http://espn.go.com/nba/story/_/id/7230565/union-meet-monday-discuss-nba-offer Deal or No Deal? Decertification would certainly end the season and I agree with D Wade that owners are not giving up anywhere near what players are asked to give up with the only "justification" being the perception that the players "won" the last agreement and owners are determined to settle the score. As much as I love my basketball I'm beginning to hope there are a lot of empty barns this year because that, I believe, would hurt the owners more than the players and it would serve them right.
If I were the players, I'd offer 47% BRI but with incentives to get it up to 57%. At ~$4B BRI and the players already paid with 57% under the current deal, it's hard to see how the owners can't be profitable on the remaining ~$1.8B. That's $60M per team to cover rent, staff salaries, travel, etc.
I'm in the process of reviewing case law on what happens next so that I can make under-informed and overly confident proclamations on the future of labor dispute. I've read a handful of cases, as of now. This makes me just knowledgeable enough to ensure that all of you lose your houses in your next divorce. This somehow, though, has already made me more informed than seemingly all of the journalists covering the dispute, because they are even lazier than I am. If any of you have the interest you should check out the 8th Circuit's decision in the NFL antitrust case from earlier this year. (http://www.ca8.uscourts.gov/opndir/11/07/111898P.pdf) A couple points to note: -- I was under the impression that a sports union abandoning its interest in collective bargaining was a novel occurrence, and I have seen members of the press label the move as unprecedented. Yeah . . . it turns out not so much. There actually is a relatively long lineage of NFL antitrust cases dating back to 1972 and the NFLPA first used the tactic of abandoning its interest in collective bargaining in 1989. So much for reinventing the wheel. -- I've heard a lot of people mention that the NBAPA couldn't immediately decertify or disclaim interest like the NFLPA did because it would potentially constitute bad faith bargaining, sanctionable by the National Labor Relations Board. It turns out that this isn't correct, at least according to prior administrative precedent. See below: Bill Simmons in his podcast today is railing on Billy Hunter for not immediately disclaiming the union's interest in representing the players in collective bargaining. Billy Hunter, according to Simmons, is just trying to save his ass because he knows that if the union accepts the deal on the table he's going to be fired. It looks to me like Simmons is likely right on the money. It seems unconscionable that the players elected not to immediately renounce their collective bargaining rights. They really fucked themselves and the process over. We're likely going to lose the season because they didn't get the lawsuits started earlier. -- The 8th Circuit's opinion in Brady, et al. addressed the remedies available to players, not the overall merits of the players' antitrust case. The 8th Circuit adopted, what appears to me on first glance (see caveats above), to be a tortured, strict textual reading of a provision that was designed to ensure that workers couldn't be forced by a court to return to their employment through a preliminary or permanent injunction, and applied it to owners. The Circuit found that although the players could proceed with their suit and seek damages, a court, according to the labor statue, was not empowered to issue a preliminary or permanent injunction forcing the owners to begin functioning without a collective bargaining agreement. It's important to note that the interpretation adopted by the 8th Circuit (IA, MN, MO, among others) has been rejected by the 1st Circuit (New England, primarily MA) and the 9th Circuit (West Coast, primarily CA). The 8th Circuit's opinion also had a dissenting opinion. All of which is to say, it looks to me on first glance like the Circuit goofed pretty bad. There are a couple take aways. The players who filed their antitrust action in Minnesota are idiots. It is undeniably the worst place in the United States to file their action. I wouldn't be surprised, secondly, if the litigants in the 9th Circuit faired better than the NFL players in the 8th Circuit. Lastly, the 8th Circuit's opinion on the NFL players suit may prove to be a hinderance to a speedy resolution of the NBA players dispute in the 9th Circuit. Even if the players win a preliminary injunction at the district court level the district judge is likely to stay her injunction, and even if the the Ninth Circuit affirms, the Ninth Circuit may stay the preliminary injunction until the Supreme Court decides whether it wants to hear the case. If the 9th Circuit finds in favor of the players on the issue of whether courts are allowed to issue an injunction in this type of dispute, which I think it will, this case will be primed to go to the Supreme Court, which means years of delays. The Supreme Court usually only hears cases with major implications that define industries (check), that involve circuit splits (double-check), and that involve sexy litigants (triple-check). An appeal would be tailor made for Supreme Court review. . . . all of which is bad for the chances of basketball this season. The end.
Great post, SST. My biggest question is how much the NFL litigation has to do with the NBA. They're two different leagues with two different histories of litigation and collective bargaining deals. Do you really think there is precedence set by the NFL cases that apply to the NBA?
You ask a reasonable question. There are a series of cases that make baseball unique. But the factual basis surrounding the NFL and NBA disputes are similar enough to make the legal issues at play essentially exactly the same. Prior NFL cases will form the backdrop for how the NBA suits will be adjudicated.
Really nice, SST. Where do you think this legal process is likely to be by year end? What could happen by then that may significantly change the leverage of one side or the other?
In hindsight I think this was one of the silliest Supreme Court decisions ever -- finding that "local exhibitions of baseball" are not subject the Sherman Antitrust Act. http://en.wikipedia.org/wiki/Federal_Baseball_Club_v._National_League
Maybe. The Supreme Court has decided, if I recall correctly, on three separate occasions that baseball is exempt from antitrust. But there's really no policy reason for the exemption. Back in the old days (early 1900s) when Congress passed a couple of short open-ended laws a session, American judges would create all kinds of exceptions and caveats to laws to make things work. This really isn't the case anymore. There are many decades of direct precedent finding that baseball, and baseball alone is exempt from antitrust, but I still would wager that a district court would ignore the prior case law and go with a plain reading of the statutes. Transplant: I don't see anything happening in an antitrust case by January. I think we all know that litigation is an ungodly slow process if the players aren't seeking a preliminary injunction, which apparently they are not. We're probably looking at around two years to get to the summary judgment motions portion of the case. The only leverage changes that may occur are those from the players losing paychecks and the owners losing revenue streams. The players do wield the power to end basketball as we know it if they were to win their antitrust case. That's a big deal. But in terms of a timeline, it's still a long ways off.
At the turn of the century (not this last one, the one before) professional baseball was still pretty much just a notch above a barnstorming thing. Games drew a couple thousand fans. I suspect that ol' Oliver Wendell and the boys looked at big steel, big oil, big railroads and baseball and said to themselves, "one of these things is not like the others." But yeah, it was silly. In practical terms, I don't know that the exemption helps MLB much anymore. If you're a monopoly that's exempt from anti-trust, you ought to be able to do all kinds of nasty things. However, whenever baseball contemplates doing anything even a little untoward, guys in Congress threaten to pass legislation to remove their exemption and MLB backs off. What good is the exemption if you can't unfairly bludgeon your foes with it?
Thanks, SST. It's an even longer process than I thought. So what it comes down to is that, if we're going to have any games this season, it's going to be as a result of good ol' fashioned collective bargaining, though under another name.
Congress has threatened baseball on a number of occasions that it would remove its antitrust exemption. Most recently during the steroids hearings.
Yeah, one thing I absolutely don't understand is why the attorneys representing the players have said that they will be able to obtain a decision on summary judgment by the time the season would need to be canceled. I currently have a federal case on my docket that has been waiting on a decision on the filings for a half year. We haven't even began discovery. I don't understand how the players expect to complete pleadings motions, complete discovery, file motions on summary judgment, and receive a decision in a couple of months. I would say it's absolutely impossible, but I have to reserve judgment to some extent because I don't know their litigation strategy.
