Lead counsel for NBA players' union sheds light on decertification
Players, league will meet for just the second time since the lockout started
Many player representatives have urged the players' association to decertify
Jeffrey Kessler said the NBPA's situation is much different than the NFLPA's
When officials from the NBA and the National Basketball Players' Association met in New York on Wednesday for just the second time since the lockout began on July 1, the topic that might eventually play such a significant part in their negotiations probably never came up -- even if a number of prominent agents wish it would have.
The possible decertification of the union is seen by some player representatives as a badly needed silver bullet -- just the sort of power play they believe their clients need as a means to eventual antitrust lawsuits and, they hope, a favorable collective bargaining agreement. But while the debate can be had as to whether the players should have decertified at the outset of the lockout, union officials have made it clear that it's not currently being considered while their legal focus remains elsewhere.
Union executive director Billy Hunter has been heavily invested in the National Labor Relations Board investigation that, according to SI.com's Zach Lowe, recently concluded after the NBPA filed its claim asserting a lack of good-faith bargaining in early August. The NBA later countered with a suit of its own, making the same assertion against the players. A decision is expected some time next month that will determine what comes next. As a result, the decertification discussion has been put on the back burner because it would effectively erase the union's month's worth of work on the NLRB suit and the possibility of leverage that comes with it.
Yet, while a ruling against the players would clearly raise the decibels of the decertification din, the strategy isn't nearly as simple as some seem to believe. Because the NBA also filed a preemptive federal lawsuit in the U.S. District Court of Southern New York in which it is seeking a ruling that the lockout is legal, it has effectively selected its own advantageous site in the 2nd Circuit just in case this legal battle ensues. As noted by CBSSports.com's Ken Berger recently, the NBA defeated the NBPA in the United States Court of Appeals for the 2nd Circuit when it was attempting to eliminate the salary cap and college draft in 1995.
The NBPA, as a result, still plans to file a motion to dismiss the lawsuit in the coming weeks in order to avoid that particular battleground. A victory is needed before players could proceed with decertification. And lest anyone think the process would speed up from there, some legal experts estimate that the decertification/antitrust lawsuits route could take two years or more to conclude.
Hence, the reason so many NBPA officials have consistently referred to it as the "nuclear" option.
Nonetheless, it will remain a popular topic among some frustrated players and their representatives who are searching for answers and lacking leverage. As such, I checked in with the NBPA's lead outside counsel, Jeffrey Kessler, to discuss the legal tactic for which he is well known for using with the NFLPA.
As written by ESPN.com's Henry Abbott, Kessler is something of a pioneer in the realm of antitrust litigation, and NBA owners seem sure that he'll persuade the NBPA to decertify based on his NFLPA track record alone. He wasn't on hand to contest that claim at Wednesday's meeting -- the only attendees were Spurs owner Peter Holt, Hunter, union president Derek Fisher, NBPA associate general counsel Ron Klempner, commissioner David Stern and deputy commissioner Adam Silver -- but he said the premise is entirely off-base. Kessler spoke with SI.com to shed light on the strategy that, if employed by the union, would lead to many dark days for NBA fans still hoping to save this season.
On the NBPA and whether decertification remains a viable option ...
"I'm not going to reveal specific strategies or considerations or discussions. I cannot do that. What I can say is that the decision to stop being a union is a legal option that is available to the National Basketball Players' Association. They have not made any decision to exercise that option. The option is available and it's something that they might consider in the future depending on the circumstances, or they might not. It will be a decision based on how things develop and what they conclude is in the best interests of the players at that time."
On the key difference between the situations of the NFLPA and NBPA ...
"There's no time parameter [for the NBPA]. There's no issue of having to do it at some particular time. There was such an issue with the NFL. The NFL agreement had a provision that if the players did not exercise the option immediately at expiration, they would have to wait six more months to do so. And so they had to make a decision to either do it immediately or wait six months. But there are no such parameters that affect basketball."
On the possible downside of decertification ...
"The decision to stop being a union is a very difficult decision. Players have to give up many rights. They have to give up the right to collectively bargain. They have to give up the right to invoke the protection of the labor laws. They have to give up the right to regulate agents. They have to give up the right to strike without it being alleged to be an antitrust violation. There are many things you gain by being a union that you lose by making a decision not to be one. So this is not a flippant decision. It's not like sometimes the owners complain, as if it's like turning on and off the light switch. Nothing could be further from the truth. It's a very difficult decision in which you're giving up a whole group of very important rights to the players, which you would only do if you decided that it was more important that the players be able to assert their antitrust rights. So that decision hasn't been made, and it may never been made."
On whether some of the agents who would prefer the NBPA decertify have a valid argument that it's the more advantageous route ...
"What I'm confident of is that the union has studied all these issues extensively, has all the relevant information available and is getting lots of advice from many, many experts on these issues. I trust that the union is making the right decisions based on all that information. I'm not going to speak to any particular agents, but obviously information and experts available to individual agents is much more limited. So they're going to have their perspectives, but their perspectives may not be based on a complete understanding of everything that is going on."
On whether his background should lead people to assume he is pro-decertification ...
"That's sort of an erroneous composition. It is correct that I have been involved in some situations where my clients have advocated or have, in fact, stopped being a union. But I've been representing the National Basketball Players' Association on and off since 1977 and not once during that period of time did the union actually decide to stop being a union. I was directly involved in the last lockout for the NBPA [in 1998-99] and we went through that lockout and ended it without stopping being a union. It's true that I have experience in all situations, but I don't think that's an indicator of what my clients will decide in any particular situation."
On whether he has a sense of which way the union's NLRB case will go ...
"All I can say there is that we're very hopeful the NLRB will make its decision as soon as possible. That's all I'm going to say on that."