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Exploring the Antitrust Implications of a Global Market for Pro Basketball Labor

This recent article from the Rutgers Law Journal is written in plain English and seems to have extraordinary applicability to the player's antitrust lawsuits against the NBA.

The gist of the article is that the courts could decide based on the global market for professional basketball players that the NBA lacks enough "market power" to violate Section 1 of the Sherman Act, which is the applicable law under which the players sue the NBA over labor practices.

The article lists other law journal papers by Edelman on similar subjects. 

DOES THE NBA STILL HAVE “MARKET POWER?” EXPLORING THE ANTITRUST IMPLICATIONS OF AN INCREASINGLY GLOBAL MARKET FOR MEN’S BASKETBALL PLAYER LABOR

Marc Edelman

This article examines whether, based on the recent globalization of the men’s basketball player market, a court today could find NBA teams to compete, in an antitrust sense, in an international market for men’s professional basketball labor. Part I of this article discusses how antitrust law applies to professional sports leagues, and explains why a sports league such as the NBA might seek to argue, from an antitrust perspective, that its players are part of an international labor market. Part II discusses the history of professional basketball in both the U.S. and abroad. Part III describes the differences between the NBA and foreign basketball leagues, and charts player movement between U.S. and foreign leagues. Finally, Part IV explores whether, based on information provided in Parts II and III of this Article, a court could reasonably find there to be an international market for premier men’s basketball labor.

The National Basketball Association ("NBA") represents perhaps the best test case for expanding the "lack of market power" defense. … NBA teams in 2008 lost between 10% and 16% of their workforce to foreign teams. (See Exhibit I: Movement of NBA Free Agents, 2008–09).8 In addition, as of January 2011, 67 of the NBA’s 450 players (12.7% of the overall league population) were both born and educated in foreign countries. (See Exhibits II, III, & IV: 2011 NBA Players from Overseas).9

V. CONCLUSION

Whether a finder-of-fact would deem the NBA to lack "market power" within an international labor market is a matter of great importance to NBA team-owners, as it affects whether the NBA team-owners, under antitrust law, may unilaterally implement league-wide labor restraints.

Based on the foregoing, however, it remains unsettled whether NBA teams compete in an international market for player labor. From a legal perspective, this uncertainty is due to disagreement about the proper definition of the word "practicable" in a labor market context, and thus uncertainty as to whether it is "practicable" for a professional basketball player to accept employment opportunities overseas.

Perhaps, the best presumption that can be reached at this time is that it would be wise for any men’s professional basketball player that seeks to bring a labor-side antitrust suit against the NBA to avoid doing so in the Ninth Circuit, where the holding of Tanaka seems to support a broad definition of the word "practicable" and thus a strong likelihood that the NBA players would be found to operate within an international labor market…

 Note that the players did in fact file their suit in the Ninth Circuit (Northern CA) as well as Minn (Eighth Circuit).  

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