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The NBA has drawn first blood.
Less than 24 hours after commissioner David Stern said that players' reluctance to compromise during collective bargaining agreement (CBA) negotiations was at the core of the league's ongoing lockout, the NBA filed two separate legal claims Tuesday against the National Basketball Players Association (NBPA): an unfair labor practice charge with the National Labor Relations Board (NLRB) and a lawsuit in federal district court in New York.
"These claims were filed in an effort to eliminate the use of impermissible pressure tactics by the union which are impeding the parties' ability to negotiate a new CBA," said Adam Silver, NBA deputy commissioner and chief operating officer.
The unfair labor practice charge asserts that the NBPA has made numerous threats during CBA negotiations to decertify and file an antitrust lawsuit that would challenge the NBA's legal right to a lockout. The NBPA filed a similar unfair labor practice charge with the NLRB in May.
The NBA's federal lawsuit attempts to establish that the lockout doesn't violate federal antitrust laws. If the NBPA decertifies and the union's dissolution is ruled lawful, the NBA requests that existing player contracts based around the previous CBA instantly become void and unenforceable.
NBA owners locked out players July 1. The sides met Monday for the first official bargaining session since the work stoppage began. The meeting produced little positive movement, though, and the sides are still separated by significant financial and philosophical differences despite two years of negotiations.
Gabe Feldman, Tulane law professor and director of the school's sports law program, said that the NBA's lawsuits represent a preemptive attack against the NBPA and are designed to prolong the lockout while increasing owners' bargaining leverage.
"By moving first, the NBA was able to file the case in a court that has ruled favorably for them in the past on related antitrust issues," Feldman said. "The longer the NBA can keep the lockout in place, the more economic pressure will be felt by the players."
Roger Abrams was even more direct.
"This is another regrettable turn of events which diverts attention away from the bargaining table," said Abrams, Richardson professor of law at Northeastern University.
A unified NBPA has stood its ground throughout talks that have produced little hope that the 2011-12 season will remain fully intact. Executive director Billy Hunter issued a fiery response Tuesday to the NBA's claims, referring to the filings as "litigation tactics" and vowing that the union will push for their complete dismissal.
"We urge the NBA to engage with us at the bargaining table and to use more productively the short time we have left before the 2011-12 season is seriously jeopardized," Hunter said.
The NBPA has long held decertification in its back pocket, and players could still vote to dissolve the union and file an antitrust suit against the league. However, the NBA's federal lawsuit has the potential to be a game-changer. If the NBPA suddenly dissolved and the league's move was backed by the courts, star players such as LeBron James and Kevin Durant could be up for grabs whenever a new season begins since their contracts were formed within the confines of a CBA. The outcome is unlikely. But even the possibility puts pressure on an NBPA that already lacks leverage to return to the bargaining table and make further concessions to owners who are seeking to drastically alter the league's financial and competitive systems.
"Asking that the contracts be voided is a pretty intriguing [development]. That would be a massive change," said Michael McCann, director of the Vermont Sports Law Institute and professor of law.
League owners and players now face two divergent paths during tense CBA negotiations. The sides can attempt to settle their differences in a court system that often takes months and sometimes years to bring about resolutions. Or they can resume talks without legal interference and use a mid-September deadline to save the preseason as an impetus to reach an agreement. NFL owners and players initially choose the former but ultimately settled upon the latter as they ended a 41/2-month lockout July 25 and preserved the entire 2011-12 season. NBA talks are far more contentious and the issues involved are much more complicated, though, and many analysts have long predicted that the league will soon be forced to cancel regular-season games for the first time since a 1998-99 lockout that produced a shortened 50-game season.
"The fact that litigation is occurring was a likely outcome and now it's just coming to light," McCann said. "I don't think the CBA is ultimately going to be resolved by judges and lawyers. As we saw in the NFL, it takes the leaders of the two sides to come down … and make some concessions. The hard thing now is, that's not an easy process."
Where things stand
• The NBA and NBPA have filed unfair labor practice charges against each other with the National Labor Relations Board. There is no timetable for the board's ruling, the decisions are separate and the NLRB is notoriously slow in making announcements.
• The NBA filed a federal lawsuit Tuesday attempting to establish that owners' July 1 lockout of players is not an antitrust violation. If the NBPA decertifies and the move is determined to be lawful, the NBA requests that all existing player contracts instantly become void and unenforceable.
• NBA owners and players have spent two years negotiating a new CBA. The sides are still separated by significant financial and philosophical differences, and both have asserted that they've conceded as much as they're willing to give under the present circumstances. —
Narrow window
Despite the NBA's lawsuits, league owners and players can continue to meet for CBA negotiations. The sides face a deadline if they want to keep training camp and the preseason intact, though. Plans must be in place for a new CBA by mid-September for the NBA to stick to its 2011-12 schedule, and regular-season cancellations could soon follow if talks stagnate or are suspended as the sides battle. —
Legal moves
The NBA is seeking declarations from a federal district court in New York that will support the league's legal right to a lockout. The NBA cites the Norris-LaGuardia Act, which prevents court intervention during labor disputes. The league also refers to section 20 of the Clayton Antitrust Act, which prohibits injunctions during labor cases. The NBA is also requesting that the court rule that the NBPA's decertification is a sham, should the union suddenly decide to dissolve.