It’s November, the month the NBA season normally begins, so it’s naturally time for Paul Pierce and Derek Fisher compete. Normally, Pierce would be scoring buckets and Fisher would be annoyingly chasing Ray Allen around screens. But this is the NBA lockout, so Fisher is attempting to lead the players association in negotiations with the owners while Pierce, unhappy with the path of negotiations, is leading a charge to decertify the union.
The owners and players association are scheduled to meet again Saturday. If the negotiations follow their normal sequence, the two sides will meet for three consecutive days. They will express serious optimism for the first two days of negotiations, but the third will end when one side walks out on the other, Stern cancels another slate of games, and the latest he-said, she-said accusations occur.
Allow me to turn this over to the world’s finest reporters.
“As many as 50 disgruntled NBA players – including several All-Stars – participated in a clandestine conference call with a top antitrust attorney on Thursday to discuss the process of decertifying the Players Association, league sources told Yahoo! Sports.
Angry with the concessions already made to the owners and fearful of worse ones coming with the completion of a new collective bargaining agreement, the players could push for a scenario that throws negotiations into chaos and could eventually lead to the loss of the 2011-12 season.Paul Pierce played a prominent role on both calls, leading the charge on decertification, sources said. Participants in Thursday’s call included Dwyane Wade, Jason Kidd, Blake Griffin, Al Horford, Tyson Chandler, Spencer Hawes and DeAndre Jordan, sources said.
Said one player on the calls: “If nothing else, this takes us off our heels.”
If put to a vote, the consensus is that a majority of players would accept a 50-50 deal as a lesser of two evils when compared to the losses they would incur from losing the entire season. Amid all the other agendas and damage control flying around Thursday, that’s what makes a potential rogue decertification effort by frustrated players so fascinating — and potentially apocalyptic when it comes to the chances of salvaging a deal, and the season.
To dissolve the union through decertification — as opposed to a disclaimer of interest, in which the union would voluntarily cease representing the players — a vote of 30 percent of union membership would be required to start the ball rolling. If that hurdle were cleared, a vote of 50 percent plus one of the membership would be required to make it official.
If decertification were achieved, the players would then sue the NBA for antitrust violations in federal court, a process that would take months to lead to further negotiations — and potentially years to reach a final conclusion, according to legal sources. The league already has threatened in a federal lawsuit filed in August to void all existing player contracts if the union dissolved.
If the players decertified, they would be legally barred from reforming the union for one year — unless the owners decided to recognize the union again at some point prior to that in order to achieve a collective bargaining agreement.
In a word, this would be chaos. This is where we are in a lockout that has gotten so messy, so fast that it is impossible to predict what cataclysmic events might unfold next.
By decertifying, the players would be throwing a counterpunch after being on the ropes for many months. They already have conceded 4.5 percent of league revenues — moving from 57 percent in the last agreement to a proposed 52.5 percent — along with accepting many system changes that favor the owners. Meanwhile, the owners’ hard-line stance has hardly swayed in the two-plus years the sides have negotiated.
The mere threat of decertification would provide the players with much-needed leverage in the labor dispute. Anticipating such a move, the league filed a federal lawsuit, calling it an “impermissible pressure tactic,” and saying it has had a “direct, immediate and harmful” effect on the negotiations. The suit seeks a declaration from the court that the lockout does not violate antitrust laws in the event the union decertifies.
A hearing took place this week in Manhattan, N.Y., in which the union asked the judge to dismiss the suit. The judge has asked for additional briefs from both parties before rendering a decision.
Decertification owes its power to the uneasy truce between labor laws and antitrust laws. The antitrust laws prevent employers from banding together to restrain competition. For example, if all the banks in a city agreed that they would not pay their tellers more than $30,000 per year, it would almost certainly be illegal case of “price fixing.” Likewise, if the banks laid off all their tellers and refused to rehire them unless they agreed to take a pay cut to $30,000, it would almost certainly be an illegal “group boycott.” These types of agreements — which restrain competition — are addressed by the antitrust laws.
However, collective bargaining encourages the very type of behavior that the antitrust laws make illegal. To resolve this inherent conflict, there is something called the “non-statutory labor exemption,” which shields collective bargaining agreements from attack under antitrust law. This protection extends even after the agreement expires — so long as a bargaining relationship continues to exist.
Here’s the key to the whole process: This bargaining relationship continues to exist as long as the union is in place. If the players dissolve the union, the bargaining relationship dissolves with it. Without the bargaining relationship, the league is no longer shielded from antitrust laws.
Sources told ESPN.com that other participants on Thursday’s call included Russell Westbrook, James Posey and JJ Redick, with Grant Hill featuring prominently in Tuesday’s call. Some of Thursday participants named by Yahoo! Sports on its web site were Blake Griffin, Al Horford, Tyson Chandler, Jason Kidd, Spencer Hawes and DeAndre Jordan.
Although it was not immediately clear which players or agents arranged both calls, one source close to the process described them as “player-driven” and “player-centric.”
Sources said that Players Association executive director Billy Hunter was aware that at least one of the calls had taken place this week and he is neither anxious nor alarmed by a movement that would appear to deal yet another significant blow to the level of unity on the players’ side. Numerous agents and an increasing number of players have privately questioned why Hunter didn’t give stronger consideration to decertification in July — especially since Hunter has said on numerous occasions he anticipated the ensuing hard-line negotiating stance from the owners for “years.” But Hunter has countered for months that decertification is in the back of his mind as a last resort.
The two conference calls, sources said, represent the first formal step toward a decertification vote if this weekend’s negotiations with NBA owners — just over a week after talks collapsed last Friday — don’t bring the sides any closer to a deal.
The New York Times reported on its website that the group of dissatisfied players, frustrated with both the pace of talks and the many concessions made by the union to this point, intend to push for the dissolution of their union if a new round of labor negotiations fails this weekend — or if the talks generate what is deemed to be an undesirable deal.
The conference calls, according to one source’s estimate to ESPN.com, have mobilized close to 100 players either in favor or giving strong consideration to signing a petition to request a formal decertification vote. The rules in place dictate that 30 percent of the union — roughly 130 players — sign a petition to request a vote. The case would then be taken to the National Labor Relations Board, which would have an estimated 45 days to decide on whether such a vote should be held.
During those 45 days, Hunter and union president Derek Fisher can continue to negotiate with NBA commissioner David Stern and the league’s owners. The belief among many agents, sources said, is that a deal with the league would be struck during that 45-day window, based on the idea that decertification — while by no means a guaranteed successful strategy for the players — could create sufficient uncertainty and legal threat to convince the owners to get a deal done before it gets to that point.
The 50-player faction is essentially demanding that the union make no more concessions. That means holding firm for a 52.5 percent share of league revenue — as the union has done so far — and rejecting any new restrictions on contracts and free agency.
If the union compromises too far in either area, it could trigger the decertification drive. The mere threat could handcuff union officials at the bargaining table. Or, in theory, it could motivate the owners to compromise to avoid legal purgatory.
If the union decertifies, its leadership would effectively be dismissed, giving the league no one to negotiate with, and no immediate possibility for a new collective bargaining agreement.
“In terms of long-term or even short-term stability of the league, it’s obviously a huge setback if they go through with it,” Feldman said. “And that’s a big if.”
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