NBA files federal lawsuit against players

[killbuckner]

The new league would have the same owners.

If its the same owners trying to get around labor laws thats collusion and that enables the players to sue for triple damages.

[DBoys]

Dboys- a salary cap in the NBA wouldn't be any more legal than all the big fast food restaurants in the US to band together to say that they aren't willing to pay more than the minimum wage and then telling the courts "Have them go to europe to work if they don't like our deal". A salary cap isn't anywhere CLOSE to the line of what would be legal in absence of a union. I know you don't see this but seriously- please find ONE lawyer who thinks that it would be legal for the NBA to keep a salary cap if the players were to dissolve the union. You can't do it because its a completely ridiculous statement. A salary cap is pretty much the textbook defintion of price fixing.

Kill, your assertions don't make these things so. I know you believe them with all your heart, but your analogy fails badly to be a real comparison, and there are plenty of ways to skin a cat legally.

There is a huge difference between fast food restaurants who are in financial competition with each other, and franchises in a basketball league who are working together. These are not independent basketball businesses who sprang up in various locations and then aligned - they are all inextricably tied together, and are actually part of one single business, which is one of basketball competition.

These are certainly not McDonald's and Burger King and Wendys' trying to run each other out of town ....At best, maybe you say these are all McDonald's. But they are tied even closer than that, since their work is cooperative competition that is not financial. (No NBA team gains if another one goes bankrupt.) All in all, your analogy is comparing apples to oranges.

But it's not just my theorizing that sports leagues are different and therefore have a different standard. That's what the Supremes said. It was their point that you have to look at the individual circumstance and weigh it for anti-trust, to see if it violates the law or not, and they took pains to note the validity of teams in a league working together in unspecified ways.

Furthermore, comparing the market for services (geographical feasibility) for a fast food worker making $7 an hour, vs that of a basketball player making $1M or more a year, just doesn't cut it. Those players are not a local commodity but an international one, and they market their services that way. Their actions smash to bits the notion that the NBA or the USA is their only option, and since the SC test is one of options rather than any hard-and-fast rule, I think your assumptiveness on these issues is rash. Any attorney will tell you that the courts are littered with the dead carcasses of those who thought that their angle was a slam dunk, and lost.

[killbuckner]

Dboys- what you don't understand is that a salary cap without a union is NOWHERE CLOSE to the line. A luxury tax where the proceeds go to the players could be close to the line. In the MLS whre the league owned every team it was close to the line. The league instituting whatever salary cap they wanted to without the players having any say whatsoever isn't any where close to the line and you will never be able to find a lawyer who thinks that it is possible for that to be upheld. I've asked you over and over to find ONE and you haven't been able to.

Its a ridiculous thing to even discuss because the owners would never be dumb enough to put those rules in place because they would be on the hook for triple damages once they lost in court.

[DBoys]

Kill, your assertions that such things are not "close to the line" doesn't wash, because there is no law that says "Thou shalt not have a sports league with a salary cap, unless you have a union." It's all a matter of conjecture as to what would be on one side and what would be on another, until the courts put a final stamp on things. Even that would be subject to change, as the world of commerce changes.

In these various discussions, your assertions are all assumptive as if there's only one possibility. Yet some of your certainties have already been dashed by the outworkings of legal proceedings. My belief is that things aren't nearly as cut and dried as you think (or wish) they were in these kinds of matters.

[killbuckner]

Dboys- You act like this is the first time that a sports league has tried to go to courts to preserve rules that were anti-competitve. There is a long history of the court system openly laughing at the type of argument you are making here. As I said- its NOWHERE CLOSE to the line of what the courts would allow. Seriously... PLEASE try and find ONE lawyer who has studied antitrust law at all that thinks that the courts would go along with a salary cap if the union were to decertfiy.

[DBoys]

Kill, so which court has said "Thou shalt not have a sports league with a salary cap, unless you have a union"? And which one said "In the MLS whre the league owned every team it was close to the line" to have a salary cap? Who drew this line? Or has it simply been assumed?

I have no dispute with the idea that leagues have had rules that were illegal and struck down. The pendulum swung as those rules were invalidated. But at some point, the courts stopped ruling yet the pendulum may have swung much further than the courts actual rendering ....And, the marketplace may have changed.

If I recall correctly, you were adamant that decertification would have no impact whatsoever on NBA player contracts, with assertions that no lawyer truly believed such a thing. Didn't you even assert that Stern couldn't possibly have meant what he said, when he alluded to the idea? Yet clearly he meant it, and other league attorneys do as well, because we have something even more compelling than a dry article by an attorney - we have attorneys asserting that in court.

I don't mean that as an "I told you so" but simply to make the point that all this dependence on articles and attorneys willing to bluster, tells us nothing. If we want to know if someone REALLY believes it - believes it enough to test it in court - now we have no question that the answer is "Absolutely."

The same applies to things like a cap - even with tons of lawyering by various sideline lawyers, we may not really know where this so-called line is, even when we think we do. The MLS may be completely clear and not even close to the line, and the NBA may have lots of latitude for a self-imposed cap given the competitive opportunities for basketball players to play elsewhere - if we try to say we know, without those things having been adjudicated, we may just be hoodwinking ourselves.

[killbuckner]

Dboys- there is no cost for the league to throw it out there in court that they think that nba contrcts could be voided. People file frivolous lawsuits all the time and I think there is a very good chance that the NBA's lawsuit will be thrown out. I still haven't seen anyone that actually believes that the contracts will be nullified. once again PLEASE let me know if you find an article since I would genuinely like to read that. Of course you haven't ever found one but I'll keep asking.

The courts stopped ruling on these issues because the owners started collectively bargaining things like a salary cap which puts them out of the reach of the courts. But literally I have never seen anyone say that they think that a salary cap would be legal in absence of a union.

Kill, so which court has said "Thou shalt not have a sports league with a salary cap, unless you have a union"

We have generations of labor law that says that unless something like a salary cap is collectively bargained that it isn't even close to legal and no league is stupid enough to try it knowing that they would have to pay triple damages once they lost in court.

And which one said "In the MLS whre the league owned every team it was close to the line" to have a salary cap? Who drew this line? Or has it simply been assumed?

The courts ruled in Fraser vs Major League Soccer that the MLS wasn't a single entity but instead was a hybrid. And this is when the individual team owners had little to no say in the day to day running of the team to the point where they couldn't even sign their own players. Here is part of the court reasoning talking about how its "close to the line".

As a result, the court found that because operator/investors are not
mere servants of MLS, but in reality effectively control it—by having the
majority of votes on the managing board— MLS’s analogy to a single entity is weak, and more closely resembles a collaborative venture.

[Courtside]

The only players that are required to have guaranteed contracts are first round picks and the first year of a contract if a player signed an offersheet.

You're misunderstanding what a guaranteed contract is.

You're thinking it's guaranteed in that it's set in stone that the team is obligated to give it. What others are saying - and this is true to the CBA - is that once a contract is signed, it is guaranteed to the player unless certain years (or % thereof) are partially guaranteed.

Once the contract is signed, the team pays it whether the player plays or not, is injured, etc...and they don't have the ability to unilaterally terminate it like NFL teams do. This is why the NFLPA agreed to carry on playing with existing contracts and why NBA teams cannot. It made no difference to NFL players that their new contracts were not guaranteed since the old ones weren't either and it was easier to just get back on the field with the ones that were in place.

NBA contracts were signed under a CBA environment and if the union de-certifies, the league would have no choice but to rip up all contracts - because requiring players to honor those contracts in a non-CBA league could also be a ULP. Only if the players specifically volunteer to continue with their previous contracts could they be retained.

[Agenda42]

IANAL, so I'll let the professionals figure out whether the league's claim that decertification voids contracts has any merit.

It seems like a pretty weird thing for ownership to want to prove, though. Suppose a ruling comes down that UPCs are voided if the union decertifies. Doesn't that mean that the players can cause league-wide anarchy anytime they believe the terms of employment aren't good enough?

[killbuckner]

Courtside- You couldn't be any more wrong about the NFL. The first time the players decertified the players not only weren't able to get out of their contracts, but even after they became free agents the teams were still holding their rights after their contract ended. Why do you think that the NFL players were not able to void the contracts before but now teams woudl be able to void the contracts? And if you can find an article from a lawyer that says they think that the contract actually may get nullified PLEASE post it.

[giberish]

Two unrelated additional thoughts to this arguement.

1) Most current federal judges have been appointed by conservative Republican presidents who consider labor unions inherently evil. NBA filings that are between sketchy and baseless by the letter of the law may do very well in courts run by conservative judges (and the clearly picked a court that leans that way for their case filing).

2) I doubt NBA teams could selectively void contracts, it would have to be all or nothing. Do the Clippers want out of Blake Griffin and Eric Gordan's contracts? OKC with Durant, Westbrook, Harden and Ibaka? Miami with Wade, Lebron and Bosh? Some teams would certainly be against this.

[Courtside]

Courtside- You couldn't be any more wrong about the NFL. The first time the players decertified the players not only weren't able to get out of their contracts, but even after they became free agents the teams were still holding their rights after their contract ended. Why do you think that the NFL players were not able to void the contracts before but now teams woudl be able to void the contracts? And if you can find an article from a lawyer that says they think that the contract actually may get nullified PLEASE post it.

Players get cut, don't they? Do they get paid after they're cut?

[DBoys]

Kill, your demand for an article and my (or anyone else's) indifference to look for one sheds no light either way. I do know you've whiffed badly on your predictions to the courts' responses in the NFL case, as did most if not all of the idle attorneys braying from the sideline. An article by one of them wouldn't be compelling to me (either way) as proof, so why bother?

I do read closely what judges write in rendering opinions on these things. Those count. (It's worthwhile to note that your characterization of MLS's situation as "close to the line" doesn't jibe with the courts resounding victory to MLS in the case you cited, in which much of it was dismissed in summary fashion and in which all the appeals were completely shot down without a dissenting judge. In fact there were significant portions of that decision that the NBA could use to their advantage, I bet. "Single entity" [or not] was not the turning point in such legal matters that you seem to think.) But the talking heads are a dime a dozen.

It is enlightening that Stern has implied all along that contracts can get voided if the union decertifies, and his actions now match those words. He is a top shelf attorney, whose field of practice is labor law as applied to sports leagues, and with more than 30 years of active experience, he is one of the top (and perhaps #1) in the intricacies in that field. You can believe that he'd file a trivial lawsuit that he knows has no shot and will lead to a quick summary dismissal, but I don't ....And I think your blithe dismissal of his words and actions here is classic ostrich-like stuff.

[NOOOB]

Kill, so which court has said "Thou shalt not have a sports league with a salary cap, unless you have a union"?

The courts stopped ruling on these issues because the owners started collectively bargaining things like a salary cap which puts them out of the reach of the courts. But literally I have never seen anyone say that they think that a salary cap would be legal in absence of a union.

I'm reaching back, but there's NBA v. Williams. A district court judge in NY initially ruled that the draft, right of first refusal for RFAs, and the salary cap were protected by the non-statutory exemption and (here's the kicker) even in absence of the exemption, such restrictions did not violate anti-trust law under the rule of reason. So there's one guy who thought a salary cap would be legal in absence of a union.

But take that with a big brick of salt. On appeal the 2nd Circuit upheld his ruling, but declined to agree that the cap, etc. passed scrutiny under the rule of reason. Instead, they gave a wandering lecture on the history of collective bargaining and how it allowed for the continuation of the status quo after a bargaining impasse, or something like that. It was pretty convoluted. At any rate, based on that determination they concluded that they "need not, therefore, address the various arguments pro and con regarding the Rule of Reason."

http://ftp.resource.org/courts.gov/c/F3 ... 9.761.html

In my view, the fact that they went to such lengths to avoid ruling that the cap and other restrictions don't violate The Sherman Act in absence of collective bargaining shows how tenuous that position is. So you're left with one outlier versus a court that wouldn't sign on with him, as well as the the prevailing position. Here's at least one seemingly credible source that disagrees:

In the United States, many of the constraints under which leagues operate do not pass antitrust muster under Section One of the Sherman Act. 15 U.S.C. 1. Section One of the Sherman Act states, "Every contract, combination … or conspiracy, in restraint of trade or commerce … is hereby declared to be illegal." Restraints such as age restrictions, salary caps and entry drafts would all likely be considered per seillegal under the Sherman Act, or at minimum, proscribed under rule of reason analysis because the restraints limit players' rights to be compensated freely and limit players' market access.

http://www.chicagolawbulletin.com/News- ... 02-11.aspx

[DBoys]

Kill, so which court has said "Thou shalt not have a sports league with a salary cap, unless you have a union"?

The courts stopped ruling on these issues because the owners started collectively bargaining things like a salary cap which puts them out of the reach of the courts. But literally I have never seen anyone say that they think that a salary cap would be legal in absence of a union.

In my view, the fact that they went to such lengths to avoid ruling that the cap and other restrictions don't violate The Sherman Act in absence of collective bargaining shows how tenuous that position is. So you're left with one outlier versus a court that wouldn't sign on with him, as well as the the prevailing position.

There's another way to look at these items. After looking at the above ....
1 It can NOT be said that no one has said "a salary cap would be legal in absence of a union"
2 In fact, it has even been said by a judge in a court case
3 And on appeal, the appellate judges did NOT say otherwise, even though they could have
4 In total, that tells me it's shaky to make a bald assumption that a cap gets shot down if there's not a union. Could happen, "probable" might be the right word, yet there's reason to think something different can happen in light of existing precedent to the contrary.

EDIT: After further review, in NBA vs Williams, the Appellate Court's ruling was far more supportive of the lower court's concept than indicated above. Far from shooting down the lower court, it sounds more like an echo.

This is what the Appellate Court said in conclusion:
"We therefore hold that the antitrust laws do not prohibit employers from bargaining jointly with a union, from implementing their joint proposals in the absence of a CBA, or from using economic force to obtain agreement to those proposals."

The words "from implementing their joint proposals in the absence of a CBA" and "from using economic force to obtain agreement" is strong language.

[NOOOB]

1 It can NOT be said that no one has said "a salary cap would be legal in absence of a union"
2 In fact, it has even been said by a judge in a court case

Yep, I agree. And I acknowledged this in my post.

3 And on appeal, the appellate judges did NOT say otherwise, even though they could have

True, they could have taken a stand and overruled the district court judge, finding that the salary cap, etc. violates anti-trust law. But why weigh in on this and risk being overturned on appeal when you can take the safe route and hide behind the labor exemption? Not that I personally believe that would be the outcome, but that's just my guess. Which leads to my response to 4...

4 In total, that tells me it's shaky to make a bald assumption that a cap gets shot down if there's not a union. Could happen, "probable" might be the right word, yet there's reason to think something different can happen in light of existing precedent to the contrary.

Again, you're right. I agree that it is probable that the cap, etc. would be shot down lacking a union. I didn't mean to make the bald assumption that it would certainly be shot down. I'd be surprised, but not shocked if a federal appellate court agreed with your position. But if you're in Stern's chair, are you willing to take that gamble? Not to beat a dead horse, but you're looking at treble damages and probably interest on backpay if you lose.

[NOOOB]

EDIT: After further review, in NBA vs Williams, the Appellate Court's ruling was far more supportive of the lower court's concept than indicated above. Far from shooting down the lower court, it sounds more like an echo.

This is what the Appellate Court said in conclusion:
"We therefore hold that the antitrust laws do not prohibit employers from bargaining jointly with a union, from implementing their joint proposals in the absence of a CBA, or from using economic force to obtain agreement to those proposals."

The words "from implementing their joint proposals in the absence of a CBA" and "from using economic force to obtain agreement" is strong language.

You have to take that quote in context though. "...from implementing their joint proposals in the absence of a CBA". The point of their ruling was that the labor-management relationship continued to exist, post-CBA and post-impasse. Therefore, while yes the CBA had expired, the NBA was found to continue to enjoy the shelter of a labor-management relationship and could indeed "use economic force to obtain an agreement." That was the whole point of their convoluted ruling. The protections of labor law continued to apply even in the absence of the recently expired CBA.

But you've been talking about a brave new world where the labor-management relationship is over. In that case, they are no longer "using economic force to obtain an agreement." They're forcing the players to accept work rules, whether they agree or not.

[DBoys]

I suspect we're heading for a ruling that kills the tactic of "now we're a union, now we're not" that sports PA's want to play. We all can see through it as a sham tactic ...and judges aren't stupid. I wonder if that's where the NBA is aiming with their lawsuit - and if successful, the import would be significant.

[NOOOB]

^Yeah, that's my thought too. The NBA's kind of painted the district court into a corner. They either have to acknowledge that the "now I'm a union, now I'm not, and now I am again" game is a sham, and thus find it to be a bad faith bargaining tactic. Or they have to find that the union must really mean it and they're disbanding for the long haul. If that's the case, there's an awfully compelling basis to conclude that the UPCs, born out of and dependent upon a labor-management relationship, cannot continue to be enforceable.

[DBoys]

^Yeah, that's my thought too. The NBA's kind of painted the district court into a corner. They either have to acknowledge that the "now I'm a union, now I'm not, and now I am again" game is a sham, thus find it to be a bad faith bargaining tactic. Or they have to find that the union must really mean it and they're disbanding for the long haul. If that's the case, there's an awfully compelling basis to conclude that the UPCs, born out of and dependent upon a labor-management relationship, cannot continue to be enforceable.

^^Good insight.