After months displaying a disheartening inability to compromise and bickering amongst the NBA Players Association and the owners, the league and its players are going to court. The NBA Players Association decided to file a disclaimer of interest, which disbands the union to allow for an anti-trust suit, but differs from decertification. Decertification is a more aggressive legal maneuver, and is a complete dissolution of the labor union, whereas a disclaimer allows the current union leadership to regain their positions after everything is settled.
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The players felt for months that the NBA was not negotiating in good faith, a somewhat fuzzy term that can only be evaluated subjectively, and that that lack of faith made fair negotiating impossible. The owners think the union is bargaining in bad faith by walking away from the negotiations to take the fight to the courts.
But the reality is that, if we take the last collective bargaining agreement as the starting point, the owners have won massive monetary and “system” concessions from the players. At this point, the system, or the rules that govern the length of contracts and, players and agents argue, the freedom of the free agent market, is the primary issue. The owners and players have essentially agreed on the amount of total revenue that will be paid the players as a group each season, but owners want to mitigate their risk when signing a player by shortening contracts and making it more difficult for players to earn as much money by switching to a new team.
Though the number of players and teams affected by such restrictions each year would be relatively small, the owners and players have picked this hill for the negotiations to die on. As a result, big names like LeBron James and David Stern have been supplanted by David Boies, one of the highest profile lawyers in America.
Boies has been portrayed in Recount and will be played by Morgan Freeman (an interesting casting choice; though Boies is white, he gives off the same grandfatherly charm as Freeman) in an upcoming movie about the Proposition 8 struggle in California. More importantly, he also represented the NFL in its legal battle with its own union earlier in 2011. In fact, Boies is returning to the very same state in which he and the NFL defeated the NFL’s union, this time representing the NBA players.
This week, the NBA consolidated its case from California to its other in Minnesota, and Boies seems to have learned a thing since his last go around. Instead of filing for an injunction to force owners to end the lockout, as the NFL players did, Boies is seeking a summary judgment declaring the lockout illegal, thus avoiding the Norris-LaGuardia Act, which prohibits a judge from issuing an injunction in a labor dispute.
But why Minnesota? The NBA players and owners both have plenty to lose from a lost season, but owners maintain control of their teams far longer than the average player stays in the league which means they’ll be better situated to reap the benefits of a good deal long after every player currently in the league retires. Thus, the owners are reportedly less concerned than the players are by the prospect of a season-long shut down. So Boies wants to get things moving quickly, hoping to secure a summary judgment before too much more of the season is chewed up, and Minnesota’s courts are less congested than California’s.
Of course in a big industry legal battle like this, it’s unlikely anything will move with too much haste. The NBA could delay the start of things by moving to have the case transferred from Minnesota to the Southern District of New York, a court that has issued numerous league-friendly rulings over the years.