Monday, November 14, 2011
Players' new legal leaders speak
In announcing the legal strategy of disclaiming the union, Billy Hunter and Derek Fisher are effectively handing the process of getting NBA players back to work with their outside attorneys Jeffrey Kessler and the newly appointed David Boies.
Boies has been involved in a litany of high-profile cases, most notably representing Al Gore in the historic Gore versus Bush case that decided the presidency. Kessler is the preeminent name in sports labor law.
Hunter says the players have "a stellar team" and Fisher says, "We'll let our legal team really lead the charge."
The pair spoke to a small group of reporters just after Hunter and Fisher's press conference.
Several weeks ago, as reporters were camped out on the sidewalk outside collective bargaining talks, you happened by on your way to dinner. Did you have any idea then that you might be involved?
Boies: I went to dinner! I was not talking to them at all at that point. In fact, I didn't even know they were there.
To the extent you've been involved in sports in the past, it has been on the league side, correct?
Boies: Well, for example, we represented the Yankees against Major League Baseball. So we have represented individual players against the league and leagues against players.
You represented the NFL, correct?
Boies: We represented the NFL against the players.
Can you talk about how different this situation is?
Boies: I don't want to get into a lot of detail, but it's obviously a very different situation. It's a situation in which the collective bargaining process has essentially broken down. For their own purposes, the NBA has chosen to issue an ultimatum. It's our way or no way.
I think that the players tried very hard to bargain collectively, and this is a situation in which the Players Association has never disclaimed or decertified in its history. Some of you are old enough to remember prior CBA negotiations where a lot of players wanted them to and they always refused to do that because they have always believed in the collective bargaining process. Even after the lockout, they continued to collectively bargain.
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.
What are the consequences of that? That's something we're going to go assess. As you can see, I have not been involved in this long enough to have formed a view of what, if anything, is appropriate to do from a legal standpoint. But I do know that just from a practical standpoint, the players tried very hard to make the collective bargaining system work, and they took this step only after it was absolutely clear that collective bargaining had broken down, not as a result of any action they took.
From a timing standpoint, how long can this take?
Boies: The owners could decide to open their doors and hire players today. They don't need a union for that. They could go off and hire people the way most businesses hire people. They could identify a person, they negotiate a salary, and there's absolutely no reason that couldn't happen right now.
This action precludes collective bargaining, but it does not stop negotiating, correct?
Boies: You wouldn't have collective negotiations. Now, I think, the individual teams would have to negotiate with individual players. It's back to the free market.
This trade association and its lawyers could still meet with the NBA and throw out proposals?
Kessler: The class action settlement discussion, just like took place in the NFL, [would happen] without any association's direct involvement. It's the class that would be making any settlement if there was one.
Talks could continue in some form.
Boies: I don't think talks would continue.
If -- and I say if because first of all, we haven't filed a lawsuit -- a lawsuit were filed, but if a lawsuit were filed and if there was an interest in settling that lawsuit, then as Jeffrey 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.
That settlement would be something that would open up the league to play. But you would not have a collective bargaining solution.
Your first "if" supposes a lawsuit might not be filed?
Boies: I'm just saying, we're going to go back, we're going to assess this. Jeffrey probably has got decades more experience in this than I have. And we're going to go back and we're going to talk about what the right approach is. Maybe it's filing a lawsuit. Maybe it's not filing a lawsuit. We've got to figure out what the lawsuit would say if there is going to be a lawsuit. There's a lot that has to be worked out.
Since the decertification didn't work for the NFL, how much better is this disclaimer?
Boies: Well remember, in the NFL case, the disclaimer ... although it was ruled valid by the district court, was never really decided by the court of appeals. The point, too, in the NFL case, was whether or not there could be an injunction. As you heard in there, we are not going to seek an injunction. While we're going to go back and we're going to look at legal options, you heard Billy say that one of the things the players are not going to do is go seek an injunction here.
Boies: Well, my view, and this is one that Jeffrey and I may have a different view on, is that under the Norris-Laguardia Act it's very difficult to get an injunction. That doesn't mean you can't have damages. And in fact, the whole point of the Norris-Laguardia Act was to stop injunctions and force these kinds of disputes into the damage arena.
Even if you could get an injunction -- let's say Jeffrey's wrong and I'm right on this -- 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.
Kessler: If you look at it from a player's standpoint, collective bargaining has totally failed. So rather than exercise their labor law rights to futility, they've decided to free up all players to exert their antitrust rights to triple damages. And we think -- not we, the players -- think that is the best protection for NBA players going forward.
How do you go about deciding who the plaintiffs will be?
Kessler: We're not going to talk about any legal strategies or tactics.
Is there any indication, knowing how the NBA has been bargaining, that this will bring them back [to a more reasonable bargaining position]?
Boies: I have no expectation about that one way or another. I'm involved in this a few hours, OK?
I would hope that in the face of a disclaiming union, where there's no hope of collective bargaining, that the owners would reconsider whether, under these circumstances, it makes sense to continue to boycott. But I have no idea what their strategy is.