Why Hasn’t the NBPA Decertified as a Union?

Why hasn’t the NBPA decertified as a union and pursued antitrust remedies to end the NBA lockout?

The lockout began on July 1, 2011.  Since then, some progress toward achieving a new collective bargaining agreement has been made.  However, the progress has been slow and steady, with neither side willing to make major concessions.  The slow nature of the negotiations is seen in the fact that the first month of the season has been canceled by NBA Commissioner David Stern.  Thus, players began missing their first round of paychecks this week.  Since games have been canceled without any sign that they will be made up in the future, the players have effectively permanently lost the associated paychecks.

Thus, it is not unreasonable to question why the NBPA has not disbanded its union to pursue another course of action (an antitrust lawsuit, which is only available to the players if they are not joined as a union) to get them back onto the court in a timely fashion.

Likely, there are several reasons why the NBPA has not decertified.  The first two are what I call “perfect world” scenarios, while the third is likely the real reason why their outside counsel team, led by Jeffrey Kessel, has not yet advised the union to decertify.

1.  Pride

The NBA has locked out its players three times:  in 1995, 1998 and now in 2011.  However, never once in its history, has the NBPA decertified as a union.  Thus, the NBPA and NBA have previously always been able to settle their labor disputes through negotiation, without having to involve the courts through the pursuit of antitrust remedies.

Therefore, it is plausible that there is a pride issue at stake when considering why the NBPA has not yet decertified as a union.

There is something to be said of the fact that the NBPA has never decertified.  Many will remember that recently, the NFLPA decertified early on in its recent labor dispute with the NFL.  To some, this signaled the weakness of the NFLPA’s bargaining power, in that it had to rely on outside help from a court to achieve a new collective bargaining agreement.

Thus, it’s plausible that the NBPA is prideful in its success in negotiating new collective bargaining agreements with the NBPA.  Attorneys know that oftentimes, a client’s pride in one arena or another limits the decisions it is willing to make with respect to a case.  Therefore, it would not be shocking to learn that Billy Hunter, Derek Fisher and the NBPA’s team do not want to decertify the union so as to not be the first men to disband a union that has historically had strong bargaining power.

2.  Belief

Closely associated with pride, is belief.  Arguably, the players have such a strong belief in the bargaining capabilities of the NBPA and its officials that they do not feel it is necessary to disband the union and pursue antitrust remedies to end the lockout.

Although there have been recent mumblings that Billy Hunter and Derek Fisher have not been seeing eye-to-eye as of late (an accusation both men deny), throughout the first four months of the lockout, the NBPA and players have set forth an image of solidarity.  This solidarity is best depicted by the fact that the only cries for decertifying the union were made by player agents, and not the players themselves.  To date, there has not been a single player who has publicly questioned the negotiation strategy of the NBPA.

That the players have not questioned the negotiation strategy of the NBPA is impressive.  That is not to say that the NBPA’s strategy is weak, but rather, that this has been a slow process.  Definitive movement has been made, though, as seen in the fact that the owners have come up at least three percent in the amount of basketball-related income they are willing to grant players.

Therefore, it is very likely that the NBPA’s belief in its own bargaining power is largely driving its disinterest in decertification.

3.  Lawsuit

Pride and belief are nice, but no lawyer advises his client to pursue a course of legal action on pride and belief alone.

Therefore, it’s more likely that the NBPA has not decertified because their legal counsel has advised them not to.

And the reason for this is clear.

In August, the NBA filed a lawsuit in federal court seeking declarations that the lockout is legal and protected from antitrust attack.  At the crux of the NBA’s lawsuit, was its belief that the NBPA was going to decertify as a union ans pursue antitrust remedies.

Arguably, the NBA’s lawsuit was a preventative measure.  The NBA’s lawyers are greatly familiar with the NBPA’s lead outside counsel, Jeffrey Kessler.  The two sides faced off earlier this year during the NFL lockout, with the NBA’s lawyers representing the NFL and Kessler representing the NFLPA.  In fact, the two lawyer teams have an extensive history, as they have represented their respective clients in all of their labor disputes in recent years.

Thus, because Kessler quickly advised the NFLPA to decertify and filed an antitrust lawsuit in the name of Tom Brady, it arguably was not unreasonable for the NBA’s legal team to believe he would pursue the same course of action with the NBPA.  However, the NBA’s legal team should have looked at the NBPA’s negotiation history to realize that the union has never disbanded (even under Kessler’s counsel) and hence, would be unlikely to do so (at least early on) during the current lockout.

In response to the NBA’s lawsuit, the NBPA filed a motion to dismiss, which will be ruled on today.

As noted above, the NBA is seeking a declaratory judgment in its lawsuit.  In order for a court to issue a declaratory judgment under 28 U.S.C. section 2201, an “actual controversy” must exist.  A “precise test” does not exist for determining what constitutes an “actual controversy.”  However, the United States Supreme Court has found that in determining whether an “actual controversy” exists, “. . . the question. . . is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issue of declaratory judgment.”  Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273 (1941).

In this instance, the best weapon Kessler and the NBPA have in their arsenal in arguing to move to dismiss the lawsuit, is that the NBPA has not decertified.  Thus, there is not a substantial controversy of sufficient immediacy to warrant the court to declare that the NBA lockout is legal.  This is because the NBPA has not questioned the legality of the lockout, since it has not decertified to pursue antitrust remedies which would in effect, question the legality of the lockout.

Therefore, more likely than not, the NBPA has not decertified because its lawyers have told it not to.

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