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Talk about decertifying NBA players' union surfaces

With labor negotiations set to begin again Saturday, a potential legal maneuver by players is designed to put more pressure on owners.

November 04, 2011|By Mike Bresnahan
  • Lakers point guard Derek Fisher, president of the NBA players union, speaks during a news conference on Oct. 20. Some NBA players want to decertify the union in an effort to put more pressure on team owners in labor negotiations.
Lakers point guard Derek Fisher, president of the NBA players union, speaks… (Patrick McDermott / Getty…)

Just in case the negotiations between NBA players and owners this weekend needed added pressure ...

Frustrated by the lack of progress in talks to end the 127-day lockout, some players are considering an appeal to the National Labor Relations Board to decertify the National Basketball Players Assn., an extreme legal step that could take months to sort out and would threaten the entire 2011-12 NBA season.

If the union decertifies, players could then sue the NBA under U.S. antitrust laws. They would be likely to claim the league conspired to deny their ability to market themselves by locking out players when the collective-bargaining agreement expired July 1.

"Hanging over the heads at the parties at the bargaining table this weekend is this threat of nuclear warfare," said Bill Gould, a Stanford law professor and former NLRB chairman who wrote the book "Bargaining with Baseball."

"If that threat is used, the odds are in favor of blowing up the entire season."

Gould said a decertification effort would take until at least January to receive "definitive resolution" from a judicial process that would involve a circuit court in New York and then, probably, an appeals court.

Based on the last NBA lockout in 1998-99, the first week of January would be the latest possible deadline for an agreement to save the season, and a 50-game schedule could then begin in early February.

The threat of decertification might move owners to a quicker resolution. At least, that's what players hope.

Talks on a new collective-bargaining agreement have broken down in each of the last two weeks, though the parties are set to try again Saturday in New York. The NBA has canceled the first month of the season, and further cancellations are expected if a deal isn't reached soon.

The process of decertification isn't simple.

Thirty percent of the NBA's 439 players would have to sign a petition to decertify. Then the NLRB would preside over a vote by players, with decertification taking place if more than half the players agreed.

How much will NBA owners be affected by the cloud of decertification?

"The players are going to try and do this to get some leverage to scare the owners," said an official familiar with the negotiations who was not authorized to speak publicly. "But I don't think they scare easily."

Owners are demanding a 50-50 split of league revenue. Players want 52% of basketball-related income after getting 57% last season.

A move to decertify the union would mark the second time this year it happened in a major pro U.S. sport.

In March, the union representing NFL players decertified when 17 days of negotiations with a federal mediator failed to lead to a collective-bargaining agreement between owners and players.

Shortly thereafter, a group of players that included Tom Brady, Drew Brees and Peyton Manning filed an antitrust lawsuit against the league in U.S. District Court. The players alleged that the NFL conspired to deny them the ability to "produce and/or market their services."

The 52-page lawsuit took almost four months to work its way through the courts before the parties agreed in July to a 10-year labor deal. Players quickly voted to recertify the union, all litigation was dropped against the NFL, and the 136-day lockout ended without the cancellation of any regular-season games.

The luxury of time, however, isn't present in the NBA negotiations.

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