Posted: Thursday June 30, 2011 1:47PM ; Updated: Thursday June 30, 2011 4:40PM
Michael McCann
Michael McCann>SPORTS LAW

Top questions as lockout looms

Story Highlights

The current NBA CBA expires at midnight and a lockout appears all but certain

Players have two basic options in lockout: continue negotiations or decertify union

Owners' weapon is lockout as players may compromise when funds run dry

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Union chief Billy Hunter said a lockout
Union chief Billy Hunter said a lockout "will happen" after the two sides failed to reach an agreement Thursday.
Lucas Jackson/Reuters

Union chief Billy Hunter said Thursday afternoon that "the lockout will happen tonight" after players and owners failed to reach a new collective bargaining agreement. With the current CBA set to expire at midnight tonight, here are the most pressing issues facing the league.

1) What does a lockout mean?

It would mean that the NBA and its teams have withheld (suspended) the employment of its players, and have done so to persuade the players to accept a new CBA. A lockout is the NBA's most powerful bargaining tool. During the lockout, players would not be paid by their teams, nor would they be entitled to other benefits of employment, such as health care, use of team facilities or sponsored travel. Teams would be similarly barred from interacting with players, which means no trades, signings, meetings, practices or games. With most basketball activities frozen, some teams might downsize their staffs, though certain activities, such as scouting of college basketball and international players, would continue.

NFL players and NFL teams already know of these consequences. Save for between April 25-29, during which U.S. District Judge Susan Nelson lifted the NFL's lockout, NFL players have been barred from working for their teams since March 11. Absent an unlikely development later today, NBA players will soon be in the same position: prohibited from showing up for work and enjoying the benefits of their employment.

2) When could the NBA lockout the players?

Once the clock strikes midnight tonight, the CBA will expire and the NBA can lock out the players. Expect the NBA to announce a lockout almost immediately after midnight.

3) Does a lockout have to happen after the CBA expires?

No. While the deadline is just hours away, the NBA and the players' association could agree to extend the current CBA to a later date, perhaps July 10 or July 15. For at least two reasons, they would only do so if they are within striking distance of a deal.

For one, the NBA's best bargaining tool is clearly the lockout. The league may be unwilling to opt for an extension, even a temporary one, if no deal is reachable. The league has also shown a willingness to use the lockout. It locked out the players for four months in 1995, for a couple of hours in 1996, and for over six months between 1998 and 1999. A lockout is thus well chartered territory for NBA commissioner David Stern and many NBA owners.

Second, unless the NBA and players agreed otherwise, delaying the CBA's expiration would mean that free agency would begin tomorrow and presumably under the terms of the current CBA. Teams, however, would be uncertain of inevitable changes to salary cap and free agency rules in a new CBA, and that could lead to an awkward free agency period.

The NBA could also offer to play the 2011-12 NBA season under the terms of the current CBA, provided the players agree to not go on strike or commence any litigation. The NBA played the 1982-83 and 1994-95 NBA seasons under the terms of expired CBAs and ultimately obtained new CBAs that largely favored league interests. Don't expect that script to play out this time around, however, as the league, which maintains that 22 of the 30 teams are losing money, is clearly dissatisfied with the current CBA and does not want to play another season under it.

4) What options would players have if they are locked out?

The players would have two basic options:

First, through the players' association, negotiations for a new CBA could simply continue in earnest, including with assistance from a federal mediator. Both sides have already made significant concessions, and if each believes that additional concessions can produce a deal, they could negotiate through the summer in hopes of striking a deal that would save the 2011-12 NBA season. The players' association followed this path when the NBA locked them out between July and September 1995. While a group of star players tried to incite a decertification movement, the players' association remained certified and ultimately worked out a deal with the NBA. The 1995-96 NBA season was played in its entirety.

While negotiating for a new CBA, the players' association could also continue to pursue the unfair labor practices charge it filed in May with the National Labor Relations Board. In its charge, the players contend that the NBA, by seeking considerable concessions from the players, refuses to bargain in good faith. As I explained in a previous column, the NLRB is unlikely to act on the charge for months.

Decertification (or, at least initially, disclaimer of interest) followed by antitrust litigation is the players' second option. The union could announce that it is disclaiming interest in representing NBA players in their employment with the NBA and its teams. Without a players' association representing them, NBA players would become individual contracting parties (as opposed to members of a collective bargaining unit). Of greatest legal significance, various restrictions on competition -- such as maximum player salaries or the NBA draft -- would suddenly become subject to federal antitrust law. Decertified players would be poised to follow the Tom Brady et. al v. NFL lawsuit and file a class action antitrust lawsuit against the NBA in federal court.

Should they pursue antitrust litigation, expect NBA players to seek redress in a more favorable federal circuit than the U.S. Court of Appeals for the Eighth Circuit, which has sided in the NFL's favor on similar antitrust issues. With NBA teams all over the country, players could file a claim in several other federal circuits, including the Ninth Circuit, which has jurisdiction over Arizona, California and Oregon, among other Western states, and which is generally considered pro-employee and pro-labor in its decision-making. Then again, decisions by the Ninth Circuit are reversed by the U.S. Supreme Court at a higher rate than any other federal circuit; still, the Ninth Circuit would likely be a better forum than the Eighth Circuit.

5) Are there risks to decertification for the players?

Yes. Decertification is a major step and one that NBA players have never taken. While decertification would enable NBA players to pursue antitrust litigation, perhaps in a more favorable forum than experienced by NFL players, it would be accompanied by at least three risks.

First, antitrust litigation could make an agreement between the owners and players less likely to emerge in the coming weeks or months. The litigation would be contentious and import litigators, judges and courts into what has been a relatively private process between owners and players. Consider the NFL's situation -- real progress has been made in recent weeks because the leaders of the NFL and NFL players have sat down and talked in private; the weeks of contentious hearings before various federal judges in Minnesota and St. Louis seemed to only raise the tension level and impede agreement.

Second, the litigation may not succeed. As I explained in a previous column, NBA players arguably have weaker legal arguments than NFL players in trying to lift a lockout, and NFL players have thus far failed in their attempts. Lockouts, moreover, are generally legal, particularly if the employer can show that their motivations to conduct a lockout are to increase their bargaining power rather than to illegally interfere with union activity.

Third, decertification carries the danger of some players, who would be free of union rules, abandoning antitrust litigation against the league and instead acting as individual parties or factions of players, with their own advisors and strategies. They could then attempt to work out a deal with the NBA and try to recertify the players' association with a majority of players supporting them, but with different leadership in place.

Keep in mind, while players appear very unified in the current dispute, they have not always acted as one entity. In 1995, for instance, a group of star players, including Michael Jordan and Patrick Ewing, tried to convince other players to decertify the union. They were unsuccessful and the majority of players decided to enter into a new CBA with the league, but there exists the possibility of factions emerging without a players' association.

 
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