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Tuesday, November 15, 2011
Untangling Monday's NBA lockout web

By Lester Munson
ESPN.com

Negotiations between NBA owners and players have again broken down, with both sides issuing melodramatic ultimatums and claims on Monday. The owners' commissioner, David Stern, says the players are "hell-bent on destruction." The players counter that they will "disclaim" their rights as union members and file antitrust litigation against the owners. The conflicting positions raise significant legal issues and questions. Here are some of the questions and their answers:

What do the players mean when they say they will "disclaim" their union status and file antitrust litigation?

The word "disclaim" is important. It is a new word in this context since we went through the NFL lockout earlier this year, and it is the first step in a new process that the players hope will expedite their antitrust litigation and give them some negotiating leverage they do not now have. When the NBA players "disclaim" their union rights, it is different from the "decertification" of union rights that the NFL players did when they were locked out by NFL owners.

Stern
NBA commissioner David Stern called the timing of the union's move "irresponsible."

What difference will the change of words and procedures make?

The players have obviously learned from what happened when the NFL players decertified: They were unable to stop the NFL owners' lockout with an injunction. It is not a big surprise that they learned from that experience. The same lawyers who decertified the NFL union are now disclaiming the NBA union -- Jeffrey Kessler and David Feher. But there is some doubt that the disclaimer will eliminate the owners' legal position. The owners will argue that the move is a sham, but the players will have a more persuasive response to that claim. They will tell the judge that the union is no longer bargaining and that the only possible bargaining after disclaimer can be with plaintiffs (players) who file the antitrust lawsuit. Instead of delaying the antitrust case for months, I believe the owners' claim of a sham will be quickly ended in a ruling for the players.

Among the rhetoric being exchanged on Monday was this from David Stern about the union's move to disclaim: "It's just a big charade and it's really irresponsible given the timing of it." Is the commissioner right or wrong?

He is wrong. Stern may wish the players' action was a charade, but it is a serious legal action against an obvious monopoly that is using its total control of the market to take money and benefits from players. Stern and the owners have been worried about this since they began their lockout. The timing shows only that the players patiently negotiated until they realized the owners were asking for too much.

Well-known attorney David Boies has signed on the represent the players. In the NFL dispute, he represented the owners. From the players' side, we heard this on Monday from attorney Jeffrey Kessler: "The fact that the two biggest legal adversaries in the NFL players' dispute over the NFL lockout both agree that the NBA lockout is now illegal and subject to triple damages speaks for itself." How significant is the switching of sides that Boies has done in this case?

There is no doubt that Boies is one of the nation's most formidable advocates. But his work for the players is not as significant as Kessler suggests. Kessler and his team are experienced and knowledgeable and need little help. The owners already had their own powerhouse attorney in place in Paul Clement, another of America's great lawyers. Boies and Clement will become more important as the litigation moves into the higher courts and, possibly, the U.S. Supreme Court.

It all sounds very complicated. Why don't the players simply continue to bargain with the owners?

Stern
David Boies was on the other side of the issues in the NFL lockout. He'll work with the players in the NBA's legal dispute.

It is complicated, but the players have concluded that there is no chance to reach an acceptable bargain with the owners until they, the players, have more leverage. The antitrust lawsuit should give them that leverage. It could lead to an injunction that would stop the lockout. It could lead to discovery of accurate financial data from the owners. And it could lead to billions of dollars of damages for the players if they suffer the loss of a season. With these possible outcomes, many players and many of their agents have been demanding that the union take this step. It is the path that allowed NFL players to achieve free agency and massive increases in salaries and benefits when bargaining collapsed during their negotiations in the early '90s.

Now for the BIG question: Will a disclaimer and the filing of an antitrust lawsuit eliminate the 2011-12 season?

Not necessarily. If the owners, as expected, cannot persuade a judge that the disclaimer is a sham, then the case could move along quickly. The players hope to expedite the case. If the federal court moves quickly and a court issues an injunction that would stop the lockout, there would be serious bargaining and then an agreement.

Who will file the antitrust case, and where will they file it?

The players are now deciding the identities of the players who will lend their names to the lawsuit as plaintiffs, as Tom Brady, Peyton Manning, Drew Brees and seven others did in the NFL lawsuit. The names in the NBA players' suit will be big as well. They are also deciding where to file. The lawsuit can be filed in any market where the NBA plays. One possible alternative is to file it in California, but there is no final decision yet.

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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