Blog Entry

After disclaiming, players on sticky territory

Posted on: November 16, 2011 12:08 pm
By Matt Moore 

The NBPA is dead. Long live the NBPA. But now that the union has disclaimed interest and decided to pursue litigation independently as players and not a union, what does that actually mean? We spoke with labor relations and litigation expert Steve Luckner of Coughlin Duffy to try and make sense of all this dissolving nonsense. 

What did the NBPA need to do to dissolve the union by disclaiming interest versus decertifying? 

In short, Luckner says, say so.  "The primary benefit is speed," Luckner says, "When you have a decertification the players have to vote and it takes place before the NLRB it's a time thing. By disclaiming, they just need to get the player reps to vote to do so, then notify the league." The remnants of the NBPA will also have to file with the Department of Labor and the IRS, but those elements do not have to be completed prior to gaining status as having disclaimed. They said they were disclaiming interest, and there they have. 

Avoiding the 45-day waiting period in-between now and an NLRB rulling which would have been necessary for the players under decertification allows them to pursue litigation faster, which is their primary objective. A fast resolution through the courts or the bargaining table is key for this now-non-collective that doesn't have unlimited funds to survive with the loss of paychecks.

What are the impacts of disclaiming interest?

We touched on the litigation aspect in detail on Tuesday. But Luckner adds that there are some tertiary elements of the dissolution. The organization formerly known as the NBPA no longer has the abilty to regulate agents, and it cannot file grievances on behalf of players.  The assumption with disclaiming is that you intend to do so for as long as you want, but the common thought is that once the lockout ends, the union will reform for precisely these functions. If they were not to do so, they would be unable to file such grievances as their case on behalf of Latrell Sprewell, Ron Artest, or Gilbert Arenas. That's not a power the players want to lose, most likely. notes that the agents angle is interesting because player poaching could become an issue in this new wild, wild west the players find themselves in. There's no governing body ruling over player or agent matters, and as such, anything goes. 

What's the "sham" argument?

 So the NBPA has decertified, washed its hands of itself. It no longer represents the players. And yet Billy Hunter is on the legal team along with David Boies, filing suit on behalf of Carmelo Anthony, Leon Powe, Kevin Durant, and others, all on different teams. Furthermore, every legal expert has spoken with has regarded this move as a negotiating tactic, with Boies even telling reporters including Ken Berger of that the goal is to settle this in negotiation. At that point, most everyone assumes that just like the NFLPA, the NBPA will reform. 

Due to these circumstances, one area the league will attempt to attack the players' litigation is by claiming this is a "sham" disclaimer of interest. In short, they're still acting like a union, they're still planning on being a union, they're just saying they're not a union right now.

There has not been a clear precedent on whether a. intent is a matter to consider when regarding decertification or disclaimer of interest, nor b. whether disclaim of interest/decertification is a "light switch" you can flip on and off. Luckner says it's unlikely the court will argue with the first element. 

"I don't see the court necessarily attacking the players' motivation," Luckner says, but he adds "while holding them to the letter of the law."

Holding them to the letter of the law means the union cannot act as a regulator on behalf of the players. They've washed their hands, so they have to be fine if the players get their hands dirty. One possible ramification of the the disclaimer of interest is that players and the league can negotiate independently. Technically speaking, the players or owners could make a deal with the other side, just to sign themselves. That's obviously not going to happen, on either side. But as paychecks dwindle, Luckner notes that players could get desperate to regain their paychecks or in pursuit of playing in their short career window.  

The trick here becomes when the National Basketball Trade Association, or whatever loose organization that is coordinating the players' legal efforts attempt to corral those players. In that case, if discovered, the court would hold the liable parties in violation of the disclaimer. In short, if you're going to say you're not a union, you can't act like one. The league's response will be to challenge the disclaimer of interest itself, saying it doesn't matter if the union says it's not a union if it's still acting like a union.

These are just a handful of issues facing the players and the league with this course of action. It's messy, and complicated, and issues and rebuttals and motions will stack on top of each other and take months to sort out. Meanwhile more games are canceled and we continue to wait to see if reason enters anywhere into this conversation. 

Since: Feb 1, 2009
Posted on: November 17, 2011 9:18 am

After disclaiming, players on sticky territory

At this point, I'm all for the Owner's blowing up the basis of the previous CBA. One major revision should be that Bird Rights are not tradeable in the last year of a player's deal. This will give the player extra incentive to remain with his current team, as they will be able to pay him the most, but still allow movement. The players aren't the property of the team for life.

For new contracts, I believe the first 2 years out of the 4 should be guaranteed, but the last 2 years should have team options with buyout clauses. That way, a player is guaranteed to make 2 years worth of their money, but are allowed to get bought out if they are performing the last 2 (for a fraction of the yearly salary).

Player's performance is not guaranteed, so contracts shouldn't be. For the competitive balance issue, you either have revenue sharing with no cap, or a very harsh luxury tax. The Lakers can keep winning, it will cost them. And owners will be satisfied with making money.

Problem SOLVED>

Since: Feb 21, 2009
Posted on: November 16, 2011 10:17 pm

After disclaiming, players on sticky territory

If the NBA can't decide on an agreement then they should cancel the season until they reach an agreement. Everyone that I know is sick and tired of the NBA to make a decision to cancel the season or not. Like I said before instead of cancelling a couple games at a time from each each team just cancel the whole thing until you reach an agreement.

Since: Dec 5, 2006
Posted on: November 16, 2011 10:08 pm

After disclaiming, players on sticky territory

Thanks, Matt, for a good explanation of a complicated process. The first issue that the players will have to address is: who pays the lawyers? In an anti-trust case (real and not sham) there are triple damages and the attorneys get a cut of the settlement - usually 35-40% of the total. In this case that would be billions. That is real money to Jeffrey Kessler, racist or not. He does have an apparent conflict of interest in advising the players to take this action because he can gain so much.

In  addition the conflict of interest seems to be with the agents. Reportedly, the most powerful agents are the folks that got the signatures to decertify. So now those same agents are free of restraint in poaching other players. They are also reportedly attempting to gain control over the union and likely to replace Billy Hunter with someone they can manipulate better. So they know that the players lose more in this action while they see themselves as winners.

Since: Oct 16, 2011
Posted on: November 16, 2011 6:39 pm

After disclaiming, players on sticky territory

The lawyers and legal staff for the nbpa is loving this lockout with all the money they will be making at the players expense, how could they not even bring the 50 50 split to a vote? Sounds like a big scam to me.

Since: Sep 20, 2006
Posted on: November 16, 2011 3:22 pm

After disclaiming, players on sticky territory

....meanwhile, the "legal team" of Hunter, Boies, Kessler and 45 underlings are charging by the hour chasing this legal road to nowhere, and the former NBPA "Trade Association" owes them their fees....without drawing a check themselves.

The NBPA didn't get an opportunity for a majority vote to go down this path, or wether or not to accept the NBA's 50:50 proposal before Hunter and Associates refused the, Hunter effectively insured he and his "legal staff" are the ONLY people making money during this quagmire.

That may PROVE they NEVER really had a union, not one that represented the majority anyway, but...

....ever heard of "Conflict of Interest" ?  

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