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Wednesday, May 4, 2011
Lockout appears more likely than ever

By Larry Coon
Special to ESPN.com

The NBA owners delivered their second collective bargaining proposal to the players' union last week, leaving the players underwhelmed. As July 1 draws closer, the league is bracing for a lockout that now appears more likely than ever.

Unsurprisingly, both sides are keeping a close eye on the NFL labor dispute. The NFL's process is a few months ahead of the NBA's -- the NFL's collective bargaining agreement already has expired and the league has locked out its players -- so it is viewed by many as a potential road map for the NBA.

A recent court ruling has altered the NFL labor landscape and could affect the NBA labor negotiations. On April 25, U.S. District Judge Susan Nelson granted an injunction against the NFL, ending the lockout that began March 11 after the expiration of the previous agreement. The NFL players decertified their union the same day the lockout began, and a group of players filed a lawsuit against the league soon afterward. The NFL challenged the decertification, saying it was a "sham," contending that the players only pretended to decertify as a bargaining tactic and arguing that the union still existed.

The legitimacy of the union decertification is a key issue in the NFL labor struggle. Many league practices, such as the draft and salary restraints, are exempt from federal antitrust laws due to a "non-statutory labor exemption," which protects these practices if they are part of a collective bargaining agreement. This protection extends even after the agreement expires, so long as a "labor relationship" continues to exist between the two sides.

By decertifying its union, the NFL players ended that labor relationship -- converting their union from a labor organization to a trade association. In theory this strips away the labor exemption and exposes the league to an antitrust lawsuit.

With last week's ruling, the court recognized the NFL players' decertification as legitimate. This made the league-imposed lockout invalid, so the judge ordered its end -- at least temporarily. Within hours the league filed a motion asking the judge to put her ruling on hold while the league avails itself of the appeals process.

If the ruling ultimately stands, it sets a clear precedent for the upcoming NBA labor dispute: Decertification trumps a lockout. Freed from the nonstatutory labor exemption, the players will be able to challenge league practices, and the lockout itself, as an antitrust violation.

But the flip side to decertification is that NBA players would give up many of the protections for which they fought, including revenue guarantees, minimum salaries and employee benefits. Every player would be left on his own to negotiate with teams. Every team would be on its own too -- if the owners mutually agreed on rules, those rules would be attacked in court as anticompetitive.

Los Angeles Lakers guard and players union president Derek Fisher doesn't view the situation in terms of the tradeoff between the gains and losses that come with decertification. "There's not a balance," he said. "When you choose to decertify, you give up all the things that have been negotiated and fought for. It's truly only there if we absolutely have to make that choice."

The players have long recognized decertification as an option, but it was never their Plan A. "I think decertification is always one of the strategies and potential opportunities that lie at the very end of this process," Fisher said last September, just prior to the commencement of the 2010-11 NBA season.

The intervening months have not altered his stance. "It's not something that you go in thinking you want to do, or think of it as, 'We'll use this to threaten them,' or to try to get something in return," he said on April 26 following the Lakers' shootaround. "It's really when you have no other options, and you have to turn to the courts to try to get [it] done."

The NFL players decertified their union on the same day their collective bargaining agreement expired, which strongly suggests that they are using decertification as a tactic in their labor dispute. Fisher cautioned that the NBA players do not view decertification in tactical terms. "At least for us -- I can't speak for the NFL -- at least for us, it's not something we view in that light, in terms of tactics, strategy or any of those things," he said.

If there is anything to be learned from watching the NFL's labor process, Fisher says it's simply observing what happens as another sports league ventures into uncharted territory. "It's just observing the process as it unfolds -- once you do make that choice, this is what starts to happen and how it plays out," he said. "How it impacts the players in being able to resume workouts, how it impacts the start of the season, and how it impacts training camp. All these things will play out with the NFL before we're put in a situation with similar choices to make."

While the court's ruling against the NFL may represent a potential victory for NFL and NBA players, the losers in this process may be the fans. A union decertification would put a stop to the labor negotiations (there would be no collective body with which to negotiate) and open the door to an extended legal battle. Should this happen, the playing court would likely be replaced by the court of law for the foreseeable future.

Decertification is more like a nuclear option. Its mere threat could motivate the league to negotiate in earnest, but it also comes with consequences that no one wants to contemplate. Fisher says that unlike their NFL counterparts, the NBA players are trying to get a deal done. "We're really trying to stay focused on the proposals," he said.

"For us, decertification is never something that you want to do -- it's not a strategy like that. It's more a decision you make when your hand is forced and there isn't another option to try to save the season."

Larry Coon is the author of the NBA Salary Cap FAQ. Follow him on Twitter.