Monday, November 14, 2011

NBA Armageddon 2011: Time for the game(s) to end


The 2011-12 National Basketball Association season took a dramatic step backwards Monday with the National Basketball Players Association (NBPA) rejecting the latest offer David Stern presented the NBPA on Thursday.

“We’ve arrived at the conclusion that the collective bargaining process has completely broken down,” Union Executive Director Billy Hunter said.

According to Yahoo Sports: “Union officials served the league with a ‘disclaimer of interest,’ officially informing Stern of their plans to disband and become a trade organization. Jeffrey Kessler, who had acted as the union’s lead negotiator, will represent the players in their litigation with the League, along with David Boies, a famed antitrust attorney. Boies worked for the NFL against the players’ antitrust suit this past summer, putting him on opposite sides of that sport’s labor battle with Kessler.”

“I would hope that, in the face of a disclaiming union, where there’s no hope of collective bargaining, that the owners would reconsider whether, under these circumstances, it makes sense to continue to boycott,” Boies said. “But I have no idea what [the owners’] strategy is.”

The players had agreed to accept a 50-50 Basketball Related Income (BRI) split with the owners, if the owners agreed to systematic issues that could limit player movement. In several media interviews over the weekend, Stern repeatedly suggested the owners were finished negotiating with the NBPA and that the players had the league’s current proposal or they would be forced to deal with an offer that took a dramatic step backwards.

Union officials announced that all 30 team player representatives were at Monday’s meeting and were unanimous in rejecting the owners offer.

“This is the best decision for the players,” Union President Derek Fisher said. “I want to reiterate that point, that a lot of individual players have a lot of things personally at stake in terms of their careers and where they stand. And right now they feel it’s important – we all feel it’s important to all our players, not just the ones in this room, but our entire group – that we not only try to get a deal done for today but for the body of NBA players that will come into this league over the next decade and beyond.”

NBA Commissioner David Stern released the following statement shortly after the NBPA’s announcement:

“At a bargaining session in February 2010, Jeffrey Kessler, counsel for the union, threatened that the players would abandon the collective bargaining process and start an antitrust lawsuit against our teams if they did not get a bargaining resolution that was acceptable to them.

“In anticipation of this day, the NBA filed an unfair labor practice charge before the National Labor Relations Board asserting that, by virtue of its continued threats, the union was not bargaining in good faith. We also began litigation in federal court in anticipation of this same bargaining tactic.

“The NBA has negotiated in good faith throughout the collective bargaining process, but – because our revised bargaining proposal was not to its liking – the union has decided to make good on Mr. Kessler’s threat.

“There will ultimately be a new collective bargaining agreement, but the 2011-12 season is now in jeopardy.”

Andrew Zimbalist, an economics professor at Smith College in Massachusetts, has a real understanding of what has taken place and where the NBA labor talks are. He spoke with Grantland.com offering this: “It means in order to file, there has to be a decertification wherein the players are repudiating the existence of the union as a collective bargaining unit. There are two ways to do a decertification: one is a notice of disclaimer and another is a formal decertification. They’re doing a notice of disclaimer.

“What it means is that the union no longer represents the players, but the players instead have an association. It’s not protected by the National Labor Relations Board, so it doesn’t receive protection from labor laws anymore and because it’s not protected from labor laws, it can’t be protected by antitrust laws.

“Since they obviously feel they can’t get anywhere in collective bargaining, it enables them to use antitrust issues to pursue their goals. Suing the league on antitrust bounds means that they are going to claim the lockout is an illegal conspiracy amongst 30 different teams. Teams are cooperating with each other and that’s illegal under the antitrust laws because they’re independent entities, that’s what they’ll claim.

“And presumably, they’ll claim that the league is trying to force them to accept a series of labor market institutions related to the salary cap that are also restraints of trade and in violation of the antitrust laws.” Zimbalist told ESPN’s Grantland.com

One of the first questions that begs to be asked: Was the NBA ever interested in negotiating a new collective bargaining agreement with the NBPA? On the surface that answers appears – not really. The negotiating process began with the players/owners basketball related income (BRI) split at 57/43 percent in favor of the players. The NBPA first lowered their BRI demands to 53, than 52.2 before agreeing to a 50/50 BRI split last week.

The owners’ most recent offers included a number of contentious clauses, clauses the owners had to know the NBPA would never agree to (the toughness of the luxury tax and the NBDL two-way NBA contract are two of many examples). David Stern made the NBPA an offer they would never be forced to accept.

Stern believes (what else would he say) the league has bargained and negotiated in good faith with the NBPA. Stern is the sports industries preeminent leader of the last 25 years had to believe what has taken place was going to take place. David Stern is far too smart to not have done what he legally had to do and be prepared to deal with any legal ramifications. Stern had to know the NBA labor talks were going to end just the way they have – with litigation and a breakdown in talks.

“f you look at it from a player’s standpoint, collective bargaining has totally failed. So rather than exercise their labor law rights to futility, they’ve decided to free up all players to exert their antitrust rights to triple damages. And we think — not we, the players — think that is the best protection for NBA players going forward.” NBPA lawyer Jeffrey Kessler told NBA.com.

There has been a great deal of discussion comparing were the NBA labor talks are and were the recent National Football League labor talks ended. The NFL lockout began in early March 2011. There was plenty of time to save the 2011 NFL season. The NFLPA did what the NBPA did Monday at the start of the lockout. The NFLPA went right to the courts as soon as the NFL owners began the lockout.

Why didn’t the NBPA do what they did Monday in early July at the start of the lockout? NBPA President Derek Fisher Monday reiterated it’s the owners that are locking out the players – the players want to play basketball, but Fisher didn’t touch on why the NBPA waited as long as they did before following the legal course the NFLPA tried during the NFL lockout.

The NBA lockout is headed for litigation with the 2011-12 season barely hanging on. While the NBPA believe they’ll receive a quick judgment the players need to understand two things – they could lose in court and even if they win the owners are likely to appeal. If the NBA CBA is decided in the courts the 2011-12 NBA season will be lost. The only way any part of the 2011-12 NBA season can be saved is if the two sides try and reach a negotiated settlement.

There is nothing stopping the two sides from trying to reach an agreement while the case is headed and then in litigation. Don’t expect the two sides to try anything for at least a few weeks.

Right now the two sides are like a marriage that has gone bad, the two sides may have at one time liked each other, now they’re being forced to deal with what amounts to irreconcilable differences.

Is the 2011-12 season done – not quite. The 1998-99 NBA season the last time the NBA was forced to deal with a prolonged lockout the two sides reached an agreement on January 7 and managed a 50 game NBA regular season and a full playoffs. The NBA has six weeks to see if they can reach an agreement before the 2011-12 NBA season becomes a lost NBA season.

For Sports Business News this is Howard Bloom

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