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

[LBF]

so wait..... if the players decertify, there's no more player union?

so the interests of millionaires wont be protected by anyone... robbing them of an institution created to protect the underpriveleged working class...

seriously... they can go f$%# themselves...

sadly... i kinda dont even want a season anymore.. i just want to see overpriveleged overwealthy imbeciles suffer.

this is so maniacly evil. Mr. Burns is proud.

[heinz57]

If the courts rule in favour of the owners, I believe you could see a situation where owners cherry pick contracts to void - as there is no CBA protecting players. In essence it would be like any other private job situation.

millionaires getting treated like EVERY ONE ELSE!?

i want to sign that petition RIGHT NOW. i'm all for this decertification business that i don't really understand but it totally stinks of something that will bite the players in the ass, and bring some order to the universe..

if they can retroactively get lindsay lohan some prison time instead of house arrest too... i'll praise jesus.

and by jesus, i mean my hispanic friend who went to jail for stealing CDs

[mcHAPPY]

Should have been done months ago. If the players get a decertification vote, a deal will be negotiated in weeks if not days. No one wants to risk the uncertainty of litigation. A treble damages award would likely bankrupt some owners and would end the NBA as we know it. No one will risk that.

Best news in months...

Unfortunately, a vote cannot even be held until the new year according to Coon.

This process would take until at least after the new year before an election is scheduled. Union attorney Lawrence Katz also believes the NLRB would block any decertification petition until it rules on the earlier charges, which would cause further delays. "In my opinion, they could not process the petition for a vote because of the pending petition," he said.

http://espn.go.com/nba/story/_/page/...strong-message

So the players are going to have to wait until January to get the decertification ball rolling at which point the season is lost. I contend this is the players coming back with a threat to the owners "offers will get worse."

[mcHAPPY]

Brian T. Smith: Problem with leak about NBPA discussing decertification: I've long heard key union members are adamant about not "publicly" discussing decertification; weakens their response to NBA's federal case, bolsters league's assertion that dissolving union has long been planned. Twitter

Seeking decertification could also strengthen the NBA case of the players not negotiating in good faith and cause the players to be ineligible to decertify seeking to use anti-trust laws versus labour laws.

[slaw]

Seeking decertification could also strengthen the NBA case of the players not negotiating in good faith and cause the players to be ineligible to decertify seeking to use anti-trust laws versus labour laws.

Well, except that judge has all but thrown cold water on the NBA case:

“They prefer the uncertainty,” Mishkin said of the union’s effort to get the lawsuit tossed out. “It’s like taking a loaded gun and laying it on the table.”

[JUdge] Gardephe brushed aside Mishkin’s argument, saying posturing is part of negotiations.

“If they’ve put the gun on the table, it’s not clear there are any bullets in it,” the judge said. “The courts discount threats of litigation in the context of collective bargaining.”

Gardephe did not immediately rule, but he questioned Mishkin at length and was skeptical of his arguments, saying at one point that the NBA lawsuit contained a “fair amount of speculation.”

The judge indicated that for all the talk of tangling, the two sides were speaking different languages. Gardephe said reading the written briefs prior to the hearing was like watching “two ships passing in the night.”



Given the concessions the union has made, it's an enormous stretch to conclude they aren't bargaining in good faith. It's pretty tough for me to imagine a judge looking at the facts on the ground and determining that the union is bargaining in bad faith. Seems like all sorts of wishful thinking to me...

[mcHAPPY]

An even better explanation than Larry Coon

What is decertification?

In an effort to protect employees, the National Labor Relations Act put into law a compulsion for employers to collectively bargain with unions. Under the terms of collective bargaining, Scupp says that in time businesses were protected from antitrust laws as long as both sides were involved in collective bargaining, which must be done through a union recognized by the NLRB.

"A rule emerged in the 1980's which says antitrust laws are out of bounds except when there is no longer a CBA between union and management," Scupp says. "The only way around that is to decertify the union. That's the result that came out in the 1990's."

So as long as the NBPA exists, the owners are protected from antitrust litigation. Thus, decertification.

Decertification can be committed to in separate ways. Disclaim of interest is a faster process that involves union leadership essentially scuttling their own ship. However, it is less likely to hold up in court. What the 50 players (and their agents) are seeking is an involuntary decertification, which requires the 30 percent petition, the majority vote, and recognition from the National Labor Relations Board. In doing so, the action would dissolve the union, ending protections for the owners against antitrust suits and paving the way for players to pursue suit against the owners. It is believed that this option represents the only true way to gain leverage against the owners.

In short, Scupp says, "the law gives the right for the players to be and not be a union."


What are the legal challenges to decertification?

Before we get into antitrust considerations, it's important to consider that the league has already challenged any move from the NBPA to decertify. The league filed suit against the NBPA attempting to protect itself from any suit resulting from decertification on the grounds that the NBPA has not bargained in good faith and that any decertification on the part of the players is not legitimate. This is where the term "sham decertification" comes from. This same consideration was brought up but not settled, Scupp says, during the NFL lockout and subsequent court battle with the NFLPA.

"The argument says that the union is decertifying, but it's not a good faith decertification," Scupp says. "It shouldn't be a lightswitch that can be turned on and off. That argument needs to be tested. It wasn't one of the issues that was resolved in the NFL case. The league is arguing that if the players' union decertifies, it would be a sham and the court should not entertain a suit."

The biggest problem with this particular suit, Scupp says, is that it's attempting to block something that hasn't occurred yet. Scupp says that the court is essentially tasked with reading intent towards the NBA's decision to decertify, which it has yet to do. How do you evaluate the intent of a party regarding an action they have not taken yet? That's the challenge to the NBA's suit, as outlined by the NBPA in their reply memorandum.

Should the union elect to decertify involuntarily, as is being proposed by the players, the sham argument becomes more difficult to prove. The sham argument proposes that the union's decertification is merely being used as a tactic towards negotiation. Having the players (at least on surface) detonate their own union without consultation or approval from NBPA leadership would be pretty difficult to challenge as a sham.


So the union decertifies, what happens then?

Why would you give up the protections afforded you by the National Labor Relations Act to collectively bargain by decertifying your own union, essentially putting you out on your own against the power of the NBA?

Because it allows you to sue for antitrust. And it is here we enter the wild, and the one last, desperate hope of the players gaining leverage or an outright victory over the union.

Players would file suit against individual owners claiming that the lockout itself is an antitrust violation, Scupp says. "It's a group boycott, outside the context of collective bargaining, an anti-competitive element, would be their argument," according to Scupp.

The league acts in collusion regarding all matters of the CBA, according to the plan of attack for the players.

"The salary cap, draft rules, etc., if those practices are part of the CBA," Scupp says, "if you're going to restrict free agent movement, and all your teams are going to act together, that's a violation of antitrust, according to the argument."

We're used to hearing about open markets with regards to antitrust. The NBA is the only real "market" that exists in the United States for professional basketball since the ABA-NBA merger. But Scupp says that the suit would be focused more on the elements and practices of the NBA that may constitute an antitrust violation.

"There are certain violations which are what are called per say violations," Scupp says," that are so anti-competitive, you don't have to prove what the market is. If it is not a per say violation, they go with a rule-of-reason analysis. The players would have to prove what the global market is. That's a very good question, what the market is."

Does the professional basketball market include minor leagues like the barely-in-existence current ABA? Does it include Europe? Does it include exhibition games to the degree it can be argued players can make a living off that option?

"Is it a worldwide market for basketball and if so does the NBA have market power?" Scupp asks. "Is the NBA a market inside itself? I don't know, but it's a very good question. If the lawsuit ever progressed to that point, would be important."

Scupp says that other questions that would come into play are what percentage of the market does the NBA control, and are there barriers to that market for the players? It gets trickier the further this process goes.


What happens if the players win an antitrust suit?

The owners go down like Michael Spinks. Scupp says that a possible result would be the court enjoinging the lockout, effectively ending it. The players wouldn't be bound by it. But the monetary result is the real hammer here.

"At the end of the day, if the players could win an antitrust suit, you get treble (triple) damages, the payout at the end would be very significant."

Furthermore, if it looked like the players were going to win such a suit, the league would likely cave and grant the players huge concessions or keep elements the same in the next CBA. It would represent a dramatic win over the owners.


So the decertify-and-antitrust-suit option has to be the best choice for the players, right?

Not at all, according to multiple experts, including Scupp.

Provided they manage to get the required votes for a decertification, and that decertification holds up in court, and the players file suit, and the court hears that suit, and the players win, what's the timeline on that? Years, Scupp says. Years.

"The question is whether the players can sustain through that period," Scupp says. "I'm sure a lot of players can, but I'm also sure a lot of players can't."

Consider who is linked to the 50-player initiative. At least seven All-Stars and probably more were reportedly on the calls. Those players have the means to survive such a monetary drought. Dwyane Wade isn't going under in three years. But the majority of the NBPA is made up of role players and end-of-bench guys, along with rookies and young players who don't have those means.

Additionally, losing the league for multiple years would likely simply mean the end of the NBA. It's unfathomable to think about, but that's the reality. Even once a case is decided and damages set by a court, the appeals process would take further years. This isn't a quick process, it's a painfully slow one, and one that would bleed the league to a flatline on the national spotlight.

Which is why Scupp says decertification and subsequent lawsuits only work as a negotiating tactic, not as a viable strategy towards conflict resolution.

"An antitrust suit would take years to resovle and neither side takes that."

If the suit is merely being filed as a negotiating tactic, wouldn't the court want to avoid participating in such a process? Scupp says it's likely that the court would urge both sides to settle the dispute at the negotiating table, rather than using the courts as a means to an end.


So what's the end game here? What happens next?

The players are playing a dangerous game of chicken right now. Basically, they have no weapons to aim at the league in this negotiation and feel they're backed into a corner with no acceptable solution in sight. So they've pulled out the antitrust hand grenade and are daring to pull the pin. If the players go down, they're taking the owners with them.

The problem is that the likely result of this is a lost season, something that the owners have been hinting at and Billy Hunter has explicitly said some owners are pursuing anyway. It's threatening the NBA with something it's already made clear it's ok with. How do you get someone to back off by punishing them with something they're fine with?

The only chance the NBPA has here of victory or even a marginal survival is that the prospect of leaving the process up to the courts takes it out of the NBA's hands. The owners no longer control the field, despite the many obstacles in the way of such suits. That kind of wild card might be enough to shake the moderates to align with those owners who do want a deal and a season, wrestling control from the hard-line owners who so far have carried the day.

Decertification and antitrust litigation is the nuclear option. Once it starts, stopping it becomes harder and harder. The case won't even be brought to court until after the entire 2011-2012 NBA season would be cancelled, and the process could and would probably take up to another full year to reach an initial resolution, prior to the appeal process. The players would be ending professional basketball in this country to protect themselves from the owners' efforts which have been draconian and brutal.

http://www.cbssports.com/mcc/blogs/e...48484/33103965

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[mcHAPPY]

Well, except that judge has all but thrown cold water on the NBA case:

“They prefer the uncertainty,” Mishkin said of the union’s effort to get the lawsuit tossed out. “It’s like taking a loaded gun and laying it on the table.”

[JUdge] Gardephe brushed aside Mishkin’s argument, saying posturing is part of negotiations.

“If they’ve put the gun on the table, it’s not clear there are any bullets in it,” the judge said. “The courts discount threats of litigation in the context of collective bargaining.”

Gardephe did not immediately rule, but he questioned Mishkin at length and was skeptical of his arguments, saying at one point that the NBA lawsuit contained a “fair amount of speculation.”

The judge indicated that for all the talk of tangling, the two sides were speaking different languages. Gardephe said reading the written briefs prior to the hearing was like watching “two ships passing in the night.”



Given the concessions the union has made, it's an enormous stretch to conclude they aren't bargaining in good faith. It's pretty tough for me to imagine a judge looking at the facts on the ground and determining that the union is bargaining in bad faith. Seems like all sorts of wishful thinking to me...

Who knows.


If I have not already made it clear, I am only expressing my opinions on this. It is not an issue I am willing to even debate because it goes well beyond the scope of my knowledge and experience.


As I've said many times, in the end I only want what is better for the league - it just so happens the owners position fits this desire in my opinion.

[Joey]

The NFL derctified ... and it worked quite nicely for them.

Not sure why all of a sudden they're stupid for considering it.
I personally think they should have done it a LONG time ago. Its the only way they have of getting back some of the leverage.

Once the Union Decertifies, they can sue the NBA for breach of Anti-Trust laws. As the NFL did.

So it certainly would end a stale mate of back-and-forth.

[Joey]

Well, except that judge has all but thrown cold water on the NBA case:

“They prefer the uncertainty,” Mishkin said of the union’s effort to get the lawsuit tossed out. “It’s like taking a loaded gun and laying it on the table.”

[JUdge] Gardephe brushed aside Mishkin’s argument, saying posturing is part of negotiations.

“If they’ve put the gun on the table, it’s not clear there are any bullets in it,” the judge said. “The courts discount threats of litigation in the context of collective bargaining.”
Gardephe did not immediately rule, but he questioned Mishkin at length and was skeptical of his arguments, saying at one point that the NBA lawsuit contained a “fair amount of speculation.”

The judge indicated that for all the talk of tangling, the two sides were speaking different languages. Gardephe said reading the written briefs prior to the hearing was like watching “two ships passing in the night.”



Given the concessions the union has made, it's an enormous stretch to conclude they aren't bargaining in good faith. It's pretty tough for me to imagine a judge looking at the facts on the ground and determining that the union is bargaining in bad faith. Seems like all sorts of wishful thinking to me...

Great post Slaw.

[Joey]

millionaires getting treated like EVERY ONE ELSE!?

i want to sign that petition RIGHT NOW. i'm all for this decertification business that i don't really understand but it totally stinks of something that will bite the players in the ass, and bring some order to the universe..

if they can retroactively get lindsay lohan some prison time instead of house arrest too... i'll praise jesus.

and by jesus, i mean my hispanic friend who went to jail for stealing CDs

Why are you not against the Owners being treated like any other Business Owner in the World?
Why do the Owners get all these Special Rules to Keep their Billions in their pockets, (that they make off of the Players they are trying to short change no less.)


Decertification is the SOLE reason why the NFL Lockout was so short.
The NBA is trying to make it seem like its a terrible option for the Players.. but its not. At all.

[heinz57]

Why are you not against the Owners being treated like any other Business Owner in the World?
Why do the Owners get all these Special Rules to Keep their Billions in their pockets, (that they make off of the Players they are trying to short change no less.)

if you invest billions into something, you have the right to dictate the allocation of the money you made off of it.

if my buddy owns a bar, and he's short on staff so i go help him out and he agrees to pay me $50 per day... i have no right to look in the cash register and turn to him and go "dude, there's hundreds in here.... you need to give more money to your employees"

its his bar... his money went into it... im just a dude he's paying a bit of coin to work there... no matter how good a bartender i am, its his cash roll

i get the $50 we agreed to... thats it.. i dont dictate the business... if he chooses to spend 75% of his revenue on tequila, and nothing else... that's his business

don't get me wrong... im NOT pro-owner... im anti-player.

when employees expect to be treated like shareholders, they need putting in their place.. its douchey for anyone in any situation to think they're a bigger deal than they actually are... they're labour. high paid labour, but still labour.

[mcHAPPY]

The NFL derctified ... and it worked quite nicely for them.

Not sure why all of a sudden they're stupid for considering it.
I personally think they should have done it a LONG time ago. Its the only way they have of getting back some of the leverage.

Once the Union Decertifies, they can sue the NBA for breach of Anti-Trust laws. As the NFL did.

So it certainly would end a stale mate of back-and-forth.

Different circumstances. The NFL had everyone profitable - all players and all owners - and the league already has non-guaranteed deals with a hard cap. Not the case in the NBA.


In the CBSSports.com article above:

The league filed suit against the NBPA attempting to protect itself from any suit resulting from decertification on the grounds that the NBPA has not bargained in good faith and that any decertification on the part of the players is not legitimate. This is where the term "sham decertification" comes from. This same consideration was brought up but not settled, Scupp says, during the NFL lockout and subsequent court battle with the NFLPA.

"The argument says that the union is decertifying, but it's not a good faith decertification," Scupp says. "It shouldn't be a lightswitch that can be turned on and off. That argument needs to be tested. It wasn't one of the issues that was resolved in the NFL case. The league is arguing that if the players' union decertifies, it would be a sham and the court should not entertain a suit."

Issues weren't actually resolved in court with the NFL. If it wasn't for the fact owners were profitable and every game missed was millions and millions of dollars in profits for each of them, what would have happened had they pushed the legal front?

Also from CBSSports.com:

Additionally, losing the league for multiple years would likely simply mean the end of the NBA. It's unfathomable to think about, but that's the reality. Even once a case is decided and damages set by a court, the appeals process would take further years. This isn't a quick process, it's a painfully slow one, and one that would bleed the league to a flatline on the national spotlight.

Which is why Scupp says decertification and subsequent lawsuits only work as a negotiating tactic, not as a viable strategy towards conflict resolution.

"An antitrust suit would take years to resovle and neither side takes that."

If the suit is merely being filed as a negotiating tactic, wouldn't the court want to avoid participating in such a process? Scupp says it's likely that the court would urge both sides to settle the dispute at the negotiating table, rather than using the courts as a means to an end.

In the end the players could decertify only to be told by the courts to settle your dispute at the negotiating table. All that time gone for just to end up where they started at.

[ezz_bee]

I'm not familiar with the NFL situation at all. But from what I can tell de-certification is a B A D idea for the players. To me it seems like some of them are digging in not because of the money but because of some notion of "justice" or "fairness" that they have in their head. I'm not saying that you shouldn't stick to your principles, but when the process is going to take at least two years and possible more, at some point you have to realize that the practical is more important than the principle.

De-certifying seems a little too much like cutting off your nose to spite your face. I really hope that the legal advice the players are getting from their lawyers is realistic about what the process for de-certification entails and the likely timeline it would take.

I do think that de-certifying could result in the end of the NBA.

[mcHAPPY]

Despite the misgivings of some owners, Commissioner David Stern has said publicly that he can garner support for a 50-50 deal and will continue pushing for it. But the longer the negotiations drag on, and the more games are canceled, it is more likely that the hard-line owners will demand reductions.

That group backed an initial proposal that would have cut the players’ share to 37 percent (from 57), eliminated guaranteed contracts, rolled back current salaries and imposed a hard salary cap. The league has since dropped those demands over the objections of those owners.

To say the players have achieved nothing in these negotiations is ludicrous. Look at what a good portion of the owners were initially pushing for.

The union could also be hamstrung in negotiations because of the threat made by 50 disenchanted players to dissolve the union. Those players, who are working with an antitrust lawyer, intend to seek dissolution if the union accepts anything less than 52.5 percent of revenue, or if no deal is produced this weekend.

The union has not responded to requests for comment. An N.B.A. spokesman declined to comment Friday.

This weekend looks to resolve nothing except greater interest in college basketball.


For those interested the pre-game is at 10am Saturday with tip off at 4pm.

A critical weekend for the N.B.A. labor talks will begin Saturday morning with an owners meeting, during which the league’s hard-liners will insist that no more financial concessions be made to players, according to a person briefed on the agenda.

The meeting will begin at 10 a.m. in Manhattan. Six hours later, league officials will meet with the players union in what may be the last chance to resolve the lockout.

Source

[Tim W.]

Decertification is the SOLE reason why the NFL Lockout was so short.
The NBA is trying to make it seem like its a terrible option for the Players.. but its not. At all.

Now, I will admit to knowing nothing about football, but from what I gather, the reason the NFL lockout was so short was due to a) the fact that there are so few games, so missing one game in the NFL is like missing 10 in the NBA and b) because the NFL is simply more profitable than the NBA, so the owners had more reason to settle. In the NBA, for more than half the teams, the lockout is actually financially preferable to playing, since they lose more money by playing than by not playing.

Basically, the NFL owners simply are in a better position that the NBA owners, so there was a lot less reason to continue to lock the players out.

I may be wrong about this, so if there's someone who knows please feel free to correct me.