NBA players flipped the script on owners Monday, deciding to file a disclaimer of interest that will effectively disband the union, and an anti-trust lawsuit against the NBA. The only problem? Nobody knows where the hell this is headed.
Unsurprisingly, Ken Berger of CBS Sports has best described the effects of a disclaimer of interest.
The biggest legal benefit to dissolving the union through a disclaimer would be that, once the union was transformed into a trade association, the players could almost immediately file an anti-trust lawsuit against the league — which in theory would open the owners to not only the financial losses of a canceled season, but also anti-trust damages. In all likelihood, the players would file their action in the 9th Circuit in California, where more employee-favorable law exists. Since the league already has pre-emptively sued in the employer-friendly 2nd Circuit in New York, a messy and potentially lengthy jurisdictional battle would then unfold.
And while the disclaimer would be a more expeditious route to antitrust action, it would also be less likely to succeed than a decertification initiated by the players. Courts would be more likely to view a disclaimer as a bargaining tactic, rather than a decision with the true intent to dissolve.
NBPA outside counsel Jeffrey Kessler, who oversaw the NFLPA’s disclaimer of interest, “wants to protect not only players in this negotiation but players’ ability to use this weapon in the future,” Feldman said. “He has to make it appear that this dissolution is a not a sham.”
Pretty much, this is chaos. Nobody knows where these negotiations are headed or specifically how long this process could last. If you’re an NBA fan, today sucks. The only hope is that owners get spooked by the threat of legal action and (finally) decide to negotiate in good faith. But if you listened to David Stern’s interview today, you know that’s only slightly more likely than Jerry Sandusky being named Penn State’s next head coach.
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