Decertification isn’t the only option to dissolve the NBA players association and apply pressure to the owners, according to Ken Berger. There’s also a slim possibility Billy Hunter could step aside as executive director of the union, in a legal maneuver called a disclaimer of interest.
The legal term for this would be a disclaimer of interest, which would only require a letter from Hunter to Stern advising him that the National Basketball Players Association no longer exists as the bargaining unit for the players.
The advantage of this for the players would be that, once the letter is sent, their attorneys would not have to wait 45-60 days for the National Labor Relations Board to authorize an election to formally dissolve the union. With a disclaimer of interest, the players could almost immediately commence an anti-trust lawsuit against the NBA, said Gabe Feldman, director of the Sports Law Center at Tulane University.
“The owners have threatened to, in some ways, end the negotiations if (the players) don’t agree by Wednesday, because 47 percent is a non-starter — we all know that,” Feldman said. “So the owners have given the players an ultimatum with an artificial deadline, and it may force the players to respond with their own ultimatum. But both are destructive of the negotiation process.
“Clearly, what David Stern has said is designed to push the players to make a concession with the threat of essentially ending the negotiations,” Feldman said. “And that’s what the players would be doing by threatening to dissolve the union.” …
The question of how Stern and the owners would respond to the players’ own ultimatum is a risky and unknown game of roulette that union leaders will have to decide if they want to play.
“It could go either way,” Feldman said. “It could cause enough owners to be skittish and want to avoid the risk of anti-trust litigation — because if they lose there, it’s a huge loss. … The other side is that it could cause Stern and the owners to say, ‘We’re not going to let you manipulate labor law by threatening us with an anti-trust suit and we’re going to take a stand.
“The question becomes: Do all of these threats bring the sides closer together,” Feldman said, “or push them further apart?”
In the case of decertification, the NBPA would remain functional during the 45 or so days between a petition for decertification and an actual election. A disclaimer of interest would dissolve the union immediately, although — due to the possibility it is being used strictly as a bargaining tactic — it would have a lesser chance of holding up in court.
Another thought I had, which wasn’t addressed in Berger’s report: If Billy Hunter steps aside, he would probably be forfeiting his job and remaining salary. While he might consider doing that for the sake of the union, this option seems like a slim one that would only be used as a desperate recourse to Stern’s ultimatum. Then again, times might call for a desperate recourse.
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