Discourage litigation. Persuade your neighbors to compromise whenever you can. As a peacemaker the lawyer has superior opportunity of being a good man. There will still be business enough. ~ Abraham Lincoln, Source: www.brainyquote.com.
After two years of negotiations, the NBA team owners issued a take-it-or-it-gets-worse offer that the NB Players Association perceive as an unacceptable “dis” whatever the merits of the offer itself.
Now the players are pursuing the disclaimer of interest strategy (hereafter referred to as “decertification”) to position the group to bring antitrust charges against the owners. The players’ strategy flies in the face of advice from NFL PA executive director DeMaurice Smith who advised against the strategy.
So wrong on so many levels.
I am not a pro basketball fan, so admit to not being up on everything. I like the college game better because it is more team-oriented in approach and execution. Except for a handful of players, the stars in the NCAA are the coaches. NBA fans like the grace and athleticism of individual players. The seem to prefer the offensive prowess of the Lakers to the defensive teamwork of the Detroit Pistons or workmanlike effort of the Dallas Mavericks. The NBA is correct to cater to that. I get the gut feeling, though, that the individualism that serves players well on the court is hurting them in business-labor negotiations.
Like I said, I am a casual observer of pro basketball, but I did follow the NFL-NFL PA conflict closely through the summer. I shake my head at the NBPA’s approach to all this. Here are a few questions.
Shouldn’t the players’ representatives gone to the full membership before decertifying? I have the impression that the NFL PA did a better job than the NBPA to position its strategies to the membership, especially taking the decertification-antitrust route. The NFL PA never asked its members to choose between a lost season and the best deal on the table at the moment. they resolved everything before the season began. Basketball players were not given that choice by their players’ reps. They should have been asked. This could come back to bite the union big time.
Will the antitrust strategy work? There is a popular perception that pro football players “won” by decertifying to get their deal. In fact, the Eight Circuit Court of Appeals dealt legal setbacks to the players’ union to have the lockout declared illegal. It was entirely legal because it was written into the Collective Bargaining Agreement and in U.S. labor law. The Appeals Court ruled that decertification in itself was not enough to bring an antitrust suit. They instructed the District Court to rule within those confines. Presumably, any federal court that receives the players case will follow the Court of Appeals’ ruling, not the Minnesota District Court’s ruling.
Will the owners be intimidated by an antitrust case? The players might win a case if they can prove an illegal collusion by teams that prevented players, as individuals, to find work at the best possible deal. That’s how the job market works for most people. The players have two issues here, although I don’t think they know it. First, the NFL lost two previous antitrust cases and as in result were operating under the terms of a consent decree. Unless the NBA is hampered by similar rulings, the antitrust threat is not the leverage to them that it was to NFL owners. Current NBA players are employed under terms of a collective bargaining agreement. No body has been impaired, as individuals, by collusion between teams yet. The players do not have a case. Very smart lawyers at very high prices will try to make one, but players cannot win until they show how someone suffered in an individual rebuff by all the teams. Second, teams can defeat the strategy by transforming the league to a scheduling and marketing association, um “trade association,” and writing individual contracts for individual players, team by team.
Players cannot possibly want that to happen. All negotiation leverage would be with the owners. Big market teams like Los Angeles, New York (Knicks, not the Nets) and possibly Chicago, Miami and Washington would buy the talent. Mid-market teams, think Charlotte and Cleveland, could structure payroll to want the local market will bear for a better shot to make a profit. Mid-market players would suffer. Fans of those teams would know that they will not keep their stars who would be anxious to move up and out. Guaranteed contracts would disappear (they should anyway) for all but the top stars. The Kobes and Lebrons will do well in this or any system. everybody else suffers. It is no big sacrifice when Kobe Bryant tells fellow players he’s with them whatever they decide.
What happened to the National Labor Relations Board? Congress set up the NLRB as the go to place when workers or bosses suspected bad faith bargaining by the other side. That approach has not been a prominent piece of the media narrative, so I could have missed this. If the players association has not made the NLRB part of their strategy, the Courts may well direct them there before making any kind of ruling. The NFL PA followed parallel courses. As the Eighth Circuit made clear, the Courts do not want to rule on labor issues that should be resolved by negotiation. Did the NBPA miss the hint?
De Smith settled labor negotiations with Roger Goodell before the adverse rulings by the Court. By doing so, he preserved the decertification-antitrust leverage for future use by the NFL PA and by basketball, baseball and hockey unions. Will the NBPA return the favor? See the Lincoln quote above.
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