NBA files federal lawsuit against players

[killbuckner]

Total suicide plan for the players.

This is what the 8th circuit said could be done when they ruled that the NLGA prevented them from granting an injunction.

I get that you believe the league unquestionably has the right to void all player contracts which takes decertification off of of the table for them but in the real world this is how the players are likely to proceed if the NLRB claim gets denied.

[ranger001]

We don't know what the chances are of the nba lawsuit succeeding but whatever it is, it would be foolhardy for them to decertify because if the court rules that decertification means all contracts become void then they would have shot themselves in the foot.

If it was abundantly clear that the lawsuit had zero chance of succeeding then yes but that is not so.

Its a ridiculous claim that has no basis at all in the entire history of labor law which seems pretty clear to the league since the only "support" that the league gave for their position was some dicta from a league arbitrator who is not at all binding on the court system.

Are you a lawyer? There are good lawyers who have not labelled the NBA lawsuit as "ridiculous" and without merit. If the court does not dismiss the lawsuit then there's something there.

[DBoys]

Total suicide plan for the players.

A This is what the 8th circuit said could be done when they ruled that the NLGA prevented them from granting an injunction.

B I get that you believe the league unquestionably has the right to void all player contracts which takes decertification off of of the table for them
C but in the real world this is how the players are likely to proceed if the NLRB claim gets denied.

A - The 8th said no such thing. You're reading "we take no stance" as an endorsement when it obviously isn't.

B - I'm not asserting what the court will clearly do on the NBA lawsuit ....
....but the problem for the union is, a decert right now pretty much validates the NBA's arguments being made in the lawsuit, right down the line. That therefore would make the NBA's case that much stronger and possibly hand the NBA a victory in that lawsuit. And it's not a suit the players can afford to lose.

C The things I'm saying are the real world. Points are already being raised in court that fly in the face of the supposed "game plan" for unions.

The concept that "today we're calling ourselves a union and working as a group, tomorrow we're not but we're still the same group with the same negotiators" as a legit union bargaining tool is being challenged. It frankly comes off as an utter joke to me, to allow that sort of game-playing, but I'm not the judge. However, I do know that judges are thinking people and if you take a position that makes no sense and use "we've always done it this way" or "because that's how it is" as your rationale, you're in danger. If it's in court, two sides are disagreeing and someone else is making a decision, and it won't be you.

I'm saying that times (and court decisions) can change the way things work in such matters, and the unions failure to consider that would be moronic.

[killbuckner]

The 8th said no such thing. You're reading "we take no stance" as an endorsement when it obviously isn't.

Maybe you just missed it? This is what the 8th circuit actually said.

Another portion of the injunction is not foreclosed by § 4(a). The district court
enjoined not only the League’s lockout of employees, i.e., players under contract, but
also the League’s refusal to deal with non-employees, i.e., free agents and prospective
players or “rookies.” As to these latter groups of players, § 4(a) does not apply. The
refusal of the League and NFL clubs to deal with free agents and rookies is not a
refusal “to remain in any relation of employment,” for there is no existing
employment relationship in which “to remain.”

An injunction with respect to the League’s actions toward free agents and
rookies, however, cannot be issued except in strict conformity with § 7 of the NLGA,
29 U.S.C. § 107, because this is “a case involving or growing out of a labor dispute.”
Id. §§ 101, 107. The present injunction does not conform to § 7.

What that is saying is that the NLGA would not apply if the suit were only about Rookies and Free agents. So that if the players were to file 2 separate suits as suggested above then the players would have a higher likelyhood of success.

[killbuckner]

The concept that "today we're calling ourselves a union and working as a group, tomorrow we're not but we're still the same group with the same negotiators" as a legit union bargaining tool is being challenged. It frankly comes off as an utter joke to me, to allow that sort of game-playing, but I'm not the judge.

It comes across as a joke to you, but eventually the players must be allowed to give up union representation if they think they are better off without it. And I think that the players have likely already crossed the point where they are better off without it considering how much the owners are demanding. In your world there is no way for players to ever give up the union and decide to pursue anti-trust litigation.

How I see it is that by decertifying the union the owners then are not allowed to lock the players out, but are able to put whatever work rules they wish to in place. The players could sue to stop those rules as an antitrust violation (and get treble damages) but they would no longer have the ability to strike as a group in order to get the rules overturned. They wouldn't be able to file a grievance with the players trade union. They would lose very specific benefits that being a union grants them.

I'll just quote from Circuit court judge Bye who dissented in the eighth circuit ruling. While the majority in the case did not address this aspect here is what this particular judge thought about when a union's decerification would mattter:

the antitrust immunities stemming from statutory and nonstatutory labor exemptions must come to an end andgive way to antitrust remedies. Such point does not come a year from the union disclaimer, nor one business cycle from it, as suggested by the League’s counsel. Rather, such point comes at the moment of the union disclaimer.

[d-train]

I'll just quote from Circuit court judge Bye who dissented in the eighth circuit ruling. While the majority in the case did not address this aspect here is what this particular judge thought about when a union's decerification would mattter:

the antitrust immunities stemming from statutory and nonstatutory labor exemptions must come to an end andgive way to antitrust remedies. Such point does not come a year from the union disclaimer, nor one business cycle from it, as suggested by the League’s counsel. Rather, such point comes at the moment of the union disclaimer.

I believe all the judges agreed with this premise. The court ruled that federal courts didn't have jurisdiction to grant injunction against the lockout. The court didn't rule that the lockout was legal or immune from antitrust remedies. The court was clear that antitrust immunities stemming from statutory and non-statutory labor exemptions must come to an end. The court did not decide in the NFL case that the labor exemption would extend beyond the date the union decertified, which is the logical date to end the labor exemption. The issue the court wrestled with is when litigation no longer grew from a prior labor dispute. The court decided there is a period of potential overlap. A period when the NFL could be in violation of antitrust laws but still federal courts could not issue an injunction to end the lockout.

Apparently, Stern doesn't like the fuzzy reality that the NBA could be liable for triple damages if the NBA follows the NFL blueprint of boycotting non-unionized workers. The courts are going to tell Stern his only safe ground is to assume the labor exemption ends when the union decertifies, contracts between players and teams extend beyond the expiration of the CBA, and the parties can seek remedies to enforce them. Unless, the NBA defaults, then the NBA could lose benefits from agreements but still be responsible for their obligations.

[killbuckner]

I believe all the judges agreed with this premise. The court ruled that federal courts didn't have jurisdiction to grant injunction against the lockout. The court didn't rule that the lockout was legal or immune from antitrust remedies. The court was clear that antitrust immunities stemming from statutory and non-statutory labor exemptions must come to an end. The court did not decide in the NFL case that the labor exemption would extend beyond the date the union decertified, which is the logical date to end the labor exemption.

I think that the majority sidestepped the matter entirely. Here is what the Majority said:

Given our conclusion that the preliminary injunction did not conform to the provisions of the Norris-LaGuardia Act, we need not reach the other points raised by the League on appeal. In particular, we express no view on whether the League’s nonstatutory labor exemption from the antitrust laws continues after the union’s disclaimer.

But I do think that the courts would definitely agree. Here is what the Supreme court wrote in Brown vs Pro Football:

that exemption lasts until collapse of the collective bargaining relationship, as evidenced by decertification of the union

[d-train]

I believe all the judges agreed with this premise. The court ruled that federal courts didn't have jurisdiction to grant injunction against the lockout. The court didn't rule that the lockout was legal or immune from antitrust remedies. The court was clear that antitrust immunities stemming from statutory and non-statutory labor exemptions must come to an end. The court did not decide in the NFL case that the labor exemption would extend beyond the date the union decertified, which is the logical date to end the labor exemption.

I think that the majority sidestepped the matter entirely. Here is what the Majority said:

Given our conclusion that the preliminary injunction did not conform to the provisions of the Norris-LaGuardia Act, we need not reach the other points raised by the League on appeal. In particular, we express no view on whether the League’s nonstatutory labor exemption from the antitrust laws continues after the union’s disclaimer.

But I do think that the courts would definitely agree. Here is what the Supreme court wrote in Brown vs Pro Football:

that exemption lasts until collapse of the collective bargaining relationship, as evidenced by decertification of the union

They sidestepped the issue in their formal ruling but they sure talked about it during the oral arguments and discussion at the hearing? Even the NFL agrees the labor exemption doesn't last forever.

[NOOOB]

The union should decertify. Collective bargaining is not productive for players and time is being wasted.

After decertification, NBA players should sue owners for antitrust violations if they continue the lockout. The players should also seek an injunction to stop the lockout, but they should file separate claims rather than lump all players together. Players without an employment relationship because they have no contract and players that have never been employed by the NBA should have separate claims than players under contract and in an employment relationship. This differs from the injunction NFL players requested by eliminating the potential blanket applicability of the Norris–La Guardia Act.

The idea being that a court would not grant an injunction to players under contract, because to do so would be prohibited by Section 4(a) of the NLGA, but might grant an injunction requested by rookies/FAs since they aren't covered by Section 4(a)?

I'm trying to consider all the potential ramifications of filing separately, but my first thought on the NLGA issue is what would enjoining the lockout only with respect to rookies/FAs accomplish? As far as free agents are concerned, if the lockout is lifted for them they have no job to go back to anyway. I suppose they could resume negotiating with various teams. As for the rookies, teams aren't necessarily obligated to pay them anything or even offer them a contract, right? I might be wrong, but I thought they just waive their rights to draftees if they don't sign them to rookie scale contracts. If that's the case, then there's no job necessarily waiting for a rookie either, even if the lockout is enjoined with respect to them. All that being said, what's the pressing need for stopping the league from locking out people who aren't even employees in the first place?

I'm not saying rookies/FAs have no interest in an anti-trust suit (as opposed to an injunction on the lockout). I think they do. I'm just trying to figure out the potential benefit of filing a separate suit from the rest of the players.

[killbuckner]

I'm trying to consider all the potential ramifications of filing separately, but my first thought on the NLGA issue is what would enjoining the lockout only with respect to rookies/FAs accomplish? As far as free agents are concerned, if the lockout is lifted for them they have no job to go back to anyway. I suppose they could resume negotiating with various teams. As for the rookies, teams aren't necessarily obligated to pay them anything or even offer them a contract, right? I might be wrong, but I thought they just waive their rights to draftees if they don't sign them to rookie scale contracts. If that's the case, then there's no job necessarily waiting for a rookie either, even if the lockout is enjoined with respect to them. All that being said, what's the pressing need for stopping the league from locking out people who aren't even employees in the first place?

I'm not saying rookies/FAs have no interest in an anti-trust suit (as opposed to an injunction on the lockout). I think they do. I'm just trying to figure out the potential benefit of filing a separate suit from the rest of the players.

If the league collectively decided not to sign any rookies then that would be collusion and pretty much illegal in absence of a union. They could try and implement a rookie wage scale that would also be pretty much across the board illegal and would be subject to treble damages. The draft itself would also be subject to an anti-trust suit and treble damages since the league would have a tough time telling players they are only allowed to sign with 1 team and not negotiate with anyone else.

The league wouldn't be able to collectively decide to not sign free agents and they would have to decide on rules of free agency. These rules would also be subject to treble damages if they were later found to be illegal.

Simply put the league being forced to deal with the free agency in absence of a union would greatly increase the potential damages for the players once it went to court.

[d-train]

And, if the owners can't lockout everyone, what would be the point of locking out anyone. They would be opening themselves up to substantial losses but would not achieve anything. The NBA needs the lockout to extend to all players. Without the ability to lockout all players, the NBA has to change its negotiating stance or choose run their league in accordance with antitrust laws.

[DBoys]

The 8th said no such thing. You're reading "we take no stance" as an endorsement when it obviously isn't.

Maybe you just missed it? This is what the 8th circuit actually said.

Another portion of the injunction is not foreclosed by § 4(a). The district court
enjoined not only the League’s lockout of employees, i.e., players under contract, but
also the League’s refusal to deal with non-employees, i.e., free agents and prospective
players or “rookies.” As to these latter groups of players, § 4(a) does not apply. The
refusal of the League and NFL clubs to deal with free agents and rookies is not a
refusal “to remain in any relation of employment,” for there is no existing
employment relationship in which “to remain.”

An injunction with respect to the League’s actions toward free agents and
rookies, however, cannot be issued except in strict conformity with § 7 of the NLGA,
29 U.S.C. § 107, because this is “a case involving or growing out of a labor dispute.”
Id. §§ 101, 107. The present injunction does not conform to § 7.

What that is saying is that the NLGA would not apply if the suit were only about Rookies and Free agents. So that if the players were to file 2 separate suits as suggested above then the players would have a higher likelyhood of success.

Come on Kill, your eye for detail is way better than this junk you're offering as support for your argument.

I'm not sure what exactly you are asserting that the 8th said in that snippet and in its context, that you're saying somehow supports your decertify-and-sue angle ....but in their ruling they clearly endorsed no such strategy.

In what you referenced, they were speaking about one sub-issue, and even that minor point you cited went nowhere for the union - the 8th simply told them that the issues were not the same, but it hadn't really been argued at the district court level yet, and to go back to the district court and argue it there if they wanted to pursue it.

But more to my point - nowhere in their ruling did they offer a broad "deceertify and win" concept to the union as you are imagining. In fact, they openly avoided validating any such thing. Both sides had ARGUED AT LENGTH about the validity of such a strategy, and in their general conclusion the 8th said bluntly that "we express no view" on the legality of such strategy. And the NBA is now in the 2nd district seeking to adjudicate that very issue.

[NOOOB]

I'm trying to consider all the potential ramifications of filing separately, but my first thought on the NLGA issue is what would enjoining the lockout only with respect to rookies/FAs accomplish? As far as free agents are concerned, if the lockout is lifted for them they have no job to go back to anyway. I suppose they could resume negotiating with various teams. As for the rookies, teams aren't necessarily obligated to pay them anything or even offer them a contract, right? I might be wrong, but I thought they just waive their rights to draftees if they don't sign them to rookie scale contracts. If that's the case, then there's no job necessarily waiting for a rookie either, even if the lockout is enjoined with respect to them. All that being said, what's the pressing need for stopping the league from locking out people who aren't even employees in the first place?

I'm not saying rookies/FAs have no interest in an anti-trust suit (as opposed to an injunction on the lockout). I think they do. I'm just trying to figure out the potential benefit of filing a separate suit from the rest of the players.

If the league collectively decided not to sign any rookies then that would be collusion and pretty much illegal in absence of a union. They could try and implement a rookie wage scale that would also be pretty much across the board illegal and would be subject to treble damages. The draft itself would also be subject to an anti-trust suit and treble damages since the league would have a tough time telling players they are only allowed to sign with 1 team and not negotiate with anyone else.

The league wouldn't be able to collectively decide to not sign free agents and they would have to decide on rules of free agency. These rules would also be subject to treble damages if they were later found to be illegal.

Simply put the league being forced to deal with the free agency in absence of a union would greatly increase the potential damages for the players once it went to court.

No I agree about the damages. That's why I said rookies/FAs would probably still have an interest in an anti-trust suit. I was just saying that the strategic advantage in filing separate suits wasn't apparent to me from an NLGA standpoint.

[NOOOB]

And, if the owners can't lockout everyone, what would be the point of locking out anyone. They would be opening themselves up to substantial losses but would not achieve anything. The NBA needs the lockout to extend to all players. Without the ability to lockout all players, the NBA has to change its negotiating stance or choose run their league in accordance with antitrust laws.

Assuming the court takes the 8th Circuit's approach, they won't let the fact that rookies/FAs aren't covered by Section 4(a) carry over to the players under contract. The majority of players will still be locked out, so there's no point in going halfway with an injunction.

Edit: I initially missed some of your point so I edited my post accordingly.

[d-train]

And, if the owners can't lockout everyone, what would be the point of locking out anyone. They would be opening themselves up to substantial losses but would not achieve anything. The NBA needs the lockout to extend to all players. Without the ability to lockout all players, the NBA has to change its negotiating stance or choose run their league in accordance with antitrust laws.

Assuming the court takes the 8th Circuit's approach, they won't let the fact that rookies/FAs aren't covered by Section 4(a) carry over to the players under contract. The majority of players will still be locked out, so there's no point in going halfway with an injunction.

Edit: I initially missed some of your point so I edited my post accordingly.

The NBA players under contract won't need the courts to rule any different than the 8th Circuit did. The 8th Circuit simply said the unions decertification was a part of the negotiating process in the NFL's case.

Eventually, the decertification of the union is the end of the negotiation process and the end of the labor exemption. The court didn't hint what they thought specifically would end the labor exemption but they suggested labor exemption wouldn't last more than 6 months beyond union decertification.

Players with contracts in addition to antitrust also have civil remedies against owners. In exchange for fair consideration, the owners guaranteed players a paycheck. Maybe federal courts can't enjoin a labor boycott, but that doesn't relieve owners of their contractual obligations. Players can sue for release from the teams that are in default and remarket their stills to other NBA teams.

I don’t get your assertion that rookies and players not under contract have no jobs to pursue. The NBA can decide to cease to exist but if they choose this approach to resolving their labor dispute they can’t also claim to be in continuing negotiation with players under contract for a CBA.

[NOOOB]

The NBA players under contract won't need the courts to rule any different than the 8th Circuit did. The 8th Circuit simply said the unions decertification was a part of the negotiating process in the NFL's case.

Eventually, the decertification of the union is the end of the negotiation process and the end of the labor exemption. The court didn't hint what they thought specifically would end the labor exemption but they suggested labor exemption wouldn't last more than 6 months beyond union decertification.

? I wasn't weighing in on the effect of decertification on the application of the labor exemption. However, if you read back through my posts in this thread you'll see that my position on that issue is pretty much in lock step with yours.

Maybe federal courts can't enjoin a labor boycott, but that doesn't relieve owners of their contractual obligations.

I never said anything to the contrary. In fact, I thought your earlier point that "the court decided there is a period of potential overlap. A period when the NFL could be in violation of antitrust laws but still federal courts could not issue an injunction to end the lockout" was spot on.

I don’t get your assertion that rookies and players not under contract have no jobs to pursue.

I didn't say that they don't have a job to pursue. That's what free agency is all about. I said they have no job to go back to. For further clarification, what I meant by that was that they have no contractually obligated job to go back to when the lockout ends, which would render them an employee from the 8th Circuit's POV.

In order to convince the court that a preliminary injunction is in order, they have to show that they are likely to suffer irreparable harm without one. But unlike a player under contract, a FA isn't being denied any contractually obligated money as the lockout rolls on. Similarly, rookies are not being denied contractually obligated $, the execution of their contracts is just being pushed back until the league resumes business. So lacking any irreparable harm, there is no basis to enjoin the lockout with regard to rookies/FAs. Hence, no half injunction which forces the league to change its negotiating stance.

Unfortunately for the players under contract, they are certainly suffering irreparable harm in the form of lost income from the lockout. But Section 4(a) of the NLGA prevents them from seeking the injunctive relief to which they might otherwise be entitled.

[DBoys]

I'm trying to consider all the potential ramifications of filing separately, but my first thought on the NLGA issue is what would enjoining the lockout only with respect to rookies/FAs accomplish? As far as free agents are concerned, if the lockout is lifted for them they have no job to go back to anyway. I suppose they could resume negotiating with various teams. As for the rookies, teams aren't necessarily obligated to pay them anything or even offer them a contract, right? I might be wrong, but I thought they just waive their rights to draftees if they don't sign them to rookie scale contracts. If that's the case, then there's no job necessarily waiting for a rookie either, even if the lockout is enjoined with respect to them. All that being said, what's the pressing need for stopping the league from locking out people who aren't even employees in the first place?

I'm not saying rookies/FAs have no interest in an anti-trust suit (as opposed to an injunction on the lockout). I think they do. I'm just trying to figure out the potential benefit of filing a separate suit from the rest of the players.

If the league collectively decided not to sign any rookies then that would be collusion and pretty much illegal in absence of a union.

Nonsense. If the league is not operating due to a lockout over the financial framework going forward, then it would make no sense from any angle to spend more money on and add more union members to that adversarial class, absent a prior resolution of those financial issues. And a court will absolutely not force the league to sign players - even moreso when they aren't even operating.

In fact, in their comments on whether to lift the lockout injunction regarding the separate category of free agents and rookies, the 8th pointedly noted that permitting signings would do nothing more than qualify such players to then be locked out. But they referred it back to the lower court, if the parties wanted to fully argue it to a decision. (And they never did.)

[killbuckner]

Come on Kill, your eye for detail is way better than this junk you're offering as support for your argument.

I'm not sure what exactly you are asserting that the 8th said in that snippet and in its context, that you're saying somehow supports your decertify-and-sue angle ....but in their ruling they clearly endorsed no such strategy.

All I was saying was that the courts opened the door to splitting the lawsuit and that suing for an injunction for only the rookies and free agents would clear the legal impediment that the court belived was preventing them from granting an injunction in the bigger case.

[NOOOB]

Come on Kill, your eye for detail is way better than this junk you're offering as support for your argument.

I'm not sure what exactly you are asserting that the 8th said in that snippet and in its context, that you're saying somehow supports your decertify-and-sue angle ....but in their ruling they clearly endorsed no such strategy.

All I was saying was that the courts opened the door to splitting the lawsuit and that suing for an injunction for only the rookies and free agents would clear the legal impediment that the court belived was preventing them from granting an injunction in the bigger case.

Yeah, I was thinking there might have been a disconnect there. KB pulled a quote as a means to discuss injunctive relief for rookies/FAs, DBoys thought he referenced it regarding the decertify and sue thing.

[DBoys]

Eventually, the decertification of the union is the end of the negotiation process and the end of the labor exemption. The court didn't hint what they thought specifically would end the labor exemption but they suggested labor exemption wouldn't last more than 6 months beyond union decertification.

Where did you see a weigh-in on the labor exemption's duration in the 8th's ruling? None of that was decided by them. And I don't see any "6 months" time frame in their ruling.