Tuesday, November 8, 2011

Understanding the NBA Players' Decertification Strategy

Mike wrote about this topic last week for Sports Illustrated, and I now have a new column up over at the Huffington Post analyzing the complicated web of legal issues raised by the potential decertification of the NBA Players Association. Here's an excerpt. You can find the full column here.

If the players go forward with the decertification petition, is the 2011-2012 season completely lost?
Not necessarily. Although antitrust litigation is painfully slow, expensive, and unpredictable, the mere threat of decertification followed by antitrust litigation might cause the owners to move at the bargaining table. In other words, the owners might be willing to make concessions at the bargaining table to avoid the inherent uncertainty of antitrust litigation. Of course, decertification might have the opposite effect. The owners, wary of setting a precedent of caving at the bargaining table when the players threaten to decertify, might dig in their heels even further and call the players' decertification bluff. This could lead to the ultimate lose-lose situation--the NBA season is cancelled while the NBA owners fight the NBA players in court.
Assuming the mere threat of decertification/litigation is not enough to move the owners, the NBPA could (while the players are waiting for the decertification election) disclaim interest in representing the players. Disclaimer would permit the players to file their antitrust suit immediately. The NBA owners would argue that any such lawsuit must be heard in NY, so the players could either file in NY (unlikely) or file in another jurisdiction and engage in a legal battle to allow them to choose where the case is heard (more likely).
Even if it gets all the way to an actual decertification vote, the season isn't necessarily lost. It is possible--although a lot of things would have to go right for the players for this to occur--that the players are able to vote to decertify and file an antitrust in late December and get a court to issue a temporary restraining order blocking the lockout by early January. That's a bit of a long shot, but it's possible, and the mere possibility of it could be enough to convince enough of the owners to make a deal to avoid that outcome.