NBA files federal lawsuit against players

[killbuckner]

The NBA cannot survive long term without a union unless they contract considerably. If it comes to a choice of a contracted NBA with no union or a NBA with a hard cap I think most players will vote for a hard cap.

They could with revenue sharing. Thats a problem for the owners- not for the players.

[ranger001]

The NBA cannot survive long term without a union unless they contract considerably. If it comes to a choice of a contracted NBA with no union or a NBA with a hard cap I think most players will vote for a hard cap.

They could with revenue sharing. Thats a problem for the owners- not for the players.

Revenue sharing alone will not help since the NBA loses money overall.

Even if they could break even it becomes a problem for the players if the owners refuse to revenue share. Then small market teams will contract and there will be less players. The players will cave when faced with loss of jobs.

[killbuckner]

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.

Whats amazing is that in one paragraph he puts out decertification as a remedy for the players and the next puts a 1 paragraph tack on at the end where he threw it in almost as an afterthought. Here is the complete and total reasoning.

Even under a rule of reason analysis, however, it appears that the Players have failed to show that the alleged restraints of trade are on balance unreasonably anti-competitive. The pro-competitive effects of these practices, in particular the maintenance of competitive balance, may outweigh their restrictive consequences. Indeed, the Salary Cap seems to operate as a mechanism to distribute 53 per cent defined gross revenue to the Players. (Tr. at 108-09). See Mackey, 543 F.2d at 623 ("It may be that some reasonable restrictions relating to player transfers are necessary for the successful operation of the NFL. The protection of mutual interests of both the players and the clubs may indeed require this.").

No analysis of whether the draft, salary cap, and restricted free agency individually would qualify. No analysis on whether other methods could be used for the same goal with things that would be less anti-competitive. I'm pretty disappointed just because I would have enjoyed reading the analysis.

But thanks for the heads up- I will no longer say that no one who has studied the law thinks that the salary cap would be legal in absence of a union.

[NOOOB]

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.

Not sure that's so. It flew under the radar, but the appeals court ruling in the NFL case said in part that when there's a decertification as part of the labor negotiation process, the league has the right to continue acting as if there's a union since what they are doing came from a labor negotiation sequence. That's why the lockout was permissible. Might it also also allow the league to go back to work under unilaterally-imposed rules if an impasse was reached, even if the union had decertified? The logic from that ruling would say yes.

Okay, get ready for a long post (sorry). I didn't have a chance to look for the NFL case out of the 8th Circuit, but I realized that Williams kind of addresses what you're suggesting:

Turning to the precise facts of the present case, the claim that the NBA Teams may not continue to impose the challenged provisions places the Teams in an impossible position. Those provisions were, of course, part of the 1988 CBA, and, under the Teams' obligation to bargain in good faith, they were obligated to maintain the status quo until an impasse was reached. NLRB v. Katz, 369 U.S. 736, 82 S.Ct. 1107, 8 L.Ed.2d 230 (1962). However, appellants claim that imposition of those provisions violated the antitrust laws as soon as the CBA expired, a position that views as illegal, conduct required by the NLRA. Even after impasse, moreover, if employers may impose new terms and conditions of employment, they are surely free to maintain the status quo.

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

Thanks to Killbuckner's having dug up Judge Duffy's original decision, I read through it and saw that a district court in New Jersey agreed, so long as only the status quo is maintained:

Thus, the test that Bridgeman established was that antitrust immunity survives only as long as the employer continues to impose the restrictions unchanged, and reasonably believes that the challenged practice or a close variant of it will be incorporated in the next collective bargaining agreement. Id. at 967.

http://ny.findacase.com/research/wfrmDo ... SNY.htm/qx

What's key from Judge Duffy's decision though, is that he implied the labor-management relationship must remain in place (no decertification) in order for labor law to continue to supersede the Sherman Act:

This does not mean that the Players are "stuck" with these provisions forever. Certainly, they can attempt to bargain these provisions away -- including exerting economic pressure by means of a strike. Or, the Players may request decertification of the NBPA as a collective bargaining agent. I do not mean by this ruling to encourage the Players to decertify their union so that they may bring an antitrust claim. But, decertification is certainly an option the Players have.

On appeal, the 2nd Circuit was silent on the impact of decertification, so I'll assume Judge Duffy's reasoning would stand up today. Unless of course there's a more recent case out of the 2nd Circuit I'm not aware of.

That being the case, if the court enjoins the NBPA from decertifying, the league can end the lockout whenever they want and, at the very least, continue with the status quo for the 2011-12 season. The million dollar question though is whether the league could modify the status quo and impose new restrictions. If you take their claimed losses at face value, they obviously have no interest in continuing to operate under the provisions of the 2005 CBA next year. So could they modify it and impose more league-friendly rules? Williams seems to imply that they could.

[NOOOB]

if I'm the union I'd go back on the offensive and add a ULP claim saying the league's threat to void contracts is a ULP in itself

They already did this- they amended their original complaint to the NLRB to include it.

Where did you read this? If that's the case, Kessler's a pretty sharp guy, IMO.

[NOOOB]

No analysis of whether the draft, salary cap, and restricted free agency individually would qualify. No analysis on whether other methods could be used for the same goal with things that would be less anti-competitive. I'm pretty disappointed just because I would have enjoyed reading the analysis.

After spending all that time talking about the labor exemption his analysis on the Sherman Act was pretty lacking. His reference to the NFL case from the D.C. Circuit was somewhat useful though. I won't post the whole quote, but here's the key language:

No NFL club can produce this product without agreements and joint action with every other team. . . These economic joint venturers "compete" on the playing field, to be sure, but here as well cooperation is essential if the entertainment product is to attain a high quality: only if the teams are "competitively balanced" will spectator interest be maintained at a high pitch.

I can see the argument that restrictions like the cap, RFA, and teams' right to negotiate exclusively with draftees are intended to promote competitive balance, rather than to restrain trade and enhance prices (the 2nd prong of the rule of reason).

I still disagree with him though. Restrictions that limit a player's income and dictate where he lives and works are so severe in my opinion that they outweigh the benefits to competitive balance, applying the rule of reason. When you remove collective bargaining from the picture, you take away the players' consent. At that point, you've got a cartel of super-rich guys trading around less-rich guys like inanimate assets. As lucky as the players are to be able to play professional basketball, I don't think they should have to accept that.

[DBoys]

"Restrictions that limit a player's income and dictate where he lives and works are so severe in my opinion that they outweigh the benefits to competitive balance, applying the rule of reason. When you remove collective bargaining from the picture, you take away the players' consent."

Not really. Pick a different league, if you don't like the rules of this one. This one will assign you to a team and move you from one place to another, at their discretion. (But, you'll get paid more than any intern in another profession, if you pick them.)

"At that point, you've got a cartel of super-rich guys trading around less-rich guys like inanimate assets. As lucky as the players are to be able to play professional basketball, I don't think they should have to accept that."

I totally disagree, and I think you've not thought through the core of the court's reasoning here. Their point is that the league is selling athletic competition, and without it you might have fewer (or no) jobs at all in the place of your choosing. Therefore, they reason, there's nothing wrong with making mechanisms to control player movement part of the framework of jobs that might not exist - or would likely be less lucrative - absent those balancing mechanisms.

We (or the players) could argue that there are other competition-balancing mechanisms, but I think the courts view is that "any reasonable option" suffices from a legal pov. The players have free agency to go to another team after a certain point in their career. And they make a healthy cut of the gross revenue. So they are far from mistreated or enslaved. They merely have limits that are necessary to keep the league more viable ...and frankly, that's more freedom of employment than most of us enjoy.

[killbuckner]

Dboys- the courts have already rejected your reasoning. By your reasoning that the NFL could have kept plan B free agency. They could have kept the reserve clause. If they were considered a single entity then they wouldn't need to negotiate with the players at all and could simply dictate the terms of employment and have complete and total anti-trust immunity.

Since the courts have routinely rejected the single entity status for the NFL and NBA we can safely ignore that. Think about how crappy it would be for an engineer to be told that no firm would hire him unless he got a job with a specific firm in Minnesota. And not only that he would have no options at all to seek employment at another firm unless he spent at least 4 years there. THats what the draft does- and I think the courts will easily see it as an unfair burden placed on the players.

And I still think its highly unlikely that the courts would uphold a salary cap in absence of a union. While I certainly do see the competitive benefits, in a rule of reason test the benefits to competitive balance would be weighed against the anti-competive nature of it. And in this situation the league would be arbitrarily setting the salary cap without any input from the players. (No way would the courts accept a 20 million dollar salary cap as "reasonable") But if the open the door to the league instituting a "reasonable" cap then every single season the players would have a new opportunity to file a lawsuit arguing that this year the cap they set is unreasonable. (and to collect triple damages if it is found to be) I simply don't think that the courts would allow this- the ability for the league to arbitrarily cap what players are allowed to earn is far too severe to outweigh the benefits to competitive balance. Revenue Sharing and a luxury tax to me would be far more reasonable measures to take to ensure competitive balance when the entire weight is not carried by the players.

[DBoys]

1

Dboys- the courts have already rejected your reasoning.

Actually, it doesn't appear they've done any such rejecting once we have looked directly at what the courts have said over the years ...as long as things flow from certain specific circumstances.

The key is that the league has far greater latitude for things flowing from the collective bargaining process ...even when a stalemate happens, or even when a union decertifies as a tactic.

Note that it was this context (unilateral choices flowing from the collective bargaining process) that we were talking about - there was no assertion that a league could simply plop these items into their league in another context.

2 You keep focusing on "single entity" as if it decides things - and the courts have made it clear that defining the single entity issue for a league isn't the bottom line in these situations. Your assertion that "the courts have routinely rejected the single entity status for the NFL and NBA" is not true - they actually did NOT answer the question. But from what they went on to say, it wouldn't matter if they did.

3 I think your arguments about the draft, cap, and so on are logical in some ways and very flawed in others. For example, a better analogy for the draft is like getting an extremely lucrative offer from McDonald's to be a manager, at (and only at) a specific location in Kansas City. If you don't like KC, you can find a different employer besides McD, but perhaps will have to work for much less. McDonald's says that the location in KC has selected you, and if you ever want to work in a McDonald's, you start there until you get some seniority. Now, it's your choice.

Same for a player. If you want to play in the NBA league, you enter by going to the team that has selected you. After 4 years of seniority, you can pick your spot. Or, you can pick another league if you wish.

An added item about a draft - you can dream up all the analogies you want, but given the landscape of USA sports history and the court's recognition of a league having tools for competitive balance, I think you're far off base in thinking courts would tell a sports league they couldn't have a draft to help spread the talent in a talent-balancing way. It's incredibly reasonable. Heck, tens of millions of fantasy football players have drafts this month as their chosen way to balance competition.

4 As to the general issues ....

You and I and others can try to cobble together a different system based on our sense of "fairness" but it's not our business, so in the courts anything reasonable will fly. Not YOUR definition of reasonable, or mine, but a very fuzzy and permissive one.

"No way would the courts accept a 20 million dollar salary cap as "reasonable." ....I agree on $20M being unreasonable. But a different number????

For example, absent a CBA and using today's NBA environment, would the courts accept a hard cap of something in the $50-$60M range with somewhere around a 50-50 split if the league can document that they have been enduring operating losses of $300M a year (using GAAP numbers for their businesses) and this revision gives their owners a reasonable level of profitability? I think that has a good shot of flying.

Also, your renewed attempt at trumpeting treble damages assumes the league doesn't act "reasonably" - but the league would have to act outrageously to cross that line, I think. I think they'd be very careful and cross all their i's and dot all their t's. Ultimately, unilaterally adjusting the numbers to a level that simply lets them have a profit is not unreasonable, if the players won't work with them on that problem and they need to get their businesses back to work.

[killbuckner]

You keep focusing on "single entity" as if it decides things - and the courts have made it clear that defining the single entity issue for a league isn't the bottom line in these situations. Your assertion that "the courts have routinely rejected the single entity status for the NFL and NBA" is not true - they actually did NOT answer the question. But from what they went on to say, it wouldn't matter if they did.

3 I think your arguments about the draft, cap, and so on are logical in some ways and very flawed in others. For example, a better analogy for the draft is like getting an extremely lucrative offer from McDonald's to be a manager, at (and only at) a specific location in Kansas City. If you don't like KC, you can find a different employer besides McD, but perhaps will have to work for much less. McDonald's says that the location in KC has selected you, and if you ever want to work in a McDonald's, you start there until you get some seniority. Now, it's your choice.

Here is where you keep missing the point. McDonalds can do that because it is a single entity. If the league were able to claim single entity status then they could do this- but the courts have repeatedly said that they are not a single entity.

"No way would the courts accept a 20 million dollar salary cap as "reasonable." ....I agree on $20M being unreasonable. But a different number????

For example, absent a CBA and using today's NBA environment, would the courts accept a hard cap of something in the $50-$60M range with somewhere around a 50-50 split if the league can document that they have been enduring operating losses of $300M a year (using GAAP numbers for their businesses) and this revision gives their owners a reasonable level of profitability? I think that has a good shot of flying.

What I am saying is that I don't think the courts would get into the business of "This number is reasonable and this number is not" since it would open the league up to a new anti-trust suit every single year. I'd think the courts would have to either grant the league the ability to set whatever number they want (20 million or even lower) or say that the ability to arbitrarily set a salary cap is an unreasonable restraint on trade and take the ability away. Because I don't think the courts would think a 20 million dollar salary cap is reasonable I'd think they would take the power away completely because it would be a constant ax over the players heads.

Also, your renewed attempt at trumpeting treble damages assumes the league doesn't act "reasonably" - but the league would have to act outrageously to cross that line, I think. I think they'd be very careful and cross all their i's and dot all their t's. Ultimately, unilaterally adjusting the numbers to a level that simply lets them have a profit is not unreasonable, if the players won't work with them on that problem and they need to get their businesses back to work.

No... you don't understand how the law works. It doesn't take going "outrageously" over the line to get triple damages. If a jury found that they league crossed the line at all then triple damages would be awarded. Its how the courts try and stop firms from constantly trying to push the boundaries of the law. Treble damages aren't an extra punishment for people who do things egregiously bad, its how the courts punish teams who make anti-trust violations. And in this situation the league is claiming they want competitive balance but they only want to achieve it in a way where the players bear the entire cost. (As opposed to something like a luxury tax where the owners would literally pay)

[NOOOB]

Not really. Pick a different league, if you don't like the rules of this one.

3 I think your arguments about the draft, cap, and so on are logical in some ways and very flawed in others. For example, a better analogy for the draft is like getting an extremely lucrative offer from McDonald's to be a manager, at (and only at) a specific location in Kansas City. If you don't like KC, you can find a different employer besides McD, but perhaps will have to work for much less. McDonald's says that the location in KC has selected you, and if you ever want to work in a McDonald's, you start there until you get some seniority. Now, it's your choice.

To me, your McDonald’s analogy only works if they are the only member of the fast food industry. Fortunately they're not, so if I don’t want to spend the first four years of my burger career in KC making the $x.xx/hour McDonald’s has dictated to me, I’ll take a look at what each of the many, many other members of the American fast food industry are offering. What would suck for me, however, is if McD’s and the rest of them set up an agreement capping my potential salary and giving McD’s exclusive negotiating rights over me. Assuming I spent my whole life training for my fast-food career, that would be a very disappointing barrier to my access to the industry. My first instinct would probably be to get together with all my colleagues and demand a voice at the industry’s table. . .

Similar to the fast food analogy, what other choice is there to play professional basketball on this continent? The NBA monopolizes the North American market.** Sure, players can go overseas, but is that fair to expect them to? Or more appropriately stated, isn’t the existence of a cartel that controls the entire North American market, unilaterally dictates salaries, and tells players where they will work/live, an unreasonable restraint on their access to the job market and their right to be compensated freely? Importantly, the standard is whether the barrier is “unreasonable” not “absolute.” By pointing out that players can go to other leagues--presumably you’re referring to overseas leagues--you seem to be arguing that the barrier created by the NBA cartel is not absolute, and is therefore okay.



**And rightfully so. The league earned their status through merit-based competition (sorry Continental Basketball Assn).

[NOOOB]

"No way would the courts accept a 20 million dollar salary cap as "reasonable." ....I agree on $20M being unreasonable. But a different number????

For example, absent a CBA and using today's NBA environment, would the courts accept a hard cap of something in the $50-$60M range with somewhere around a 50-50 split

Here's one thought I had. As I previously indicated, my interpretation of 2nd Circuit caselaw is that the league could resume operations post-impasse with new, reasonable rules so long as the union does not/cannot decertify. If that were to happen and the league imposed a $50-60M hardcap, many teams would need to be able to roll-back salaries or amnesty a player to fit under the cap. But if the union hasn't decertified, the league has no basis to even argue that they can tinker with the players' contracts. So, even if deemed reasonable by the court, how do you accomplish a $50-60M hardcap without getting the players to consent to a salary give back and/or an amnesty provision?

[DBoys]

You keep focusing on "single entity" as if it decides things - and the courts have made it clear that defining the single entity issue for a league isn't the bottom line in these situations. Your assertion that "the courts have routinely rejected the single entity status for the NFL and NBA" is not true - they actually did NOT answer the question. But from what they went on to say, it wouldn't matter if they did.

3 I think your arguments about the draft, cap, and so on are logical in some ways and very flawed in others. For example, a better analogy for the draft is like getting an extremely lucrative offer from McDonald's to be a manager, at (and only at) a specific location in Kansas City. If you don't like KC, you can find a different employer besides McD, but perhaps will have to work for much less. McDonald's says that the location in KC has selected you, and if you ever want to work in a McDonald's, you start there until you get some seniority. Now, it's your choice.

Here is where you keep missing the point. McDonalds can do that because it is a single entity. If the league were able to claim single entity status then they could do this- but the courts have repeatedly said that they are not a single entity.

"the courts have repeatedly said that they are not a single entity"

You keep ignoring the point, that the courts have NOT done this. Just because you say it, and say it, and say it, doesn't make it so. When you use this as part of your reasoning - a pojnt that isn't true - then your argument fails.

In addition, the Supreme Court of the United States has made the point that "single entity or not" is NOT something that must be decided or asserted, in order for sports leagues to have wide latitude.

[DBoys]

NOOOB ...Re using a McD analogy, I think your objection was valid 5-10 years ago, but I doubt whether it would be useful today. Basketball is an international industry, and it's clearly a falsehood to argue that the players don't have choices apart from playing in the NBA. I think the fact that these choices are outside the US would be deemed irrelevant in light of the fact that the reach and lifestyle of a pro player is international not local.

[DBoys]

"No way would the courts accept a 20 million dollar salary cap as "reasonable." ....I agree on $20M being unreasonable. But a different number????

For example, absent a CBA and using today's NBA environment, would the courts accept a hard cap of something in the $50-$60M range with somewhere around a 50-50 split

Here's one thought I had. As I previously indicated, my interpretation of 2nd Circuit caselaw is that the league could resume operations post-impasse with new, reasonable rules so long as the union does not/cannot decertify. If that were to happen and the league imposed a $50-60M hardcap, many teams would need to be able to roll-back salaries or amnesty a player to fit under the cap. But if the union hasn't decertified, the league has no basis to even argue that they can tinker with the players' contracts. So, even if deemed reasonable by the court, how do you accomplish a $50-60M hardcap without getting the players to consent to a salary give back and/or an amnesty provision?

Are you seriously saying that you can't see any way the league couldn't unilaterally find a solution that (a) is close to the present system where the players are still paid a strong share of revenues, (b) leaves current contracts intact, and (c) over time creates a cap setup that ensures a reasonable degree of profitability for owners? With no one's help, I could invent tons of such solutions, and I suspect lots of people in this forum could as well. The NBA isn't dumber than we are on these types of things.

Finding some flaw in my quick illustration does not make the general concept unworkable. It just means they'd have to spend more time on the details than the 30 seconds I gave it for my post.

[DBoys]

"No way would the courts accept a 20 million dollar salary cap as "reasonable." ....I agree on $20M being unreasonable. But a different number????

For example, absent a CBA and using today's NBA environment, would the courts accept a hard cap of something in the $50-$60M range with somewhere around a 50-50 split if the league can document that they have been enduring operating losses of $300M a year (using GAAP numbers for their businesses) and this revision gives their owners a reasonable level of profitability? I think that has a good shot of flying.

What I am saying is that I don't think the courts would get into the business of "This number is reasonable and this number is not" since it would open the league up to a new anti-trust suit every single year. I'd think the courts would have to either grant the league the ability to set whatever number they want (20 million or even lower) or say that the ability to arbitrarily set a salary cap is an unreasonable restraint on trade and take the ability away. Because I don't think the courts would think a 20 million dollar salary cap is reasonable I'd think they would take the power away completely because it would be a constant ax over the players heads.

I absolutely think you're wrong here.

The courts indeed use a standard of reasonability (read court decisions, if you doubt it) and "reasonable" allows you lots of latitude, if you are making an attempt to be fair. Reasonable is going to be attainable if you use the framework of prior NBA-union agreements, against the backdrop of profit-loss limitations. And if there's truly a lingering question of where the line is, the league would petition the court for a special master as they set the rules, who would basically be a court-appointed expert who can stamp "okay" on the rules so that they aren't subject to perpetual lawsuits.

[NOOOB]

NOOOB ...Re using a McD analogy, I think your objection was valid 5-10 years ago, but I doubt whether it would be useful today. Basketball is an international industry, and it's clearly a falsehood to argue that the players don't have choices apart from playing in the NBA. I think the fact that these choices are outside the US would be deemed irrelevant in light of the fact that the reach and lifestyle of a pro player is international not local.

I don't think either one of us can technically be correct or incorrect on this particular point. Your definition of a reasonable restraint on market access, or what you think a court in the 2nd Circuit would deem reasonable, can differ from mine and that doesn't make you an irrational person. If such thing as a universal standard could be established, there'd be no need for jury trials and the Supreme Court would be unanimous more often than not.

With that in mind, I don't know what your line of work is but I'm sure there's a market for what you do outside of the U.S. If the entire domestic industry you work in banded together and unilaterally imposed employment terms you find unacceptable, is it reasonable for me to simply tell you to leave the country then? Particularly when there might be rules outside the U.S. limiting the number of jobs that can be given to Americans?

But again, I only raise this as a point of discussion. You can disagree and not be wrong. For example, I think the argument that a cap and a draft are essential to competitive balance, which is healthy for the league, is very compelling. For reasons I've already stated, however, I don't believe it's compelling enough. Many, but not all reasonable minds would agree with my conclusion. Many would agree with yours.

[NOOOB]

"No way would the courts accept a 20 million dollar salary cap as "reasonable." ....I agree on $20M being unreasonable. But a different number????

For example, absent a CBA and using today's NBA environment, would the courts accept a hard cap of something in the $50-$60M range with somewhere around a 50-50 split

Here's one thought I had. As I previously indicated, my interpretation of 2nd Circuit caselaw is that the league could resume operations post-impasse with new, reasonable rules so long as the union does not/cannot decertify. If that were to happen and the league imposed a $50-60M hardcap, many teams would need to be able to roll-back salaries or amnesty a player to fit under the cap. But if the union hasn't decertified, the league has no basis to even argue that they can tinker with the players' contracts. So, even if deemed reasonable by the court, how do you accomplish a $50-60M hardcap without getting the players to consent to a salary give back and/or an amnesty provision?

Are you seriously saying that you can't see any way the league couldn't unilaterally find a solution that (a) is close to the present system where the players are still paid a strong share of revenues, (b) leaves current contracts intact, and (c) over time creates a cap setup that ensures a reasonable degree of profitability for owners? With no one's help, I could invent tons of such solutions, and I suspect lots of people in this forum could as well. The NBA isn't dumber than we are on these types of things.

Finding some flaw in my quick illustration does not make the general concept unworkable. It just means they'd have to spend more time on the details than the 30 seconds I gave it for my post.

Regarding (a), I didn't comment on the players' share of revenues since that's something dictated by the CBA, and not their individual contracts as far as I know.

Turning to whether the NBA could unilaterally impose a relatively low hard cap, while still leaving current contracts intact: I don't know. That's why I posed the question to you, or whomever else might be interested in posting a response. I certainly wasn't saying that the league couldn't come up with something. I also wasn't trying to poke a hole in your illustration or the general concept you were floating.

[NOOOB]

"No way would the courts accept a 20 million dollar salary cap as "reasonable." ....I agree on $20M being unreasonable. But a different number????

For example, absent a CBA and using today's NBA environment, would the courts accept a hard cap of something in the $50-$60M range with somewhere around a 50-50 split if the league can document that they have been enduring operating losses of $300M a year (using GAAP numbers for their businesses) and this revision gives their owners a reasonable level of profitability? I think that has a good shot of flying.

What I am saying is that I don't think the courts would get into the business of "This number is reasonable and this number is not" since it would open the league up to a new anti-trust suit every single year. I'd think the courts would have to either grant the league the ability to set whatever number they want (20 million or even lower) or say that the ability to arbitrarily set a salary cap is an unreasonable restraint on trade and take the ability away. Because I don't think the courts would think a 20 million dollar salary cap is reasonable I'd think they would take the power away completely because it would be a constant ax over the players heads.

I absolutely think you're wrong here.

The courts indeed use a standard of reasonability (read court decisions, if you doubt it) and "reasonable" allows you lots of latitude, if you are making an attempt to be fair. Reasonable is going to be attainable if you use the framework of prior NBA-union agreements, against the backdrop of profit-loss limitations. And if there's truly a lingering question of where the line is, the league would petition the court for a special master as they set the rules, who would basically be a court-appointed expert who can stamp "okay" on the rules so that they aren't subject to perpetual lawsuits.

I don't think Killbuckner was saying that a reasonability standard would not be applied by a court. My reading was that he believed courts would prefer to not get into dictating specific numbers. Rather, they'd simply weigh in on whether the concept of having a salary cap is a reasonable restraint on trade, rather than whether the specific figures outlined in the cap are reasonable. If that is what he was saying, then I agree on that point.

That, of course, is limited to the context of a non-labor/management system where the court is applying the rule of reason to see if the Sherman Act has been violated. If we're talking about temporary rules imposed after an impasse, while the labor-management structure is still intact, maybe the court would weigh in on what specifically the league can do before it has gone too far. A special master might be appointed, or if it's something as simple as a reasonable cap figure, the court could consider expert testimony from both sides and reach its own conclusion.

[DBoys]

NOOOB ...Re using a McD analogy, I think your objection was valid 5-10 years ago, but I doubt whether it would be useful today. Basketball is an international industry, and it's clearly a falsehood to argue that the players don't have choices apart from playing in the NBA. I think the fact that these choices are outside the US would be deemed irrelevant in light of the fact that the reach and lifestyle of a pro player is international not local.

I don't think either one of us can technically be correct or incorrect on this particular point. Your definition of a reasonable restraint on market access, or what you think a court in the 2nd Circuit would deem reasonable, can differ from mine and that doesn't make you an irrational person. If such thing as a universal standard could be established, there'd be no need for jury trials and the Supreme Court would be unanimous more often than not.

With that in mind, I don't know what your line of work is but I'm sure there's a market for what you do outside of the U.S. If the entire domestic industry you work in banded together and unilaterally imposed employment terms you find unacceptable, is it reasonable for me to simply tell you to leave the country then? Particularly when there might be rules outside the U.S. limiting the number of jobs that can be given to Americans?

The reason I think that the labor market for basketball players is different from yours and mine - and therefore the "labor competition" issue would be treated differently by the courts - is because that's exactly what is happening. The alternate market for players is there, as evidenced by the fact that players of all ability levels are looking there for possible employment the first day after the NBA shuts down. They're not forced to look to McDonald's, Merrill Lynch, or some other job outside the basketball profession, and they clearly have the means and opportunity if they want to take it.

They are INTERNATIONAL players with an INTERNATIONAL market. For the normal person in a different industry, I think different rules would apply because they do not operate internationally.

PS - This isn't just my thought. The courts have already addressed this to a degree and made it part of their reasoning, the idea that the marketplace for employment in a certain sport can be international and therefore preclude a singular league in the US from actually being a monopoly that has to run scared of antitrust issues.