The NBA chose to file a disclaimer of interest yesterday, dissolving the union, bringing this battle into the court system and yanking bargaining power away from Billy Hunter and Derek Fisher. Theoretically, the process could take years. But the preliminary steps are quick enough that a season could still be salvaged.
Andrew Zimbalist, an economics professor at Smith College, told Grantland he expects that the players filed a disclaimer of interest more as a negotiating tactic than anything else. They just want some leverage against the blood-thirsty owners, Zimbalist thinks.
If he is wrong and the players really plan to follow through with a court proceeding, the process could take years, but there’s no definitive timetable or structure.
There is no set timeline. What will have to happen, unless this pushes the owners to bargain in a way that the players find more acceptable, is it has to go to court. It starts in district court, and before it goes to court there will probably be a number of motions that will attempt to affect the way the district court hears the case.
There are a slew of different things that can be going on there. But there could be a request for injunctions, which could be having to try to get the court to declare that the lockout is illegal and have the players go back to work right away, while the thing is being adjudicated. There are a variety of things. But eventually it’ll go to court, and in district court it could take many, many months before it came to pass. It could take a half a year. And whatever was decided in district court, it would probably be appealed to an appeals court, and, of course, that could be appealed to the Supreme Court.
So, if the legal maneuvering doesn’t result in a different bargaining outcome, then this could be enormously protracted. But my guess of what the players are hoping is that this gambit will force the owners to reevaluate their position and make more concessions. They’re not actually thinking this is going to go all the way through the judicial process.
By filing a disclaimer of interest, Tulane sports law professor Gabriel Feldman told the Orlando Sentinel, the union lost all its bargaining power. If Hunter and Fisher even sit down at a negotiating table with Stern, it could be considered an unfair labor practice. If they wanted to iron out a deal, then reform the union and accept it, that would technically be illegal. Fisher and Hunter are not allowed to meet with Stern to discuss a collective bargaining agreement today, or tomorrow, or next week, until the union has been reformed. Hunter, Fisher and the union’s lawyers, Jeffrey Kessler and Dave Boies, are only allowed to negotiate an antitrust settlement.
That doesn’t necessarily mean the season will be canceled. Of course, it doesn’t take Einstein to realize the likelihood of a canceled season is greater today than it was yesterday morning. Even if the season is salvaged, the schedule would likely be significantly shorter than the 72-game schedule David Stern advocated last week. A prolonged court battle would almost definitely result in zero games this year.
But Feldman believes it’s more likely that the two sides will use the courts to determine leverage. The preliminary court proceedings, Feldman said, “could take place in a manner of weeks.” That would let both sides determine their bargaining power in the new labor scenario, with time to save the season if both sides are (finally) willing to compromise.
A major complaint from players and agents has been that the NBA should have dissolved sooner. If this had been done in the summer, the legal battles could have been fought in time to salvage most of, if not all of, the regular season. Zimbalist didn’t disagree with that sentiment. But he said the union probably considered the disclaimer of interest a last-ditch attempt to gain leverage after it became evident the owners were not going to offer a fair deal.
I think they saw this as a last resort, that they didn’t have any good options now. They thought they could accomplish more in bargaining. They didn’t want to disband the union. Probably the people who worked with the union thought it would have created uncertainty about their employment status.
They decided to take a different route, which was to make an unfair labor practice discharge before the National Labor Relations Board, but the NLRB just sat on it. They didn’t respond one way or the other, and I guess the players felt increasingly like that was not going to result in anything constructive and they were pushed to the wall. They felt like this was as far as the owners were going to go and they were given ultimatums and had no choice. They could either give in and accept a deal they saw as unfair and unacceptable or do this. I think in hindsight it probably would have been prudent for them to decertify earlier, but they chose not to do that.
There’s one major difference between a disclaimer of interest and decertification. Both processes dissolve the union, but a disclaimer of interest dissolves it right away. Decertification would have allowed a 45-60 day period during which the union still functioned and could resume negotiations. There’s no such grace period in a disclaimer of interest. As of yesterday, the NBA players union no longer exists.
It’s possible for the NBA to re-open business, negotiating with individual players rather than an entire union. That’s what Billy Hunter explained in a letter to members of the former union.
“With no labor union in place, it is our sincere hope that the NBA will immediately end its now illegal boycott and finally open the 2011-12 season,” the letter said. “Individual teams are free to negotiate with free agents for your services. If the owners choose to continue their present course of action, it is our view that they subject themselves to significant antitrust liability.”
Unfortunately for anyone hoping basketball would reappear with no union, the NBA would open itself to significant anti-trust liability issues if it opened for business with no collective bargaining agreement in place.
At least one agent told Ken Berger a disclaimer of interest was the last option he would have chosen. That’s likely because of the uncertainty involved in the process. (CBS Sports)
A disclaimer was the one weapon at the union’s disposal that causes the most chaos the fastest, so maybe there is legal genius in that alone. Once the players file their antitrust lawsuit, the league presumably would follow through on its threat to void all player contracts. Technically, the league would be free to start over — with new rules, a new draft, and new ways of assigning players to teams. The players would bargain individually, and they wouldn’t be considered scabs since they are no longer represented by a union.
But a disclaimer isn’t a stronger hand than decertification, and unlike decertification, bargaining talks cannot continue between the league and union. All that can result is a settlement reached by the attorneys — which at some point would take the form of a collective bargaining agreement if a simple majority of players voted to reinstate the union and the owners decided to recognize it. But that eventuality is a long way off, and it would be a moot point if a federal judge rules that the union’s disclaimer tactic is a sham.
How and why a deal didn’t get done to avoid all of this is the biggest sham of all.
Though it’s unclear exactly what the players union wants to accomplish by dissolving, the best guess is that it wants to scare owners into finally negotiating in good faith. The owners have been bullies throughout the whole process. A deal was reasonably close to being agreed upon this past week, but that was after the players had already conceded more than $1 billion, and the owners still refused to budge on some key system issues. By dissolving the union, the players are looking for leverage, they’re looking to strike fear in the owners, they’re looking to show that this fight isn’t going to be one-sided after all. The players were backed into a corner, the owners were pounding on them, and the players decided to drop a bomb rather than accept the beating.
Rationally, the two sides would have found a common ground and agreed long ago. The league is coming off its most popular season ever. Revenues were at an all-time high. There’s a wave of superstars — Duncan, Garnett, Nash, Nowitzki and Bryant among them — riding the crest of their careers, another crop of studs — James, Howard, Wade and Paul, to name a few — who should be playing out their prime, and then there’s Derrick Rose, Kevin Durant and a slew of other young whippersnappers trying to make the league their own. This should be the best of NBA times.
Instead, we are moving the negotiating process to the court room, and nobody really knows what’s next.