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.

“We’re not failing and we’re not succeeding. We’re just … there.” — David Stern, perfectly summarizing the 132-day (so far) NBA lockout in two sentences

The NBA owners and players association spent 12 hours meeting Wednesday, and will meet again Thursday at noon. Despite some very optimistic reports (I’m looking at you, Woj), David Stern, Billy Hunter and Derek Fisher all used sobering tones when addressing the media after Wednesday’s negotiations session.

Yes, that’s what the lockout has reduced my analysis to: judging speech tones during press conferences. That’s all I really could base my judgments on though, because both sides were evasive during the sessions.

David Stern told reporters, “I don’t even want to talk about where we are or our current state of mind,” and “I would not read into this optimism or pessimism.”

Derek Fisher said, “We can’t characterize whether they showed flexibility or not,” but did note, “we can’t say there was significant progress today.”

And best of all, for the seven or eight minutes ESPN aired the two NBA press conferences, the station actually gave us a breather from Joe Paterno coverage.

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.

Adrian Wojnarowski, Yahoo! Sports:

“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.”

Ken Berger, CBS Sports:

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.

Larry Coon, ESPN:

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.

Marc Stein and Chris Broussard, ESPN:

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.

Howard Beck, New York Times:

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.”

 

JaVale McGee has earned a reputation for committing marvelously foolish acts. Normally, those acts are played out on the basketball court, and result in loud, demonstrative misses, turnovers, or goaltendings. But yesterday, McGee transcended boundaries, proving that his propensity for boneheaded mistakes extends to the bargaining table, as well.

The 7-footer told a horde of media members that a few players in yesterday’s union meeting were ready to fold. Not exactly the best tactic when you’re trying to negotiate for the best deal against 30 money-hungry owners. McGee later tweeted that he never said anyone was ready to fold, and that the media “always wanna turn it!” But he forgot that reporters actually record their interviews, and some media members even take videos.

Oh, JaVale. Don’t ever change.

Derek Fisher later denied McGee’s claims of players ready to fold.

“The person that spent the least amount of time in the room can’t make that statement,” Fisher said of McGee, who left the meeting early for unknown reasons. “He’s in no position to make that statement on behalf of the group. It’s obviously fair in negotiations of this magnitude that we’re going to have guys who have different opinions because we have guys in different positions.”

More important things came out of yesterday’s meeting than McGee’s ill-advised negotiating, um, strategy. Billy Hunter told the assembled media he is ready to engage in battle with David Stern if that’s what the union needs.

“Well I think it can only get worse for both of us,” Hunter said in response to a question about the owners’ future offers worsening over time because of the losses. “If somebody is pointing a gun at my head, I’m going to point one back at him. That door doesn’t swing one way. It’s not just the players that are going to suffer if there are games lost. What (Stern) has failed to reveal to you is the amount of economic damage they’re going to suffer as a consequence. He points out the players will lose $170 million every two weeks. The owners will lose the same … amount, coupled with any damage that their franchises sustained as a consequence. The pain is mutual.”

Players association vice president Maurice Evans spoke about the damage that would be done to the NBA if the lockout extends for a full season or beyond, alluding to the concept that the players gain leverage the longer the lockout extends.

“As they want to inflict these self-inflicted wounds, the gash is only going to get bigger, franchise values are going to decimate,” Evans said. “Best-case scenario — when we ran the numbers — 2023 is when they would recover [financially] and get back to where we are with BRI (basketball-related income) if we lost an entire season. So continuing to threaten that it’s a season and that it’s two years is only going to further damage your business. Again, that’s not even speaking for individual owners and what they stand to lose. Not every owner would be able to, again, come out of this lockout. There would be some contraction, potentially, if they want to lock us out for a year or longer.”

And Hunter fired one last bullet at David Stern and the NBA when he brought up contraction, after Fisher called Stern’s latest deadline “arbitrary, with no other purpose than to sway player sentiment.”

“If everybody begins to dig into their respective positions, then I think the league will be decimated. It took us five years to recover from the 1998 lockout and there’s probability that we may never recover [from this lockout],” Hunter told ESPN before Friday’s sit-down with players. “I think there will be some teams that won’t survive. Particularly if the season gets shut down, there will be teams that will not be around next year.”

Hunter singled out the Sacramento Kings as a franchise that may fall victim to “forced contraction.”

The comments were meant to show solidarity and strength, which was all well and good. But next time, Fisher and Hunter might want to think about misplacing McGee’s invitation.

“It got lost in the mail,” ought to work just fine.

No need to put your nightlights on, folks. No need to crack your bedroom door open, keep the hallway lights on, check to make sure nothing scary is in your closet, make sure your parents are nearby, or hide under your covers.

David Stern is making threats again. But they’re emptier than ever.

The big, bad wolf is huffing and puffing and he claims he might just bring the whole NBA down. He says the NBA will cancel games through Christmas if a deal is not reached by Tuesday. He says the season “is really going to potentially escape from us” if a deal is not made by Tuesday, because “we potentially spiral into situations where the worsening offers on both sides make it even harder for the parties to make a deal.”

And his threats don’t just stop at this season. If the lockout extends through the whole season, some players have reportedly testified that Stern and the NBA will hire replacement players for next year.

Yeah, that’s right. Stern’s threatening to bring in Shane Falco and company to replace Lebron James. But don’t let him fool you into thinking that’s a power move. As Chris Sheridan opines, it sounds like Stern’s getting desperate. For the first time since the labor talks began, the players have a little leverage. Commissioner Stern is cracking, folks, and his threats hold very little weight.

Billy Hunter and Derek Fisher are finally playing their cards right. Hell, maybe they had us fooled and they’ve been playing their cards right all along. The NBA owners finally need a deal as badly as the players do.

The NBA is a league run by its stars. Without Lebron James, Kobe Bryant and Dirk Nowitzki, fans don’t pay hundreds of dollars for tickets, they don’t buy jerseys and they don’t buy t-shirts. You don’t see very many people running around with Joey Graham jerseys, or Avery Bradley signature shoes. Bring in Scottie Reynolds, Bo McCaleb and whatever other replacement players the NBA is threatening to sign, and you think anyone would watch? People might pay five or six bucks to watch a host of former college stars compete against each other — say, Ed Cota, Trajan Langdon, Scoonie Penn, Ademola Okulaja and Toby Bailey vs. Kevin Pittsnogle, Salim Stoudamire, Mike Gansey, Gerry McNamara and the O’Bannon brothers. But would anyone shell out a hundred bucks a night, 41 games per season to watch that quality of play? There’s a reason none of those guys made it in the NBA. They just weren’t good enough.

NBA owners are no dummies — okay, maybe some of them are, but even Glen Taylor knows the state of the NBA game is golden. Teams made more revenue last year than ever before, because the league has never had more storylines or stars. Losing a season diminishes or destroys all those good vibrations. Losing a season pisses off the borderline fans and lowers ratings, which in turn decreases sponsorship money, which in turn thins owners pockets. Getting a deal done now is in everyone’s best interests.

Do NBA owners need to drastically modify the league’s economic system? Yes, they do. But the players are already willing to sacrifice at least 4% of their BRI share. They’ve proven they’re also willing to miss games, even a season, if the NBA wants to keep reaching into players pockets. If the players continue to stand their ground and the NBA owners are smart, the owners will acquiesce to the players demands and take a deal similar to the one the players are offering.

The players were always willing to negotiate. The owners haven’t been. Now we’ve reached a point where the players have stood their ground, the owners have realized winning in a bloodbath won’t be so easy after all, and it’s time to get down to business and crack out a deal. That would be the intelligent thing to do, for all parties involved.

Then again, you can’t count on the intelligent thing being done. Not with these guys.

The NBA is relatively close to a collective bargaining deal, according to many reporters in the know. One of those reporters, Chris Sheridan called the remainder of the negotiations “a layup.” Another, Ken Berger noted that missing the first two weeks of games would lose the NBA more money than submitting to the players association demands, and vice versa. But if the two sides are so close, why has the public relations battle remained simmering? Is the continued media bout just a part of negotiations, or something else?

The PR tactics of both sides reek of subtle (or sometimes not-so-subtle) hostility. In his most recent press conference David Stern revealed a discussion held between Stern and the union, in which Stern asked a handful of union representatives whether they would accept a 50-50 split in basketball-related income. The union was reportedly “livid” with Stern for voicing the discussion, which was not an official offer. But Stern’s talks certainly helped his own cause: by revealing the owners’ (real or perceived) willingness to move to a 50-50 split, a move that represents a $1.3 billion change from the owners’ previous stance, while also backing off their desire for a hard cap, Stern put the onus on the players to accept what could be the league’s greatest offer.

Matt Moore of CBS Sports took Stern’s comments exactly the way Stern hoped everyone would.

The players have to take this deal the second that percentage ticks up, and it will this week. The owners, after two years of bullying and absurdly insulting proposals, have gotten serious and offered real proposals which the union can take. They get back a lot of what they want, set the table for further wins in the next CBA, and get the “reset” they’ve been pushing towards. The players and owners both save face. The players just have to know their position and take the win.

That’s what this is. A win. A big ol’ win that represents the players dodging a catastrophic possibility of being forced into a hard cap, a sub-50 BRI percentage, and the loss of any and all flexibility. Theyv’e done it. They’ve held together long enough to get things where they need them to be. They still can get a 50+ cut of the BRI, and have gotten the hard cap off the table.

This situation the players are in? They’re up three points, and the opponent has the ball. The players can foul, lose the points (the drop from 53 where they wanted to stay), and take the win (avoiding complete pillage), or they can try and defend the perimeter. But in this case, the opponent is trotting out a lineup of five Ray Allens.

For the first time, the players are in control. They get to make the decision on a reasonable deal. They can save the season, save the jobs, save the damage to the game, save their own paychecks, their own careers. The owners have moved, finally.

Give the points.

Take the win.

But the players weren’t so impressed by Stern’s (unofficial) offer. In a letter to the union they knew would eventually be published in the press, Derek Fisher and Billy Hunter wrote, “Reducing our share of BRI by seven points to 50 percent – a level we have not received since the early 1990s – is simply not a fair split. We refused to back down.” Fisher and Hunter also said the negotiations are “far from over.”

Then, union executive first vice president Etan Thomas took the hostility to another, entirely less subtle level while writing an open letter on ESPN.com. Thomas wrote a hypothetical piece from the owners’ perspective and took a blowtorch to the owners. Read the entire piece, if you enjoy witty sarcasm, harsh tone and NBA owner bashing.

So why, if the two sides are so close, do we have so much hostility? Why does the public relations battle mean so much, if the lockout is set to end by Monday and then lockout public relations no longer matter? Why don’t the two sides have another meeting set, even though regular season games will be lost starting Monday? Is this just all the regular course of negotiations? Or are the best NBA reporters in the world possibly missing something?

It’s possible, likely even probable, the two sides are simply trying to negotiate and gain leverage. That makes sense. Using the media to help with negotiations isn’t exactly a new concept.

But there’s a resentment in the conversations that, if the two sides are really as close as reporters say, sparks my curiosity.