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NBPA has little hope of ending NBA lockout with pending NLRB charge, analysts say

Published November 9, 2011 1:23 pm

This is an archived article that was published on sltrib.com in 2011, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

The NBA and NBA Players Association (NBPA) have filed charges against each other with the National Labor Relations Board (NLRB). Sports labor analysts Gabe Feldman, Gary Roberts and Roger Abrams discuss the NBPA's filing, which could result in the end of the NBA lockout if the NLRB rules in favor of the union and a federal judge issues an injunction to lift the work stoppage.

Gabe Feldman, Tulane law professor and director of the university's sports law program

" ... it is a long shot that the NLRB will make a ruling that will have a significant impact on the result of this labor struggle. Anything is certainly possible, but it is more likely than not that the NLRB will not find that either side bargained in bad faith. And, the fact that the lockout occurred before impasse does not make it an unfair labor practice — the courts are clear that pre-impasse lockouts are permitted as long as they are not in furtherance of an unfair labor practice."Gary Roberts, dean and professor at the Indiana University Law School-Indianapolis

"The [NBPA's] unfair labor practice complaint is extremely weak and lacks legal basis. … Labor law is absolutely 100-percent clear that strikes and lockouts are allowed without [an] impasse being reached. Players could have struck the day the [collective bargaining agreement] expired and the league exercised its right to lock out the players. And the union's argument that the owners somehow failed to bargain in good faith because they made extreme demands also flies in the face of clear labor law. The duty to bargain in good faith does not undermine the right of 'freedom of contract,' a principle that says that either side is entitled to take firm and unbending substantive positions. As long as the owners are willing to keep meeting and talking, they are meeting the duty to bargain in good faith whether or not they make extreme demands and do not budge off of them. So absent some smoking gun in which owners are proven to have been bargaining with no effort to seek an agreement (which I am fairly sure does not exist) the union has little hope of prevailing on this NLRB complaint. … And even if the NLRB made a finding for the union in this matter, I seriously doubt they could get a court to issue a Section 10(j) injunction to end the lockout. I would be positively shocked if it turns out otherwise."Roger Abrams, Richardson professor of law at Northeastern University

"The [NBPA] and NBA charges filed with the [NLRB] — they are not suits or complaints, but are called 'charges' — will NOT determine the outcome of this labor dispute. … I don't think the board will filed merit in either side's charge. This is tough and hard bargaining, accompanied by an employer lockout. There is no legal requirement that there be an impasse before either striking or locking out the other side. Even if the [NLRB] finds merit with the union's charge, it is most unlikely it will proceed to federal court under Section 10(j). It did so in 1995 against MLB because there were unilateral changes made by management. None are involved here. The National Labor Relations Act makes this a permissive move on the part of the Board and it does so rarely. We are in for the long haul until someone calls 'uncle.' "Brian T. SmithTwitter: @tribjazzbsmith@sltrib.comfacebook.com/tribjazz