Thursday, November 3, 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