NOTE: THIS POST HAS BEEN BUMPED TO TOP. UPDATES POSTING REGULARLY.
The executive board and player representatives of the National Basketball Players Association met on Monday morning in New York City to discuss the latest collective bargaining agreement proposal from the NBA. Following the meeting, NBPA executive director Billy Hunter announced that the NBPA had rejected the proposal and was in the process of filing a disclaimer of interest to disband the union to set up an antitrust lawsuit against the NBA. NBPA president Derek Fisher reiterated those statements.
In a television interview, NBA commissioner David Stern replied to the move, saying that the league had prepared for the disclaimer of interest and that it was a poorly-timed negotiating tactic that would wind up costing the players millions in salary.
While talks between the two sides can continue, both Hunter and Stern said that the move increases the likelihood that the entire 2011-2012 season could be lost.
Hunter said that there is a "high probability" that there will be no season.
"We're about to go into the nuclear winter of the NBA," Stern said.
Stern released the following statement on Monday afternoon.
"At a bargaining session in February 2010, Jeffrey Kessler, counsel for the union, threatened that the players would abandon the collective bargaining process and start an antitrust lawsuit against our teams if they did not get a bargaining resolution that was acceptable to them.
"In anticipation of this day, the NBA filed an unfair labor practice charge before the National Labor Relations Board asserting that, by virtue of its continued threats, the union was not bargaining in good faith. We also began a litigation in federal court in anticipation of this same bargaining tactic.
"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.
"There will ultimately be a new collective bargaining agreement, but the 2011-12 season is now in jeopardy."
Henry Abbott of TrueHoop.com caught up with the NBPA's new legal representatives, Jeffrey Kessler and David Boies, who explain how talks between the two sides could continue.
Boies: If, and I say if -- because first of all, we haven't filed a lawsuit -- a lawsuit were filed, but if a lawsuit were filed, and if there was an interest in settling that lawsuit, then as Jeffrey says, what would happen is the lawyers for the players would meet the lawyers for the owners and we would try to come up with some kind of settlement.
That settlement would be something that would open up the league to play. But you would not have a collective bargaining solution.
Your first "if" supposes a lawsuit might not be filed?
Boies: I'm just saying, we're going to go back, we're going to assess this. Jeffrey probably has got decades more experience in this than I have. And we're going to go back and we're going to talk about what the right approach is. Maybe it's filing a lawsuit. Maybe it's not filing a lawsuit. We've got to figure out what the lawsuit would say if there is going to be a lawsuit. There's a lot that has to be worked out.
Zach Lowe of SI.com writes...
The smart money remains on the two sides settling in some form before January, the point at which the season would be lost. "Today is Nov. 14," Hunter told a small group of reporters after the meeting. "That is ample time for us to save the season." But Feldman warns that the timetable just got longer. The two sides must exchange court papers, argue before a judge, reach a settlement, re-form the union and sign a new CBA. The season isn't dead, but it is in far more danger than it was 24 hours ago.
Adrian Wojnarowski of Yahoo! Sports has his take here...
Union officials served the league with a "disclaimer of interest," officially informing Stern of their plans to disband and become a trade organization. Jeffrey Kessler, who had acted as the union's lead negotiator, will represent the players in their litigation with the league, along with David Boies, a famed antitrust attorney. Boies worked for the NFL against the players' antitrust suit this past summer, putting him on opposite sides of that sport's labor battle with Kessler.
"I would hope that, in the face of a disclaiming union, where there's no hope of collective bargaining, that the owners would reconsider whether, under these circumstances, it makes sense to continue to boycott," Boies said. "But I have no idea what [the owners'] strategy is."
Chris Sheridan of SheridanHoops.com writes...
The new man in charge is high-powered attorney David Boies, who represented NFL owners defending themselves against a decertification movement last summer and whose most famous case, Bush v. Gore, ended in a loss (he represented Al Gore in the controversial 2000 U.S. presidential election).
More than 50 players met for more than three hours, first going over the latest proposal from the league, then hearing what their legal options were. The one that was chosen, a disclaimer of interest, immediately removed the National Basketball Players Association as the bargaining representative for the players, technically making them non-unionized.
Jonathan Abrams at Grantland.com has a nice Q & A with economics professor Andrew Zimbalist.
Is there any type of timeline of when this will be resolved?
No. There is no set timeline. What will have to happen, unless this pushes the owners to bargain in a way that the players find more acceptable, is it has to go to court. It starts in district court and before it goes to court, there will probably be a number of motions that will attempt to affect the way the district court hears the case.
There are a slew of different things that can be going on there. But there could be request for injunctions, which could be having to try to get the court to declare that the lockout is illegal and have the players go back to work right away, while the things is being adjudicated. There are a variety of things. But eventually, it'll go to court and in district court, it could take many, many months before it came to pass. It could take a half a year. And whatever was decided in district court, it would probably be appealed to an appeals court and of course, that could be appealed to the Supreme Court.
So, if the legal maneuvering doesn't result in a different bargaining outcome, then this could be enormously protracted. But my guess of what the players are hoping is that this gambit will force the owners to reevaluate their position and make more concessions. They're not actually thinking this is going to go all the way through the judicial process.
Here's audio of a radio interview I did with Brian Berger on 750 AM The Game this morning.
No member of the Blazers was visible during the NBPA's televised press conference. Sam Amick of SI.com reports that no Blazers attended the meeting.
Adrian Wojnarowski of Yahoo! Sports also reports that Octagon, the agency that manages Blazers guard Wesley Matthews, is engaging in conversations with several European clubs in hopes of finding him a landing spot.
For two and a half years and through more than 50 collective bargaining sessions, we sat at the table and attempted to negotiate a fair labor agreement with the owners. Last week, with the issuance of yet another ultimatum - a take it or leave it final offer of a long-term agreement with unacceptable terms - Commissioner Stern and the owners left us with no other option. It has become clear to us that we have exhausted our rights under the labor laws, and continuing in that forum would not be in the best interests of the players.With no labor union in place, it is our sincere hope that the NBA will immediately end its now illegal boycott and finally open the 2011-12 season. Individual teams are free to negotiate with free agents for your services. If the owners choose to continue their present course of action, it is our view that they subject themselves to significant antitrust liability.
OS: So is the ultimate upshot here that a season is now much less likely after today's events?
I don't know that it's "much less likely." I just think that the upshot here is that the players have taken a significant step to try to gain leverage at the bargaining table and the upshot is that the season will certainly not start as quickly as it would have without the disclaimer.
But it doesn't mean that the season won't happen. I think a much more shortened season is an inevitability at this point. But the litigation process could take place quickly enough to allow the players and the owners to determine how much leverage they have. It wouldn't mean an entire antitrust lawsuit is litigated because that could take years. But the preliminary fights could take place in a manner of weeks and could be resolved in time to save part of the regular season.
Folks have discussed this as the "nuclear option," and David Stern himself has said we're in for a "nuclear winter." It's not irreparable harm here. They can put the pieces back together in time to save the season.
The decision to disclaim, announced after the nearly four-hour player meeting, stunned even those agents who had been clamoring for the players to decertify for months. Agents held a conference call late Monday afternoon, and according to a person who was briefed on it, hardly any of them were happy with the path the union chose. Some 200 decertification signatures already collected from players likely will be filed with the NLRB as a backup plan in case the disclaimer strategy doesn't work, sources familiar with the decert movement said.
"This is honestly the last thing I would've done," one moderate agent said of the union's disclaimer. "I can't imagine these [players] truly know what they've gotten themselves into. ... I don't know an agent, including the decert agents, who are happy with this move."
A disclaimer was the one weapon at the union's disposal that causes the most chaos the fastest, so maybe there is legal genius in that alone. Once the players file their antitrust lawsuit, the league presumably would follow through on its threat to void all player contracts. Technically, the league would be free to start over -- with new rules, a new draft, and new ways of assigning players to teams. The players would bargain individually, and they wouldn't be considered scabs since they are no longer represented by a union.
This post will update as more information becomes available.
-- Ben Golliver | firstname.lastname@example.org | Twitter