NBA Sues Players’ Union, Reprising NFL

     MANHATTAN (CN) – The NBA and its 30 teams sued the National Basketball Players Association in Federal Court today, trying to stop the players from doing what football players did in their recent fight with the NFL: decertify the union and sue the league on antitrust grounds.

     The National Basketball Players Association and Derek Fisher are the lead defendants in the NBA’s complaint, which the league claims it was forced to file because of “the union’s threatened use of antitrust litigation to extract more favorable terms and conditions of employment in ongoing collective bargaining negotiations with the NBA.”
     The NBA insists, as did the NFL, that its lockout of players does not violation antitrust law, though the players’ decertification of their union, in order to file an antitrust complaint, would.
     “The union has repeatedly asserted that, unless it gets its way at the bargaining table, it will purport to renounce or ‘disclaim interest’ in its role as the exclusive bargaining representative of NBA players, an impermissible bargaining tactic it mistakenly believes would enable it to commence an antitrust lawsuit challenging the legality of the NBA’s ongoing lockout of NBA players and thereby to pressure the NBA to accede to the union’s preferred outcome in collective bargaining. The union’s improper threats of antitrust litigation are having a direct, immediate and harmful effect upon the ability of the parties to negotiate a new collective bargaining agreement. The NBA therefore seeks a declaration that the NBA’s ongoing lockout, which is lawful as a matter of federal labor law, does not violate the antitrust laws.”
     The NBA locked out its players on July 1 when the collective bargaining agreement expired, possibly killing the 2011-2012 season, and perhaps the next one as well.
     The NBA and its players are farther apart than the NFL was with its players.
     In the NFL case, no one disputed that the league and most or all of its teams were making money, and lots of it. The main sticking point was how to split up the billions of dollars.
     But the NBA claims, perhaps in truth, that many of its teams are losing money. The league wants players to agree to reduce their take of revenue, and to impose stricter salary caps, reduce contract lengths and eliminate contract guarantees. The league has said it needs to reduce player salaries by $750 million a year.
     In its 23-page complaint, the NBA mirrors the charges the NFL leveled against its players’ union: that the disbanding of the union, or the threat to do so, will not be done in good faith, but merely to get bargaining power. The NBA says the threat “is designed only to misuse the antitrust laws in an effort to secure more favorable collective terms and conditions of employment and to deny the NBA its right to engage in a lawful lockout.”
     The NBA adds: “The union has threatened to pursue this course not because it is defunct or otherwise incapable of representing NBA players for purposes of collective bargaining, and not because NBA players are dissatisfied with the representation they have been provided by the NBPA or no longer wish to engage in concerted activities in negotiating the terms and conditions of their employment. To the contrary, the NBPA’s threatened ‘disclaimer’ is nothing more than an impermissible negotiating tactic, which the union incorrectly believes would enable it to commence an antitrust challenge to the NBA’s lockout, which the union in turn believes would strengthen its position in negotiations over a renewed labor agreement.”
     The NBA seeks declaratory judgment that its lockout does not violate antitrust laws; “that the Norris-LaGuardia Act deprives the federal courts of jurisdiction to enjoin or restrain the lockout;” and three allied claims. It also seeks certification as a “defendant class action.”
     The NBA’s lead counsel is Jeffrey Mishkin with Skadden Arps Slate Meagher & Flom.

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