NBA Commissioner David Stern quickly discredited the players’ attempt to take legal action as a “charade” in an interview with ESPN, calling the move a tragedy that could lead the league into “the nuclear winter.” He was highly critical of the “badly misled” union that he said is bent on self-destruction.
“There will ultimately be a new collective bargaining agreement,” Stern said in a statement issued by the league, “but the 2011-12 season is now in jeopardy.”
Billy Hunter, who was the union’s executive director but will now head the players’ trade association, said Stern’s ultimatum to accept the league’s most recent proposal or receive a worse offer later was “extremely unfair.” Hunter said the union was forced to take this next step after Stern told the players last week that the owners were done negotiating them.
“We’ve arrived at the conclusion that the collective bargaining process has completely broken down,” Hunter said.
Although Stern did not announce the cancellation of any more games, Washington Wizards free agent and union vice president Maurice Evans said the players were aware of the risks of taking this path. Players were scheduled to miss their first paycheck Tuesday.
“We understand the consequences of potentially missing the season; we understand the consequences that players could potentially face if things don’t go our way, but it’s a risk worth taking,” Evans said. “It’s the right move to do.”
By taking their interests to the courts rather than the negotiating table, the NBA players would be employing a strategy similar to that used earlier this year by the NFL players, who filed to disband their union shortly before the owners locked them out in March. That led to a series of court battles over the next several months — with the players challenging the legality of the lockout and the league objecting to the legitimacy of the union’s dissolution.
Those issues ended up not amounting to much, as a new labor agreement was reached in August while legal appeals were still pending.
The significant difference in the NBA’s case is one of timing. While the NFL was forced to cancel only one exhibition game, the NBA already has canceled the first four weeks of its regular season, and Stern has said the league will need 30 days from the time an agreement is reached before games can begin. If that’s the case, the league’s popular Christmas Day schedule appears to be threatened — and if the courts are to provide the resolution, the entire season is in question.
The National Hockey League is the only major North American professional sport to cancel an entire season when it wiped out the 2004-05 campaign, but the NBA has experienced a shortened, 50-game season in 1998-99.
The players opted to dissolve their union after considering the league’s offer, which included a 50-50 division of the league’s nearly $4 billion revenues and would establish a 72-game season beginning Dec. 15. The 50 players in the room, including all-stars Kobe Bryant, Chris Paul, Carmelo Anthony, Rajon Rondo and Russell Westbrook, unanimously rejected the deal and declined to continue negotiations.
Union representatives were upset with the league’s latest offer, believing it was too restrictive on high-spending teams and limited movement for free agents.
“It’s not a deal that we feel will be passed by the general body or accepted by the body,” union President Derek Fisher said, when asked why the proposal wasn’t presented for a vote. “We have the ability to make those decisions, and that was the decision that was made today. . . .
“This is the best decision for players. 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.”
The players have hired attorneys Jeffrey Kessler and David Boies to represent them in a class-action suit against the NBA. Kessler and Boies were on opposite sides of the NFL lawsuit earlier this year. Kessler argued on behalf of the NFL players, while Boies represented the league.
Hunter said Kessler and Boies would file their suit “sometime in the next two days. We think we’ve got a stellar team . . . We think that’s probably the best situation where players can get their due process.”
If they are able to win the lawsuit, the players could also potentially win several billion dollars in damages.
The two sides can continue to negotiate but the union would have to be reconstructed for any collective bargaining agreement to become official.
Stern attacked Kessler in his statement, claiming he threatened to start an antitrust lawsuit in February 2010. Kessler told The Washington Post last week that the owners were treating the players like “plantation workers instead of partners.”
Kessler later apologized, but the animus remains.
“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,” Stern’s statement said.
The NBA filed a preemptive lawsuit in New York district court in August that declared that the lockout does not violate antitrust laws. The suit also threatened to void all contracts if the union disbanded, but Hunter wasn't concerned.
“We don’t think it’s going to have much impact at all,” Hunter said of the NBA’s lawsuit. “We’re convinced, having discussed this matter rather extensively with our counsel, we’re in pretty good shape. Obviously the NBA filed the suit in an attempt to forum-shop. They were trying to anticipate that if this moment came, that they felt they stood a better chance of prevailing if it was in New York as opposed to some other jurisdiction. We just have to live with that.”