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NBA players, owners let the lawyers do the sniping now

Nov 16, 2011, 8:08 AM EDT

Empty Amway Arena Getty Images

There was a pattern to this NBA lockout in the last couple months — not a comfortable one, but a pattern. The NBA and its players union wouldn’t talk for a week or so, then they would have two or three days of wildly intense negotiations. Then it would blow up and they would snipe at each other in press conferences. Lather. Rinse. Repeat.

Now, the NBA union is no more, reduced to a trade organization by disclaimer of interest. The battle has moved to the courts, and now the lawyers are doing the sniping.

Here is what the players lead antitrust attorney David Boies told Ken Berger of CBSSports.com (and the response from the league).

“There’s one reason and one reason only that the season is in jeopardy,” Boies told reporters at the Harlem headquarters of the former players’ union, which was dissolved Monday and reformed as a trade association to pave the way for the lawsuits. “And that is because the owners have locked out the players and have maintained that lockout for several months. … The players are willing to start playing tomorrow if (the owners) end the boycott.”

A statement released by the league office Tuesday night, spokesman Tim Frank said: “We haven’t seen Mr. Boies’ complaint yet, but it’s a shame that the players have chosen to litigate instead of negotiate. They warned us from the early days of these negotiations that they would sue us if we didn’t satisfy them at the bargaining table, and they appear to have followed through on their threats.”

Legally, the players are going after a summary judgment — a quick win based on the facts of the case not a hearing. If the players got that win and were awarded treble damages (three times their lost salary) they would certainly have the leverage they have sought to force the owners not only back to the table but to back off some demands. But it’s a long shot, and the owners could get a summary judgment as well and cut the players off at the knees. There is risk for the players.

The players PR strategy now is a variation of the “let us play” theme — we wanted to play so much we gave up $280 million a season to the owners, covering their losses, but that was not enough. The lawsuit in Minnesota seeks to throw Stern’s tactics right back at him.

The lawsuit quoted Stern’s own demands when he issued two ultimatums to the union during the final week of talks, threatening the players both times to accept the offer (with a 50-50 revenue split and various restrictions on trades and player salaries) or be furnished a worse offer in which the players’ salaries would have been derived from 47 percent of revenues in a system that included a hard team salary cap and rollbacks of existing contracts — all deal points the two sides had long since negotiated past and abandoned.

Asked if Stern made a mistake issuing the ultimatums that ended the talks, Boies said, “If you’re in a poker game and you bluff, and the bluff works, you’re a hero. Somebody calls your bluff, you lose. I think the owners overplayed their hand.”

I’ll agree with that. The problem is the owners’ hand was still a better one than the players’ hand. The players have no leverage. The legal maneuvers are great and all, but at the end of the day the owners and players (an now their lawyers) are going to have to sit down across from each other and negotiate a deal. Like the NFL did. The sooner that both sides of the NBA labor debacle realize that and start trying, the better.

  1. Chris Fiorentino - Nov 16, 2011 at 8:18 AM

    Anyone else find it a little weird that Boies was representing the exact opposite argument when he was working for the NFL during their lockout? Not that it is illegal or wrong or anything…just a little weird is all. I remember him lashing out against the NFL players and absolutely killing Kessler during the NFL negotiations…now he is working with Kessler? Odd.

    http://en.wikipedia.org/wiki/David_Boies

    • hail2tharedskins - Nov 16, 2011 at 9:28 AM

      Yes, I do find it weird. But I think he knows this will not go to trial (there will court rulings on pre-trial motions), so he has been retained for his legal expertise in the area and to guide the players to try to muster as much legal leverage early on to help them negotiate a settlement.

      It is interesting that he argued successfully before the 8th circuit that a lockout arising out of a labor dispute is legal regardless of whether or not a union still existed (or even ever existed), and on day one he said the NBA players would not seek an injunction to end the lockout as he conceeded it was legal. I can’t help but wonder if he would have challenged the lockout if he hadn’t just argued months ago for it. Makes it an interesting choice that the NBA players choose to go with Boies (he is certainly a great attorney, but his hands may be tied by some of his recent arguments)

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