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NBA Season Hangs in Peril

By Nili Wexler

Players from the National Basketball Association (NBA) disbanded their union last Monday, which allowed them to file two antitrust suits the following day in different jurisdictions. The owners and league officials responded negatively to the move, asserting that "[i]t's a shame that the players have chosen to litigate rather than negotiate." (http://www.nytimes.com/2011/11/16/sports/basketball/nba-players-file-antitrust-suit-against-the-league.html)

Conversely, the players claim that the league acted in bad faith and impeded the negotiation process by issuing an expiring ultimatum. After failing to reach an agreement on a new collective bargaining contract, NBA owners locked out the players on July 1, and the ongoing discord between the two parties has forced games to be canceled through December 15.

This Monday the players consolidated their suits and re-filed a single federal claim in Minnesota. This action should "should permit us to expedite the case," said the player's newly appointed attorney David Boies, who represented the National Football League (NFL) owners in a recent labor dispute with players. (http://www.npr.org/blogs/thetwo-way/2011/11/18/142507617/nba-anti-trust-lawsuit-will-take-months-to-reach-court)

Boies also stated that the players' representatives have had no contact with the league's lawyers, and expressed that "[i]f the league's approach is to ignore the litigation...and hope it goes away...I don't think that's in our interest, I don't think it's in their interest...it's certainly not in the fans' interest." (http://www.nytimes.com/2011/11/22/sports/basketball/nba-players-merge-lawsuits.html)

The league has filed a pre-emptive federal lawsuit in New York to validate its claim that the lockout is legal, and it will likely attempt to move the venue of the players' suit to New York as well. League attorney Rick Bauchman criticized the players' choice of venue by noting, "[t]his is consistent with Mr. Boies' inappropriate shopping for a forum that he can only hope will be friendlier to his baseless legal claims." (http://www.nytimes.com/2011/11/22/sports/basketball/nba-players-merge-lawsuits.html)

The players are suing for treble damages, meaning they are seeking triple the amount they make for the games they miss during the 2011-2012 season. They contend that this lockout will cause irreparable harm, given that professional basketball careers are very short and that even a small break significantly impairs their earning capacity.

The thrust of the players' claim is that the teams are conspiring with one another against the players in contravention of existing antitrust law, and that "the express purpose of Defendants' group boycott and price fixing is to reduce the salaries, terms, benefits and conditions of employment available in the market for players." (http://blogs.wsj.com/dailyfix/2011/11/16/nba-players-must-wait-for-day-in-court/)

Boies acknowledged that the suit could take months, in which case the entire season would be canceled, but expressed hope that the matter would be settled in the near term. As of now, the first case management conference is set for March 9, which would be too late to salvage any part of the season, but the parties can request that the date be changed. Alternatively, they might agree to settle prior to the trial phase.

Labor attorney John Goldman of Herrick Feinstein warned that if the case ultimately proceeds through litigation, it will be a lengthy process. "This case won't be over a year from now...it's probably two years." (http://aol.sportingnews.com/nba/story/2011-11-22/time-might-be-on-the-side-of-nba-players)

Economics professor Andrew Zimbalist, who has worked with the player's association in a previous matter, was interviewed about the players' litigation strategy. He suggested that the players might seek an injunction against the lockout so that they would be able to return to work immediately.

Zimbalist also suggested that the players' suit is more of a bargaining tactic aimed at eliciting concessions than a firm commitment to litigate the issue. As a result, he says, the NBA might argue that the disbanding of the players' union is a "fraudulent decertification" because the union will reconstitute immediately after it achieves its desired outcome.

In a more hopeful tone, Zimbalist suggested that "[m]aybe some of the owners who are more dovish will get together and say 'Enough already. Let's get together and try to get this thing done.' If they do that, maybe we can start playing basketball at some time at the end of December. But it doesn't look great right now." (http://www.grantland.com/blog/the-triangle/post/_/id/9699/an-economics-professor-explains-the-nbpa-and-the-lockout)

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This page contains a single entry from the blog posted on November 22, 2011 8:14 PM.

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