Interview — Tulane's Gabe Feldman on NBA lockout, NBPA's legal options, drop-dead date, gradual urgency

Published November 9, 2011 1:23 pm

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Excerpts from an interview with Gabe Feldman, Tulane Law professor and director of the university's sports law program, about the NBA lockout.

Easier for the NBA in the near future to cancel games than agree to the CBA as it stands during recent negotiations:

It's still seen as beneficial in enough owners' eyes to cancel games. I still think they do the cost-benefit analysis and see they're better off by canceling games than agreeing to the deal they could get right now. I think you will continue to see games get canceled until you see that equation shift and the calculation shifts.

A deal in the next month versus a take-it-or-leave-it deal in early January to save the season:

It's certainly possible that we have a repeat of '98-99 and it bleeds into January. I still think it's more likely November, December, because I think they've gotten close enough that a deal that both sides will be happy with is reachable by November, December. If you look back at 98-99, they weren't talking at all, and this is a very different situation. It's possible they could get a deal done in the next two weeks. But I do think that enough of the owners want their negotiating strategy to play out. And that negotiating strategy is exerting pressure on the players by locking them out and forcing them to miss paychecks. That requires the passage of time; that requires the players to actually miss paychecks for them to feel the pressure. On the flipside, the players, really the only leverage they have â€- putting aside the NLRB case and the potential dissolution of the union â€- is proving that they will not cave once they start missing paychecks.

Why settle in the near future when sides have already shown willingness to miss games to prove their points:

Right. To do the cost-benefit analysis, certainly on the owners' side and also just from the union side, they're not just comparing paychecks from this season versus games over the next few years or even in the course of this entire new CBA. It serves as a baseline, so we know what happens when you get a certain percentage as an anchor â€- you have to claw back from that anchor. And the anchor here was 57 percent, and the players want to avoid that being 49 percent or 50 percent, because it makes it more difficult the next time around. That's why it's easier for an owner, because they're more likely to be in place when this new CBA expires. But that's part of the role of the union, though. It's more than just the individual player. That's the power of the union as a collective, is being more powerful than any individual player and any group of players in a given year. That's what made the Baseball Players Association so powerful. And I think the NBPA realizes that. It's about not only fighting this fight but the next fight that comes down the road. And you can't sacrifice the future players for a very short-term benefit. That's a bigger challenge for individual players who are missing paychecks that they likely will never get back. But that's a credit to the PA that they've been able to keep the players unified. It's one thing to keep them unified in October; it's another thing to keep them unified in November and December.

Whether the NBPA can still decertify if it has an NLRB charge pending:

There's a potential bar to decertifying while there's a charge pending with the NLRB. That's up to the NLRB to make that decision; they have the discretion to decide that. But that wouldn't apply necessarily â€- and I know that it's ever happened before â€- to a disclaimer of interest. They doesn't require a formal vote with the National Labor Relations Board. … I don't know that either side would believe that the disclaimer would be barred by the pending proceedings.

Potential for the court system to still affect the lockout:

It's possible. It depends how quickly rules on the hearing on Dec. 2. A best-case scenario for the players is they get the case dismissed. And if they then choose to dissolve their union and bring an antitrust suit, they get to pick the jurisdiction. And that's not an insignificant benefit. But, again, it's liable to come down to timing. Then if the district court is slow to rule, then it may take that out of the equation and there'll just be more uncertainty floating around. And if the players lose the case, then it certainly I think weakens the threat of dissolving the union. It doesn't eliminate it â€- they can still try it in New York; they can still try to do it in some other jurisdiction and fight over where the case gets heard. I just think right now it's a murky situation. I think both the NLRB and the legal action in the Southern District of New York, neither side can feel particularly comfortable about their positions in either of those cases or the strengths and leverage they might get for those cases. So as of now I don't think it's tipping the scale either way. I still don't believe that either side is counting on the NLRB in any way, shape or form to help or hurt them. The unlikely possibility that the NLRB rules in favor of the players and grants the injunction to block the lockout, or seeks the injunction to block the lockout, I just think that's unlikely enough in and of itself. And then the timing of it is obviously unpredictable. People have been claiming they're about to rule now for four months. … People have been saying for a couple weeks after they filed the charge that this is a fairly straightforward charge and it won't take them long to do the investigation. Well, it's taken them a long time. We now see that this is a long process and it's played out. … Dissolving the union, that's still a possibility. As long as they continue to make some progress at the table, I don't see the PA at this point dissolving. But if the NLRB rules against them or we have some more setbacks, you might start to hear some discussions pick up. But I think part of the silence on behalf of the union itself is to the decertification or dissolution strategy is because of this motion to dismiss on Nov. 2. Their legal position is that they do not plan nor have ever â€- they have no current plans to dissolve their union. And they can't on the one hand file with the federal court and say they don't plan to dissolve their union, and then publicly talk about planning to dissolve their union. … It doesn't become a sham. But it becomes a rights case … it becomes something that would be a legitimate subject of a declaratory judgement act. And then they get to fight over the sham. The PA's argument right now is, you can't go to a court and ask them to make an advisory opinion, rule an advisory opinion â€- that's not what courts do. They actually have to have a case in controversy in front of them. You can't say, 'Well, we think at some point in time X might happen, and we want a judge to rule that X is not allowed to happen.' X has to happen before the court to rule. And what the owners have argued is that X â€- which is decertification â€- is about to happen, and therefore the judge can rule. The players are saying, 'No, we never planned for that to happen. The NFL players may have done it and it may have been the same outside lawyers, but we never said anything along those lines.'

What stands out to you about the lockout:

I still think it's going according to script. For two years at least, if not more, both sides have anticipated this. And it just seemed very early on … that both sides were willing and expecting to miss November and December. And there's no think true sense of urgency, or no final urgency. There's certainly some urgency â€- that's why they're meeting for 15 hours a day. And you don't have to wait til the very last second to reach a deal. And I think Major League Baseball is about to show that; they're probably going to get a deal way before [the deadline]. … What's going to actually force the [NBA] to make their final move? … It comes down to that drop-dead date. You don't make your final move until that drop-dead date. We don't know exactly when that date is, just like we didn't know exactly when it was for the NFL. But I think most agree it's not there yet. And in '98-99 they got to that date. I don't know if it's the same date. … It could be that they don't want to play only 50 [games]. We saw what happened and that didn't work and the quality of play was low, and there's too much risk and you give up too much money. You're worried about, obviously, all of these direct economic losses from the networks and the sponsors and the contracts you have and all the player-party contacts and the how the related businesses are all impacted. And you can calculate that up and you can agree and disagree on the size. But then there's also obviously that indirect intangible goodwill that you lose, and you're already starting to see fans being turned off. Are they going to come back? Most of them probably will. But how many won't and how many dollars will be spent elsewhere? There's just so much risk there. And a certain point, you do risk shrinking pie so much that you're better off taking a slightly smaller percentage of the bigger pie. And that's always the analysis. That's always been what it's going to come down to is when you're fighting over less than you're going to gain by making a deal. I don't know exactly when that point is. I think everyone has their own calculation. What makes negotiations so difficult is that calculation is different from owner to owner and from player to player. And the true challenge for David Stern and for Billy Hunter is to keep them unified even though they have those differences within the group. … I do think they come to an agreement before [January].

Brian T. Smith

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