“There’s one reason and one reason only that the season is in jeopardy and that is because the owners have locked out the players and have maintained that lockout for several months,” said David Boies, the lead attorney that the players hired on Monday after the union filed a disclaimer of interest and dissolved after a unanimous decision from nearly 50 players to reject the NBA’s latest collective bargaining proposal and pursue legal action.
Butler, Detroit guard Ben Gordon, Minnesota forward Anthony Tolliver and No. 2 overall pick Derrick Williams are the plaintiffs in the first suit in Minnesota, where NFL players had some initial success in an antitrust case last summer. A few weeks ago, Butler expressed his displeasure about the players’ negotiations with the NBA in a text message that read: “They’re trying to bully a deal. Every time we’ve come to the table, we have come in good faith, giving something to get a deal done.”
Durant, Anthony, New York veteran Chauncey Billups, free agent forward Leon Powe and San Antonio Spurs first-round pick Kawhi Leonard are on the second suit in California, where Boies said cases generally move more swiftly. Boies added that other lawsuits could follow and eventually become combined.
“It’s a shame that the players have chosen to litigate instead of negotiate,” NBA spokesman Tim Frank said in a statement. “They warned us from the early days of these negotiations that they would sue us if we didn’t satisfy them at the bargaining table and they appear to have followed through on their threats.”
Billy Hunter, the former executive director of the players’ union, said that NBA Commissioner David Stern’s comment last week that the owners were done negotiating with the players forced them to take dramatic action. Stern also issued an ultimatum for the players to accept a deal that would include a 50-50 split of revenues and establish a 72-game season beginning on Dec. 15 or receive an inferior alternative later. Boies said that strengthened the players’ case against the league.
“Was it a mistake to do it? If you’re in a poker game and you run a bluff and the bluff works, you’re a hero. Somebody calls your bluff, you lose. I think the owners overplayed their hand,” Boies said in a news conference at the headquarters of the former players’ union in New York. “Greed is not only a terrible thing, it’s a dangerous thing.”
Boies, a powerful attorney who once challenged Microsoft and represented the NFL owners when NFL players filed an antitrust lawsuit earlier this year, said he doesn’t intend to pursue a preliminary injunction to lift the lockout since that would delay the case.
The players and owners wouldn’t be able to negotiate a collective bargaining agreement, but the lawyers for both sides could reach a settlement, which Boies said would be better than a long, drawn-out court battle, which could wipe out more than one season.
“We would hope that it’s not necessary to go to trial and get huge damages to bring them to a point where they are prepared to abide by the law,” Boies said. “I think it is in everybody’s interest to resolve this promptly.”
Boies said the NBA players were in a better position to win the case than NFL players were. “Unlike the NBA players, it was the NFL players, not the owners that walked out of the negotiations and filed a lawsuit. Here, the litigation was started by the owners,” Boies said, citing the lawsuit the NBA filed in August that claimed that its lockout was legal.
When asked if the players had a chance to win an antitrust case, Gabe Feldman, a Tulane sports law professor, was uncertain. “It’s too hard to tell,” Feldman said by telephone. “Honestly, we’re wading in mostly uncharted territory here. And I think there is an argument to be made that the NBA players’ union has the stronger argument in that they can contend that the collective bargaining has broken down and that the players should therefore be allowed to choose antitrust law over labor law.
“I think there is an argument to be made. Whether the court would buy that argument, that’s a different story,” he said. “The owners, in response, would say, they saw this coming all along. Whether it happened in July or November, it’s still a sham to get leverage at the bargaining table. I can’t predict how a court would decide that and I think it would be difficult for anyone to determine how a court would decide that. From a fan’s perspective, I think that’s the hope, that there is so much risk for both sides, that they would sit down and settle this rather than through litigation.”