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Friday, November 04, 2011
New Column: Why Decertification could doom 2011-12 NBA Season

Here's an excerpt of my new column for SI on the growing desire of certain NBA players -- and their agents -- to decertify the union and sue the NBA on antitrust grounds. Could mean the cancellation of the 2011-12 NBA season:
In terms of its legal arguments, the NBA may be poised to offer more persuasive reasoning for the legality of its lockout than the NFL could muster for its own lockout. One key factor in a legal analysis of whether a lockout should be enjoined is the irreparable harm to the locked out employees. Unlike NFL players, who had nowhere else to play professional football during the lockout and some of whom would have never returned to the NFL had the 2011 season been canceled, some NBA players have already signed lucrative contracts with teams in foreign basketball leagues. The NBA can maintain that if players can sign to play abroad, then a lockout will not cause their professional basketball careers irreparable harm (or at least will cause much less harm than NFL players suffered/would have suffered). In response, the players would likely contend that playing abroad, and living in a foreign country (and possibly relocating one's family there), constitutes a materially different experience than having an NBA career and living in a U.S. city. Plus, many NBA players have not been able to find roster spots abroad.

The NBA also boldly demands that if the union decertifies in a way endorsed by a court, the league should be able to declare all player contracts void and unenforceable. The league insists that because the Uniform Player Contract (signed by every NBA player) is contained in and governed by the collective bargaining agreement, player contracts should become void once the collective bargaining relationship between the league and players ends. In response, the players can argue that the dissolution of a union should not empower an employer to void contracts between individual employees and the employer. If the NBA ultimately prevails in its argument on player contracts, players would collectively stand to lose billions of dollars. It would also throw the league and its franchises in an uncertain state, with every player, save for those drafted in 2011 and who haven't signed contracts, becoming a free agent.
To read the rest, click here


Nice job Mike, this was an interesting read. At the end of the day, though, I'm not sure I agree that decertification of the NBPA would significantly affect the chances that the NBA cancels its entire season. While I agree decertification could give the commissioner a purported basis for canceling the season, I don't think that the owners would elect to cancel the entire season simply because the players decertify. Instead, I believe that decision would (will?) be made on the basis of whether the owners believe they can reach an acceptable deal with the players in time to salvage a season.

I may be in the minority on this, but I don't think that the odds of reaching a deal are necessarily diminished if the players decertify. As the NFL negotiations this summer showed, the players can still reach a deal with ownership even while antitrust litigation is pending, despite the lack of a formal union. I agree that there is some risk that players will split into different factions, but at the end of the day a deal is only going to be reached if it is acceptable to a majority of players, regardless of their unionization status. Sure the existing union leadership might lose a bit of control over things, but I'm not sure that the players at-large would necessarily be worse off.

Along those lines, I'm working on a short paper arguing that in the case of an owner lockout there is little reason for players not to decertify. Right now the NBA players don't have any real leverage in their negotiations with ownership (especially if the NBA's alleged financial losses are accurate, in which case many owners may actually be better off forgoing a season). While the leverage provided by decertification may not be great, it would at least place some pressure upon ownership to reach an agreement, in order to avoid potential treble damages down the road. And it would also provide the possibility (however slim) that the court would issue an injunction to block the lockout. The Eighth Circuit's decision in Brady notwithstanding, I think there is a decent chance that the NBA players could persuade a court that injunctive relief in the case of a lockout is appropriate under the Norris-LaGuardia Act (as the NFL players noted, the 8th Circuit's decision in Brady was arguably at odds with at least 3 other circuits in that respect).

Meanwhile, it seems to me that the downsides of decertification are largely overstated. Most of the protections provided by the union (certification of player-agents, etc.) are of little use to players during a period of time in which they can't work. So aside from losing the potential unifying effect that the union may provide, I don't really see how decertification harms the players in a negotiation (like this one) where the owners appear to have dug in their heels. And I'm not sure that the value of that unifying effect outweighs the leverage players would gain over ownership by decertifying.

In any event, I'd greatly appreciate your (or anyone else's) reactions to my argument.

Blogger Nathaniel Grow -- 11/04/2011 1:53 PM  

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