Commentary

The NLRB hammer and the NBA lockout

Talks have heated up and might finally lead to an agreement. Here's a reason why.

Originally Published: October 29, 2011
By Lester Munson | ESPN.com

Attempting to beat the buzzer and play an 82-game season, NBA players and owners are working furiously to put together a new collective bargaining agreement. But reaching a deal in time to salvage a complete schedule isn't the only pressure the negotiators face. A decision from the National Labor Relations Board about a players' charge of unfair labor practices by the owners could come at any moment and produce a dramatic change in bargaining leverage. The NLRB action raises significant questions about the status of the negotiations and the 2012 season. Here are some of the questions and their answers:

How much of a factor in the current negotiating process is the impending NLRB ruling about whether the players are correct in their charges that the owners have indulged harsh and illegal bargaining?

It is important. Both commissioner David Stern and union president Derek Fisher make public statements about their attempts to salvage a full season, but both are concerned about the NLRB decision. Recognizing that a ruling might be imminent, the two sides picked up the pace of the negotiating this week. Both sides want to see what they can achieve in bargaining before they face the possibility of losing in the NLRB case. It is similar to the frantic bargaining in the final stages of the NFL lockout as both sides anticipated the possibilities of victory and defeat in the television network litigation involving payments to the owners during the lockout for games that would not be played. In the case of the NFL, the bargaining in the shadow of an important legal decision led to an agreement.

How imminent is the NLRB decision?

The players filed their charges in May. The NLRB staff will not publicly discuss pending cases, but sources say the board completed its investigation several weeks ago and submitted a large quantity of material to NLRB acting general counsel Lafe Solomon. Although a decision could come any day, two factors might be delaying an announcement. The first is Solomon's role in the politically explosive Boeing litigation initiated by Solomon, a complaint that challenges the manufacturer's attempt to move a plant to South Carolina to avoid a union contract in the state of Washington. It is a demanding case that has produced ripples of controversy in the U.S. Congress and in presidential politics. The second is the possibility that Solomon is waiting to see if the players and owners can forge an agreement. He attempted for three months to settle the Boeing issues -- he testified about it at a Congressional committee hearing -- before he finally filed the complaint. If there is an agreement in the NBA, the board can avoid entering into another high-profile controversy.

If it rules at all, will the NLRB rule for the players or for the owners?

For the players to prevail in the NLRB, they must show that the owners were not interested in making an agreement in the early bargaining, were deliberately scheming to initiate their lockout at the earliest possible moment, and are exaggerating their financial plight. The chronology of the early bargaining and the timing of the lockout support the players' position, but the financial condition of NBA teams will be an issue for the NLRB to resolve. If the board concludes that the NBA has used aggressive accounting to skew its reports of profits and losses, the players could prevail.

Under President Obama, the NLRB has leaned to the union side more often than not in labor disputes. That pro-labor posture, together with the financial records gathered in the board investigation could be enough for the players to prevail. Professors and experts contacted by ESPN.com are divided in their predictions on the NLRB action. Prof. Richard Epstein, a nationally known labor law expert at NYU Law School, said, "This is not a situation involving a poor Hispanic in a salt factory. It's a question of whether players will be paid $7 million or $8 million. The board will not be interested." Two other labor law professors who wished to remain anonymous because of their roles in other cases at the NLRB believe the players can win. "The owners have been too harsh and too regressive in their bargaining, and it may have crossed the line into an unfair labor practice," observed one professor from a law school in the Midwest.

How important is the NLRB decision?

Whether the board decides for the players or the owners, it will change the topography of the dispute. If the players prevail, the owners may face a court action that will end their lockout. That would be a dramatic enhancement of the players' leverage in the negotiations. It would also be a vindication of NBPA chief Billy Hunter's decision to avoid the lengthy process of disclaiming union status and pursuing antitrust litigation (as the NFLPA did during the lockout in that league earlier this year) and instead rely on the labor board and its procedures. The most important example of a players' triumph in an NLRB decision came in the Major League Baseball strike of 1994-95 when the players were successful at the NLRB and then obtained a court decision that ended the owners' efforts for a radical restructuring of baseball. The court decision by then-federal district judge Sonia Sotomayor forced to owners to abandon their attacks on free agency, high-low arbitration and the anti-collusion clause in their contract with the players.

If, on the other hand, the board rejects the players' charge, the owners will enjoy a significant increase in the leverage they have created with their lockout. The players would be left at the bargaining table facing the possibility of the loss of a season, likely becoming desperate to make any deal they can.

Are there political issues that might enter into the NLRB decision?

Yes. The board will not admit it, but political pressures are always at play in NLRB actions. Two political factors might be important. The first, as we've mentioned, is the documented union bias from the individuals President Obama has appointed to the board. The second is the current populist fervor apparent in the Occupy Wall Street movement's protests and the nation's increasing antipathy toward wealth. Will the populist movement respond to the possibility of the loss of an NBA season? And if so, how? Would the protesters view both sides as examples of the evil empire of outrageous wealth? Or would they side with the players (the union) against the owners? In all likelihood, the protesters themselves are paying little attention to the NBA dispute, but their actions might have an impact on NLRB staff members who are sensitive to changes to the prevailing winds of politics. If they become important, both political factors are likely to help the players.

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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