Commentary

NLRB now holds key to NBA lockout

As the mediation talks fail, a decision on the players' complaint appears to be critical

Originally Published: October 21, 2011
By Lester Munson | ESPN.com

Surface bargaining. System changes. Draconian demands. Yep, it's the language of labor; and as far as we're concerned here in our Courtside Seat, that kind of lingo is a labor of love. Of course, we're talking about the 'L' word again: Lockout. We'll get to some juicy obstruction of justice and misdemeanor battery a little later; but today, we start with another capital letter. We start with …

The X Factor in the Lockout

In a flurry of acrimony and accusation, negotiations between NBA players and owners have collapsed. Even the assistance of a skilled mediator, George Cohen, did not draw the warring factions closer together, and might even have pushed them further apart. But there is still a ray of hope. A federal agency -- an unlikely agency, in that it doesn't have a long history of being effective in sports labor disputes -- has a chance now to make a difference as it is preparing a decision that could bring the lockout to a sudden end.

Officials of the National Labor Relations Board, sources say, appear to be ready to act on a players' union claim that NBA owners are guilty of unfair labor practices in their demands for "draconian demands and changes" and the declaration of a lockout when there was "no impasse in bargaining."

[+] EnlargeEmpty Amway Arena
Gary Bassing/Getty ImagesA looming NLRB ruling just might help open the doors to empty NBA arenas like this one.

With board members appointed by President Obama in control, the NLRB has been leaning toward unions in most disputes. If the board agrees with the players that the owners have been guilty of bad faith in their bargaining and their lockout, the board would ask a federal judge for an injunction that would stop the lockout.

How important is the NLRB action? In most labor disputes, the management side of the dispute (the owners) does not participate in early NLRB skirmishing. In the NBA players' case, however, the owners have submitted considerable evidence to the NLRB in an effort to postpone an action that could destroy their lockout.

The possibility of an imminent decision from the board helps explain why the NBA players haven't followed the lead of players in the NFL, who disclaimed their union and filed antitrust litigation against the owners. The NBA players, it appears, made a decision early in the process that the NLRB would be their home court. If they disclaimed their union, they would be barred from pursuing their grievances in the NLRB and would lose what they clearly see as a source of potential leverage.

(An aside. For what it's worth, the legal nomenclature on "disclaim" and "decertify" has been evolving. "Disclaim" is the quick action with a vote of the members to abandon their rights as a union. It's what the NFL players did at the beginning of their league's lockout, though the word "decertify" was broadly used, including here. "Decertify" is now taken to describe a supervised NLRB election in which the members vote on whether to keep their current union. That's a process that takes months. Courtside Seat is not sure why this redefinition has occurred, but knows it has happened.)

NLRB lawyers and investigators have been analyzing the players' claims since May, when the union filed the first of a series of three increasingly detailed complaints about the owners and their bargaining tactics.

[+] EnlargeGeorge Cohen
Patrick McDermott/Getty ImagesFederal mediator George Cohen had some success in bringing the NFL lockout to an end. The NBA lockout? Not so much. So far, at least.

The key issue in both the NLRB's investigation and in Cohen's mediation attempts is what is now known as "system changes." Both sides have edged closer and closer on money issues; and by now, it is easy to see a compromise on the horizon when the owners are offering 49 percent to 51 percent of basketball related income and the players are demanding 53 percent. If that difference was the only obstacle, training camps would be open.

But the "system changes" are behind this week's long mediation sessions, and may produce a blockbuster decision from the NLRB.

The players insist in their NLRB complaints that from the outset of negotiations for a new collective bargaining agreement in August 2009, the owners have been making "harsh, inflexible, and grossly regressive 'takeaway' demands." What does that mean? It means, if the union is correct, that the owners want to take back from the players major benefits that the players have struggled to achieve in negotiations going back to 1995. These benefits include guaranteed contracts and a relatively soft salary cap, and exceptions to the salary cap that are highly beneficial to players.

The owners not only want changes in these basic structures, the players argue, but they are demanding those changes in "take it or leave it" terms without "appropriate tradeoffs." The players are describing something known in the labor world as "surface bargaining." They are saying that all of the meetings and all of the exchanges of proposals between August 2009 and June 30 of this year (when the contract expired and the lockout began) were sham maneuvers designed only to stall progress until a lockout was possible.

In addition to the charges of bogus bargaining, the players note that the owners "have admitted in negotiations that the lockout will cost them approximately $1.5 billion per year." In a nice bit of understatement, the players say the loss of $1.5 billion is not a "sufficient business reason" for the lockout.

The lockout itself is also a part of the players' claim that the owners' bargaining tactics are "destructive to the collective bargaining process" and violate players' rights under the laws that govern unions and bargaining.

[+] Enlarge1994 Baseball Strike Sign
AP Photo/John BazemoreJust a reminder of what it was like in 1994 during Major League Baseball's work stoppage, until an NLRB ruling helped bring the game back.

It's a clever double-barreled argument from the players. They lay it out this way: The bargaining before the lockout was a sham and a violation of the law, or the bargaining was lawful and the owners declared a lockout when there was no impasse. The players win either way.

If the NLRB concludes that the players are correct in their descriptions of the owners' bargaining, the board will rule in favor of the players. The board would file an action against the NBA and demand that the league cease its bargaining tactics and its lockout. The legal action is called a "10(j)" in reference to the section of labor law that defines it. If you could somehow eavesdrop on a conversation among NBA players right now, it would not be a big surprise to hear them talking about their "10(j)." And it will not be a big surprise if the union's NLRB gambit is successful.

It would be a dramatic setback for commissioner David Stern and the owners. They would argue about it before the board and in federal court, but their lockout would end and the owners would lose the leverage they have tried to establish for more than two years.

An NLRB decision would be the first time the board has acted in a sports dispute since MLB owners locked out baseball players after a players strike eliminated the World Series in 1994. Responding to an NLRB request for an injunction then, then-federal district judge Sonia Sotomayor (now on the U.S. Supreme Court) ruled that the owners were guilty of bad faith bargaining and ended a work stoppage and re-established the primacy of the players' union.

Both the players and the owners will be huffing and puffing for the next few days, accusing each other of all sorts of things. But instead of listening to them, it might be a good idea to keep an eye on the NLRB headquarters in Washington. A decision from the board would change everything. It might be the last and best hope for an NBA season.

To Unsportsmanlike Conduct and Beyond!

The shouting and shoving by Jim Harbaugh and Jim Schwartz last Sunday might have been a bit embarrassing for the NFL, but that little dust-up was a nothingburger in the world of coaching misbehavior. Consider, for example, a couple of recent episodes involving high school football coaches.

Here's one:

Worried about losing a star player under investigation for an assault charge, head coach Scott Anderson of Escambia High School in Pensacola, Fla., decided to intervene.

The investigation began when one of Anderson's players allegedly beat up another player. The victim of the beating was preparing to sign a complaint for assault and battery. But Anderson, 51, called the detective investigating the incident and explained that the filing of a charge would "mess up team chemistry."

So far, so good. It's the kind of call that coaches occasionally make to police departments. Nothing all that unusual.

[+] EnlargeJim Harbaugh, Jim Schwartz
Leon Halip/Getty ImagesThat little set-to between Jim Harbaugh and Jim Schwartz last weekend has nothin' on the misbehavior of a couple of high school coaches.

But then Anderson went one step further. According to police records, he told the detective to tell the victim's family that if they signed the complaint against the star player, the coach "could not guarantee the safety of their child" at future practices and games.

That's called tampering with a witness, and it qualifies as obstruction of justice.

Even then, the coach wasn't done. After the detective and the school principal warned Anderson that he was violating the law with his threats, Anderson persisted. He asked an assistant coach, police records show, to tell the victim that if he signed the complaint, he would never play football for Escambia again.

That was enough to file charges against the assistant coach, Tim Jansky, in addition to the charges against Anderson.

Since the investigation began and culminated in the arrests of Anderson and Jansky on Oct. 4, the Gators have lost three straight, including a 42-0 drubbing in their most recent game.

Here's the other:

On Chicago's South Side, another head coach tried to intervene in the aftermath of an altercation involving one of his players.

When Fenger Academy head coach Cassius Chambers learned that two neighborhood boys had beaten a player and taken his Nike shoes, Chambers decided to retaliate. According to police records, Chambers gathered a group of Titans players and took them to the home of one of the attackers, threatening the 15-year-old boy and his parents and explaining that he could bring 50 players on his next visit if they complained.

Chambers now faces misdemeanor battery charges and has been removed as the team's coach as the Titans enter the city playoffs. The coach's absence, however, doesn't seem to be bothering them. The Titans won their first playoff game Thursday, a 30-20 upset over favored Orr High School.

It's one thing for Harbaugh and Schwartz to jaw back and forth. It's professional football, and it's entertainment. But it's more serious when a coach's misconduct is directed at adolescent boys. That's high school football, and it's supposed to be a learning experience.

Lester Munson, a Chicago lawyer and journalist who reports on investigative and legal issues in the sports industry, is a senior writer for ESPN.com.

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