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The Lockout & the Raptors: Players approve CBA, Owners too! (1944)

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  • mcHAPPY
    replied
    Larry Coon with the latest, "Where do we go from here?"

    In utilizing a disclaimer of interest rather than an involuntary decertification, the players have chosen a timelier but riskier approach. The disclaimer will likely be challenged by the league as a "sham," as the NFL did when faced with the disclaimer issued by the players' association; the league argued that the dissolution was merely a negotiating tactic, and that the union was still representing the players' interests.

    The NBA players' union also passed up the opportunity to use the 45-60 days before a decertification vote to continue negotiating with the additional leverage the pending vote provides. Instead, the players decided that there was no reason to wait for a vote, because additional bargaining would be futile.

    "It was only when they concluded that the collective bargaining process was over with, and that there wasn't any purpose in continuing, that they took this action," Kessler said to reporters in New York on Monday.

    After the players file their lawsuit, the two sides can continue to talk, and it is even possible they will settle without ever going to court.

    "If there was an interest in settling that lawsuit," Boies said, "then as Jeffrey [Kessler] says, what would happen is the lawyers for the players would meet the lawyers for the owners and we would try to come up with some kind of settlement."
    A possible timeline of events is as follows:

    • The players' lawsuit will be filed this week.

    • The owners will formally respond and address the players' complaints in early December.

    • If the players sue outside of New York, then the first battle will be over the venue of the lawsuit.

    • Once the venue is determined, the stage is set for the initial skirmishes over discovery and the like. If the players follow through on their summary judgment strategy, it would happen at this time.

    This could happen as early as January or February if the case is filed in New York, or somewhat later if the venue battle causes a delay.
    But the real point of dissolving the union is to generate leverage. The players don't really want to go all the way to trial -- they want to settle. If the players win a major victory early in the case and the owners are forced to accept the prospect of a catastrophic result in court, then the players have gained real leverage.

    "Even if you could get an injunction," Boies said, "[...] it would be, obviously, a drawn-out process. And I think what the players are focusing on right now is, what is the fastest way to get this resolved?"

    And this is why, in my opinion, the players will eventually lose on the grounds their action is a negotiating tactic:

    Hunter admitted that there is now a "high probability" that there will be no season, but still left the door open just a crack. "Today is November 14," he said. "That is ample time for us to save the season.

    "It's never too late for David to call me."
    http://espn.go.com/nba/story/_/page/...n-rejects-deal

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  • mcHAPPY
    replied
    johnhollinger John Hollinger
    We're going to miss an entire season over mid-level deals for tax teams. Congratulations, you're all idiots.
    John Hollinger nails it via Twitter.

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  • mcHAPPY
    replied
    Bendit wrote: View Post
    This was date stamped Nov. 3 so is without the furor of the last week's events. McCann is a law professor on sports law and the linked piece seems to lay out the pitfalls for either side quite well.

    Linkhttp://sportsillustrated.cnn.com/201...ify/index.html
    Thanks for posting this. I read this before but I can't remember if i posted it here or not.

    #2 is crucial and is why I do not understand what the players are thinking. If this is a negotiating tactic and the league doesn't budge and in fact offers the 47% and flex cap, they really f#cked up.

    2. How likely is it that the players would prevail in an antitrust litigation?

    Not likely.

    For starters, the NBA has been one step ahead of the players when it comes to antitrust litigation. In August, the league filed a lawsuit in the U.S. District Court for the Southern District of New York, decisions from which are reviewed by the U.S. Court of Appeals for the Second Circuit. The NBA asks the court for preventative relief, namely to block players from challenging the lockout on antitrust grounds. More ambitiously, the league also asks the court for permission to void player contracts in the event the union legally decertifies. This week U.S. District Judge Paul Gardephe ruled that he needs more time to evaluate the claims. His decision would likely delay the filing of separate antitrust litigation by players.

    In antitrust litigation with players, the NBA is bolstered by recent precedent, specifically the U.S. Court of Appeals for the Eighth Circuit's opinion in Tom Brady et al. v. NFL. In that case, the Eighth Circuit clearly stated that the NFL was authorized to conduct an injunctive-proof lockout under federal law, specifically the Norris-La Guardia Act. Although the Eighth Circuit's opinion is only influential -- rather than binding -- in other federal jurisdictions, it supplies the NBA with a favorable opinion from a very similar and recent dispute. Indeed, had the NFL lost before the Eighth Circuit, it is possible the NBA would have adopted a different legal strategy than the one it has shown.

    The NBA's choice of filing the lawsuit in the Second Circuit, instead of the Eighth Circuit, is intriguing. With the Timberwolves based in Minneapolis, the NBA would have seemingly possessed sufficient nexus to file the lawsuit in the Eighth Circuit, which has appellate jurisdiction over federal district courts in Arkansas, Iowa, Missouri, Minnesota, Nebraska, North Dakota and South Dakota. And had the NBA's lawsuit been filed in the Eighth Circuit, it would have been governed by favorable precedent set in the Tom Brady litigation. However, the NBA probably reasoned that 1) since both the NBA and players' association are headquartered in New York, the players could have sought to have the case moved to the Second Circuit, a process which would have delayed the litigation process; and 2) the Second Circuit has its own set of league-friendly labor and antitrust law rulings, including in Maurice Clarett v. NFL (NFL age limit) and Silverman v. Major League Baseball Player Relations Committee (MLB owners unilaterally changing rules during the 1994 baseball strike).

    By filing a lawsuit in the Second Circuit, the NBA also makes it much harder for players to seek redress in a more sympathetic circuit, such as the U.S. Court of Appeals for the Ninth Circuit, which has appellate jurisdiction over courts in California, Oregon and Arizona and which is regarded as more pro-labor than other federal circuits. While players could still file an antitrust claim in the Ninth Circuit, courts there would be poised to refuse to consider the claims given that the relevant issues are already being heard in the Second Circuit.

    In terms of its legal arguments, the NBA may be poised to offer more persuasive reasoning for the legality of its lockout than the NFL could muster for its own lockout. One key factor in a legal analysis of whether a lockout should be enjoined is the irreparable harm to the locked out employees. Unlike NFL players, who had nowhere else to play professional football during the lockout and some of whom would have never returned to the NFL had the 2011 season been canceled, some NBA players have already signed lucrative contracts with teams in foreign basketball leagues. The NBA can maintain that if players can sign to play abroad, then a lockout will not cause their professional basketball careers irreparable harm (or at least will cause much less harm than NFL players suffered/would have suffered). In response, the players would likely contend that playing abroad, and living in a foreign country (and possibly relocating one's family there), constitutes a materially different experience than having an NBA career and living in a U.S. city. Plus, many NBA players have not been able to find roster spots abroad.

    The NBA also boldly demands that if the union decertifies in a way endorsed by a court, the league should be able to declare all player contracts void and unenforceable. The league insists that because the Uniform Player Contract (signed by every NBA player) is contained in and governed by the collective bargaining agreement, player contracts should become void once the collective bargaining relationship between the league and players ends. In response, the players can argue that the dissolution of a union should not empower an employer to void contracts between individual employees and the employer. If the NBA ultimately prevails in its argument on player contracts, players would collectively stand to lose billions of dollars. It would also throw the league and its franchises in an uncertain state, with every player, save for those drafted in 2011 and who haven't signed contracts, becoming a free agent.


    Read more: http://sportsillustrated.cnn.com/201...#ixzz1djCmnGy0
    Note the bolded section in the last paragraph. With all contracts potentially voided, the Raps only have a young C to build with.
    Last edited by mcHAPPY; Mon Nov 14, 2011, 08:16 PM.

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  • GarbageTime
    replied
    Tim W. wrote: View Post
    Well, the team actually has to want him. That's the only caveat. Chris Paul can sign with any NBA team that wants him. My guess is that would be everyone.

    And obviously a player who is not wanted by every team would not be able to sign with every team. It's not the CBA that restricts players from going anywhere they want. It's their desire to make more money and their skill level. That's reality. I can't walk up to Bryan Colangelo, ask him where my office is and demand that my starting salary be $1 million. Well, I can, but I'd be kicked out.
    Yes ofcourse the team has to want any player. And then ofcourse be willing to pay them an agreed upon amount. And then be willing to pay any tax penalties that may be incurred on top of that. So when you put greater restrictions (or penalites) on any one of those decisions you are actually putting greater restrictions on a players choice.

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  • jimmie
    replied
    GarbageTime wrote: View Post
    who is making that decision? you? why? based on what?
    Based on this:

    do you have the kind of power over who you work for, and where, that you seem to be advocating that NBA players are entitled to?
    Well, do you? And if you don't, why do you think NBA players should have it?

    my point is not whether they deserve or don't deserve that choice... rather just that they are losing part of it, not gaining it.
    Oh, I see. It's really just semantics. Right.

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  • GarbageTime
    replied
    jimmie wrote: View Post
    OK, let me put this another way for you: The choice they've enjoyed over the course of the previous CBA was more choice than they ever deserved. How about that? Again, to relate to the real world: do you have the kind of power over who you work for, and where, that you seem to be advocating that NBA players are entitled to? I sure as hell don't, nor do any of my union brethren.

    And if you want to talk restriction-less choice, how about the NBA teams that never get to "choose" from the full pool of players they want to sign, because some other team is willing/able to offer more money?
    who is making that decision? you? why? based on what?

    my point is not whether they deserve or don't deserve that choice... rather just that they are losing part of it, not gaining it.

    And I am not talking 'restriction-less' choice.

    I guess this is my fault for criticizing the infallible NBA ownership group and David Stern, who only have the best interest of the average fan at heart. They are not known for telling a lie, or stretching the truth and in a pitted battle against the hated and evil NBA player.

    Leave a comment:


  • Tim W.
    replied
    GarbageTime wrote: View Post
    first of "just about anywhere" is not everywhere... so immediately you do have a lack of choice. Secondly Chris Paul is not every player, and the vast majority of players are not privileged enough to receive any paycheque they may want from any team they want to play for.

    And no, Free agents don't want to give up the ability to go where they please... as thats is giving up choice.

    And just to be clear, this is not a comment on whether the CBA is right or wrong, or the best/worst/average outcome.
    Well, the team actually has to want him. That's the only caveat. Chris Paul can sign with any NBA team that wants him. My guess is that would be everyone.

    And obviously a player who is not wanted by every team would not be able to sign with every team. It's not the CBA that restricts players from going anywhere they want. It's their desire to make more money and their skill level. That's reality. I can't walk up to Bryan Colangelo, ask him where my office is and demand that my starting salary be $1 million. Well, I can, but I'd be kicked out.

    Leave a comment:


  • jimmie
    replied
    GarbageTime wrote: View Post
    first of "just about anywhere" is not everywhere... so immediately you do have a lack of choice. Secondly Chris Paul is not every player, and the vast majority of players are not privileged enough to receive any paycheque they may want from any team they want to play for.

    And no, Free agents don't want to give up to where they please... because thats is giving up choice.
    OK, let me put this another way for you: The choice they've enjoyed over the course of the previous CBA was more choice than they ever deserved. How about that? Again, to relate to the real world: do you have the kind of power over who you work for, and where, that you seem to be advocating that NBA players are entitled to? I sure as hell don't, nor do any of my union brethren.

    And if you want to talk restriction-less choice, how about the NBA teams that never get to "choose" from the full pool of players they want to sign, because some other team is willing/able to offer more money?

    Leave a comment:


  • GarbageTime
    replied
    Hugmenot wrote: View Post
    What I hear you saying is the interest of the one is greater than the interests of the whole. Is this what you're saying?
    I'm not trying to make any philosophical statement here.

    I am simply pointing out that while the League and Stern are claiming they are offering more freedom or choice for players, they are in fact taking it away.

    Side Note: its not hard to point out that 450 individuals giving up money to the benefit of 30 individuals benefit is the majority giving up their interests for a minority..... none of these guys are looking out for the 'whole' (as in the entire NBA). They are all looking out for their individual interests (or interest group).

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  • GarbageTime
    replied
    Tim W. wrote: View Post
    Actually, that's not true. You seem to have confused restriction with incentive, just like the players. Let's say the proposal was accepted and there was no grandfathering of things like sign and trades. Chris Paul could still go just about anywhere he pleases. The only issue would be roster space. But what he can't do is go to any team while still what he wants to make.

    The problem is that free agents don't want to give up anything for the ability to go where they please. And they don't seem to realize, or don't care, that it would devastate a lot of small market teams that already have a tough time trying to compete with the big city teams.
    first of "just about anywhere" is not everywhere... so immediately you do have a lack of choice. Secondly Chris Paul is not every player, and the vast majority of players are not privileged enough to receive any paycheque they may want from any team they want to play for.

    And no, Free agents don't want to give up the ability to go where they please... as thats is giving up choice.

    And just to be clear, this is not a comment on whether the CBA is right or wrong, or the best/worst/average outcome.
    Last edited by GarbageTime; Mon Nov 14, 2011, 07:47 PM.

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  • Bendit
    replied
    Primer on De-certification....by Mike McCann

    This was date stamped Nov. 3 so is without the furor of the last week's events. McCann is a law professor on sports law and the linked piece seems to lay out the pitfalls for either side quite well.

    Linkhttp://sportsillustrated.cnn.com/201...ify/index.html

    Leave a comment:


  • Joey
    replied
    Hugmenot wrote: View Post
    Mr. Owner is free to give All-Star/Starter money to any player he chooses. But unlike baseball, there is no arbitration in basketball and thus Mr Owner is never forced by a third party to give All-Star/Starter money to a player who performs as well or better than an overpaid player.

    If the restrictions and financial penalties are harsh enough, the system will sustain itself despite the ever present bad contracts. Yes some players will be grossly underpaid/overpaid based upon their production but that's a risk whenever two parties agreed to multi-year guaranteed contract.
    Mr. Owner is never forced, No, you are correct. But was Mr. Owner forced to give Joe Johnson a MAX contract?
    Nope. But he did anyway. And you can bet he didn't WANT to.
    The market forced his hand.

    And when your Free-Agent Power Forward comes to you and says "Eddy Curry is making so-much money. I had a better year than him. Give me more than Curry, or I sign elsewhere."

    The market sets the value of contracts. And the value of contracts set the market.

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  • Hugmenot
    replied
    GarbageTime wrote: View Post
    It does not matter if it only effect 1 or 4 or 30 teams. It does not matter if it effects 1 or 5 or 450 players. Less choice is less choice. And it is, without question, NOT more choice.
    What I hear you saying is the interest of the one is greater than the interests of the whole. Is this what you're saying?

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  • Tim W.
    replied
    GarbageTime wrote: View Post
    again not true. Both the salary cap and tax restrictions are limiting a players ability to go where they may 'choose' to go because its limiting and restricting an owners ability/willingness to sign any player within certain criteria.

    If every team had X amount of cap space available, in every given year, and were willing to use it, or every owner gave no regard to the tax, then what you said would be true. But that is not the case, nor will it be the case. The less ability any owner is given, it inevitably results in less choice for the players.

    And I have no sympathy for anyone. None of these owners are hard up or going broke. They all have more money than, likely, everyone I know combined and can live beyond what most of us could even call comfort. The players make more money they need to do a job most would love to do. I don't see how anyone could have any sympathy for anyone in these negotiations.
    Actually, that's not true. You seem to have confused restriction with incentive, just like the players. Let's say the proposal was accepted and there was no grandfathering of things like sign and trades. Chris Paul could still go just about anywhere he pleases. The only issue would be roster space. But what he can't do is go to any team while still what he wants to make.

    The problem is that free agents don't want to give up anything for the ability to go where they please. And they don't seem to realize, or don't care, that it would devastate a lot of small market teams that already have a tough time trying to compete with the big city teams.

    Leave a comment:


  • mcHAPPY
    replied
    So to review the situation, the Players are going the same route that the NFL Players went last summer, using the same attorney – Jeffrey Kessler. Kessler lost this same battle for the NFL Players and will most certainly face the same result with the NBA Players.

    The definition of insanity is doing the same thing over and over while expecting a different result . . .and it appears there is a great deal of insanity on the side of the NBA Players.

    Stay tuned . . .

    Source: HoopsWorld.com


    Take the source with a grain of salt but this appears to be accurate.

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