NBA files federal lawsuit against players

[DBoys]

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.

Okay...wait, what?? You're again making the assumption that the union/players simply need file another lawsuit and that would give them the win? I hope you know better than this presumptive stance you keep taking.

In addition, the court's ruling wasn't a guide to split the lawsuit and remove some sort of legal technicality getting in the 8th's way ...they actually REJECTED the union's request to treat that subset differently as regards the injunction. But their reasoning here was that the issues were a bit different, and it had not even been heard at the lower level yet. If you think you see them promising something to the union in any of that, you're dreaming - they pointedly did not rule on the merits.

[NOOOB]

In addition, the court's ruling wasn't a guide to split the lawsuit and remove some sort of legal technicality getting in the 8th's way ...they actually REJECTED the union's request to treat that subset differently as regards the injunction. But their reasoning here was that the issues were a bit different, and it had not even been heard at the lower level yet. If you think you see them promising something to the union in any of that, you're dreaming - they pointedly did not rule on the merits.

Well actually, the only reason they refused to treat that subset differently was because Judge Nelson failed to satisfy the procedural requirements of Section 7 of the NLGA. She should have conducted an evidentiary hearing. That aside, they definitively said Section 4(a) did not apply to rookies/FAs as KB and d-train have been pointing out. But going back to my point, I can't think of any argument that they would satisfy the relatively high standard for issuance of preliminary injunctions.

[DBoys]

In addition, the court's ruling wasn't a guide to split the lawsuit and remove some sort of legal technicality getting in the 8th's way ...they actually REJECTED the union's request to treat that subset differently as regards the injunction. But their reasoning here was that the issues were a bit different, and it had not even been heard at the lower level yet. If you think you see them promising something to the union in any of that, you're dreaming - they pointedly did not rule on the merits.

Well actually, the only reason they refused to treat that subset differently was because Judge Nelson failed to satisfy the procedural requirements of Section 7 of the NLGA. She should have conducted an evidentiary hearing. That aside, they definitively said Section 4(a) did not apply to rookies/FAs as KB and d-train have been pointing out. But going back to my point, I can't think of any argument that they would satisfy the relatively high standard for issuance of preliminary injunctions.

While I certainly agree with the primary point (that "they definitively said Section 4(a) did not apply to rookies/FAs "), I disagree that the refusal was only procedural. The lower court had said that the issue didn't need to be argued or decided. Technically that would be a "procedural" issue, but it also implies a lack of consideration of the issue at all. Unless you see courts actually hearing arguments and weighing evidence from both sides as merely procedures and technicalities (and I don't think you do).

It also needs to be noted that the 8th made a pointed note of several of the league's arguments on that specific issue, that they wanted to make sure the lower court considered if it ended up in front of them again. From that, I don't think they intended it to be taken as only a procedural refusal at all.

But in any event, this was NOT a ruling that addressed the labor exemption. But I think some of the rationale that they used could be troubling for the league, if it was applied in the NBA case - and if one court is open to it, they all have to consider it.

[killbuckner]

Did you even read what I wrote? I repeat- 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 believed was preventing them from granting an injunction in the bigger case.

The courts OPENED THE DOOR to this kind of lawsuit because for rookies and free agents it would clear the specific issue that they believed prevented them from issuing an injunction on the bigger case.

I ahve no clue what you mean by "giving them the win". I don't think that granting an injunction to the lockout only when it comes to rookies and free agents would somehow cause the owners to give up and end the lockout for the entire league.

[DBoys]

Did you even read what I wrote? I repeat- 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 believed was preventing them from granting an injunction in the bigger case.

The courts OPENED THE DOOR to this kind of lawsuit because for rookies and free agents it would clear the specific issue that they believed prevented them from issuing an injunction on the bigger case.

I ahve no clue what you mean by "giving them the win". I don't think that granting an injunction to the lockout only when it comes to rookies and free agents would somehow cause the owners to give up and end the lockout for the entire league.

As NOOOB said, you may be talking about one thing, while I've been talking about another.

I don't really think I agree with the essence of what you said here. And, I think you have missed some crucial angles about the 8th's ruling that I've already noted and you either ignored or missed. But most importantly, perhaps as NOOOB says you are applying your takes on the 8th to one thing, while I'm talking about something different.

So rather than throwing darts back and forth, let me address this by restating my basic argument and see if that makes it a better discussion.

(Below)

[DBoys]

Your original point that I responded to: "Its strongly in the players interest to decertify the uinion before they start missing paychecks."

To that, I strongly disagree.

My contention is that such a tactic at this point would be utter legal stupidity ...Because, if they did so in the current context, it would validate the very claims that the NBA has just alleged in court. Such validation would then make it incredibly easy for the court to grant the NBA the relief it's requesting - things that would be a killer to the union in this labor dispute.

(Regarding that basic point and counter-point, I don't see how any of the 8th's decision would make a decert strategy any more advisable for the NBAPA right now. But as NOOOB said, perhaps you were asserting an applicability of something within the 8th's ruling, for a different situation.)

[killbuckner]

My contention is that such a tactic at this point would be utter legal stupidity ...Because, if they did so in the current context, it would validate the very claims that the NBA has just alleged in court. Such validation would then make it incredibly easy for the court to grant the NBA the relief it's requesting - things that would be a killer to the union in this labor dispute.

And I think thats ridiculous. All the stuff the NBA put in there about how the players were considering decertifying was just so that the courts will actually hear the case and not toss it out of the second circuit court. The players would prefer to have the case thrown out and be able to file it in the forum of their choice (the 9th most likely... though the 9th is also rather unpredictable because of the size). And while the players would prefer that the 2nd circuit case is thrown out so they could litigate it in a different venue, but it doesn't change the fact that they GREATLY benefit by decertifying before they start missing paychecks since it would start the clock ticking on treble damages.

But other than the circuit court hearing the case, whether the union decertifies now or later has NOTHING to do with the merits of the NBA's case. The second circuit court is not going to void all contracts if they were to decertify now, but wouldn't if they decertified later. ITs perfectly legal for the players to decertify any time they think it is in their best interest to do so.

Through all of this you are clouded by looking at it as a dirty trick to decertify the union. But look at it from the players perspective- if you are worried that your co-workers will cave and agree to a bad deal when you think you could get a better one on your own then its in your best interest to decertify the union. This is a legal right available to the players. Its 100% totally legal to bargain right up until the point where you get to an impasse and then decertify.

[DBoys]

It may be LEGAL for the union to decertify ...and I haven't said it wasn't ....but that doesn't make it smart. I think right now it would be incredibly dumb, because you're giving the NBA evidence to support their assertion that the decertification is nothing more than a sham tactic and therefore should be ignored.

If they were going to truly decertify themselves and stop acting as a group with a leader, that would be a different matter. But I don't think that's what you're advocating.

In addition, your idea that the union can decertify and then the league will be on the hook for damages from that point, is contrary to the facts. The courts have made it very clear that you can't hold an employer to such an impossible standard, and in fact that sort of game-playing by unions with the decert idea is what has imperiled the effectiveness of the decert tactic. Because of that, I think your idea would fail, as the foundation has been eroded by the reasoning in various court decisions. Abuse it and lose it.

[killbuckner]

I think right now it would be incredibly dumb, because you're giving the NBA evidence to support their assertion that the decertification is nothing more than a sham tactic and therefore should be ignored.

In 1989 the NFL tried to argue that the decertification was a sham and they lost. This offseason the NFL tried to argue that the decertifcation was a sham and the courts didn't buy into it yet again. When have the courts shown ANY indication of declaring the decertification a sham? This is an argument that is powerful to YOU but the courts haven't ever been compelled by it. Decertifying the union has real legal consequences and means they are giving up significant legal options and the courts have always respected that option for employees.

The NLRB even said the first time that it was irrelevant if the decertification was motivated by litigation strategy. We have been using the term decertification but in actuality it is the union disclaiming interest. And unless there is still organized activity (picketing, strikes, etc) then because the players would be giving up specific rights the disclaimer will be considered valid as it was both times the NFL players did it.

In addition, your idea that the union can decertify and then the league will be on the hook for damages from that point, is contrary to the facts. The courts have made it very clear that you can't hold an employer to such an impossible standard

Where? When have the courts EVER said that? Once the non-statutory labor exemption is gone then the teams are liable for damages on anti-competitive behavior. When have the courts EVER said that the non-statutory labor exemption continues to exist after the union decertifies? This is what happened the first time the NFL players decertified and the league got killed in court. Every judge we have seen rule on this has said that they believe that once the union decertifies then the nonstatutory labor exemption is gone.

Its not an impossible standard if the league doesn't do illegal things. If the union decertifies and the league ends the lockout then they aren't liable for treble damages for players missing paychecks.

[NOOOB]

When have the courts shown ANY indication of declaring the decertification a sham? This is an argument that is powerful to YOU but the courts haven't ever been compelled by it.

I was thinking the same thing, but didn't want to do the research to confirm it. I skimmed back through the league's complaint and noticed that they didn't cite any cases where a court has relied on the sham argument to extend the exemption after decertification. All they relied on were the cases that extended it beyond the expiration of the CBA. You'd have to assume that if such a case was out there, the league would've been all over it.

But I don't think it is entirely unreasonable for a judge in the future (maybe this one?) to allow the exemption to extend for some period after decertification. The Supreme Court left the possibility out there in Brown when it talked about sufficient distance in time and circumstance from the expiration of the CBA. That may mean decertification, it may not. They left it hanging. I think the decertification line makes the most sense and avoids drawing any arbitrary lines, but that's just my opinion.

KB, I meant to point it out yesterday, but you referenced the Supreme Court's saying in Brown "that exemption lasts until collapse of the collective bargaining relationship, as evidenced by decertification of the union." They didn't actually say that. That was their parenthetical explanation of part of the D.C. Circuit's ruling in Brown. So they were actually pointing out that that's the D.C. Circuit's approach, not necessarily theirs. Still, the fact that the Court referenced it lends pretty solid support to your position.

Here's a link to the D.C. Circuit opinion if anyone's interested:

http://law.justia.com/cases/federal/app ... 41/542711/

I haven't had a chance to read it yet and probably won't be able to tonight, but it looks like there's some useful stuff to mine from it.

[ranger001]

Has anyone advanced the sham argument before though? If nobody has argued that decertification was a sham then the court would not comment on it being a sham.

[killbuckner]

Has anyone advanced the sham argument before though? If nobody has argued that decertification was a sham then the court would not comment on it being a sham.

Yes- the first time the NFL players decertified the NFL attacked it as a sham and both the courts and the NLRB declared it a valid decertification. This past time the NFL players decertified the NFL attacked it as a sham decertification and the district court declared it a valid decertification as well.

[NOOOB]

Here's how the NLRB's General Counsel responded to the sham argument when it was raised by the NFL in 1990:

[T]he fact that the disclaimer was motivated by ‘litigation strategy,’ i.e., to deprive the NFL of a defense to players’ antitrust suits and to free the players to engage in individual bargaining for free agency, is irrelevant so long as the disclaimer is otherwise unequivocal and adhered to.

Here's how Judge Nelson responded to it when it was raised in 2011:

because the disclaimer was unequivocal, the Union is not continuing to act as the Players’ bargaining representative, and because the Players have given up very significant rights in doing so,
any subjective motivation for disclaimer is irrelevant, as the Board’s General Counsel has previously advised.

http://www.antitrusthall.com/lockout/10113634171.pdf

The more I read up on it, the less novel the NBA's argument appears to be. It's starting to seem like the roadmap to a valid and "unequivocal" disclaimer is actually pretty clear. If the players vote in favor of decertification, here's the formula for success:

1. amend the NBPA's bylaws to prohibit it from collectively bargaining with the league and refer to the now former union as a professional trade assn.
2. File a termination notice with the Dept. of Labor
3. Refile as a business league with the IRS, rather than a labor organization
4. Advise the league that you're no longer representing players in individual grievances.
5. Then, if needed, go ahead and start a campaign organizing players under the newly formed "United Players of the NBA," which can then challenge the league when it refuses to accept the disclaimer of the now former NBPA (this step isn't necessary for a valid disclaimer)
6. Profit

It worked for the NFL players in the 90s, it worked as far as Judge Nelson was concerned in 2011, and it appears consistent with prior NLRB rulings. Of course the court may still void the contracts though.

[ranger001]

Of course the court may still void the contracts though.

This is the big question, in a court almost nothing is guaranteed and it looks like the NBA has an argument that shouldn't get summarily dismissed at least. I think that will put enough doubt in the players minds that they won't be decertifying anytime soon.

The players voted once not to decertify, was it the same issue of contracts possibly being voided?

[killbuckner]

The players voted once not to decertify, was it the same issue of contracts possibly being voided?

No... the voiding contracts thing is completely new and has never been considered a potential aspect of decertification. No one can quite figure out how the league expects to void the contracts since the NFL players couldn't get their contracts voided even though they decertified twice.

It really does seem like the league just threw it in there to try and scare the players. The only "support" they put in there trying to get the contracts voided was the ruling of a league arbitrator that has no legal weight for the courts when the players tried to say that their guaranteed contracts should be paid even though they were locked out. The league didn't cite a single instance of law or precedent for why they think they should be voided.

[ranger001]

Just because an arbitrator is not a court does not mean that the arbitrator's reasoning is not valid. It has no legal weight but the judges will certainly look at his reasoning and may well follow it.

e.g. "it cannot be reasonably questioned that the UPCs signed by the players are controlled by, dependent upon and closely intertwined with the CBA"

[killbuckner]

The more I read up on it, the less novel the NBA's argument appears to be. It's starting to seem like the roadmap to a valid and "unequivocal" disclaimer is actually pretty clear. If the players vote in favor of decertification, here's the formula for success:

We keep saying that its a decertifcation but really whats going on is that the union organization itself disclaims interest. I think from a legal standpoint this is much cleaner because as long a the organization itself isn't doing anything wrong then the players are more free to speak and act without consequence. If the organization refuses to collectively bargain or organize collective action (Strikes, picketing, etc) then the legal threshold for a valid disclaimer appears to have been met.

[killbuckner]

Just because an arbitrator is not a court does not mean that the arbitrator's reasoning is not valid. It has no legal weight but the judges will certainly look at his reasoning and may well follow it.

I think its pretty important to notice that the league showed no precedent for why they think the contracts could be voided. They didn't point to a law that made them think that the contracts could be voided. They pointed to a statement from a law professor which is about the equivalent of an op-ed.

[ranger001]

IMO, it shows that the argument is relatively untested. If it had been advanced before and failed then the NBA would not have bothered making the same argument again. If it had been advanced before and was successful they would have quoted the legal precedent.

[killbuckner]

The NFL players decertified twice and the players couldn't get the contracts voided even though it would have been very much in their favor. There is precedent- it just doesn't favor the league so they didn't cite it.

This is a hail mary trying to scare the players and thats all. They didn't cite a single aspect of the law that would support them on it. Its a completely frivolous attempt.