suffering from a crisis of leadership. Billy Hunter has not handled this situation well. It is clear that the Owners held most of the leverage, but Hunter has made this whole process about himself. Clearly his emotions and personal interest have come into play. He doesn’t want to “lose”  or “back down,” and wants to make sure whatever happens he keeps his job as head of the Union (when it reconstitutes, I guess). The same can be said for Kessler. He has done nothing but inflame the situation.
  • The NBPA should hire an outside negotiator or committee to handle the rest of this process. They cannot allow Hunter, Kessler and the Player’s Executive Committee to handle this going forward. Hunter and Kessler are too emotional and the Player’s Committee just does not have the business savvy to understand all the working parts. These players don’t even handle their own contract negotiations. How can they expect to handle league-wide negotiations? Their agents need to get more involved.
  • Which brings us to the next point: all sides in this are fractured. The owners have significant dissension. Large-market, small-market, hardliners, etc. The Players, despite their portrayal to the media, are not unified either. Apparently a great deal wanted decertification in August, while others wanted to vote on the deal the other day and just get back to playing. Their agents also have divergent interests. It’s kind of a mess.
  • Finally, if the Players truly wanted to decertify, they should have done so in August or September. Now that the legal process is involved, everything will slow down. The possibility of missing the whole season is very real, perhaps even likely. That hurts the players more than it hurts the owners.

I don’t know what will happen going forward, but I highly doubt any positive news will come out before the Holidays. Not good for NBA fans.

Comments are closed.