Decertification: NBA players' nuclear option

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by Jon Krawczynski

The NBA’s owners and players are preparing to climb into the ring once again in their ongoing labor fight, and the latest round is shaping up as the most divisive yet.

The two sides are scheduled to meet Saturday in New York with talks at a standstill, a group of players threatening to disband the union and a section of owners digging in their heels on what they’re willing to offer to get a deal done.

Only one thing appears certain — the threat of losing the 2011-12 season has never been greater.

About 50 players held two conference calls this week to discuss decertification because they are unhappy with negotiations for a new collective bargaining agreement. According to some labor law and antitrust experts, a vote to dissolve the union could destroy hopes for even a shortened season.

The move could swing some negotiating leverage to the players, antitrust attorney David Scupp said Friday. But he added that taking the fight to court through an antitrust lawsuit also would make it difficult to resolve the matter in time to have a season.

“Once you get the courts involved and you end the collective bargaining process, it does slow things down and it does make it a little bit more complicated,” said Scupp, who works at New York-based law firm Constantine Cannon.

The first month of the NBA season, originally scheduled to tipoff Tuesday, already has been canceled, with more games on the chopping block if an agreement is not reached soon.

Decertification talk bubbled to the surface this week amid reports that union president Derek Fisher and executive director Billy Hunter are not seeing eye to eye. The union spent most of Thursday trying to project a united front even as that group of players worked behind the scenes to build momentum to eliminate the union.

The owners also show signs of not being on the same page. Miami Heat owner Mickey Arison was fined last week for hinting on Twitter that he was ready to get a deal done while several smaller-market owners are said to be holding out for more concessions from the players. The owners are scheduled to meet Saturday before resuming negotiations to affirm their bargaining position, a person with knowledge of the meeting told The Associated Press. The person requested anonymity because he was not authorized to speak publicly about the meeting.

At issue from the beginning has been the division of about $4 billion in basketball-related income, along with a system makeover that Commissioner David Stern insists must happen to fix what he considers a broken economic model.

Owners are determined to reshape the league by creating a system like the NFL or NHL, where spending is capped and small-market teams truly can compete with the big boys. But reforming the NHL’s financial structure required a lengthy lockout, wiping out the entire 2004-05 season. And the NFL is making money, not losing it.

The players have offered to reduce their share of revenue from 57 percent to 52.5 percent, a concession they feel is more than enough to cover their end of the league’s stated $300 million in annual losses. Owners have offered a 50-50 split, along with significant changes to the system that include a more punitive luxury tax on teams that exceed the salary cap, shorter contracts and a lower mid-level exception.

That 50-50 split is unacceptable to the players, as well as some owners.

The New York Times reported Friday that a group of 10-14 owners, led by Charlotte’s Michael Jordan, was upset that players were offered a 50-50 split and want the players’ share to be no higher than 47 percent.

During the NFL lockout this summer, the NFLPA did decertify, which allowed a group of NFL players to file an antitrust lawsuit against the league.

Sports leagues are granted exemptions to U.S. antitrust laws that prohibit staples to their economic models such as salary caps and college player drafts because they are agreed upon under collective bargaining. If there is no union, there is no collective bargaining, and leagues are not eligible for exemptions.

“It gave the NFL players another weapon,” said John Hancock, a labor law expert with the Detroit firm of Butzel Long. “It did give the players something more to hold on to. But ultimately, both sides just got together and decided, ‘This is silly. We don’t have any life-or-death issues. Why are we doing this?”

Whereas NFL players and owners were fighting over how to split billions of dollars of revenue, the NBA says it lost $300 million last season and that only eight of its 30 clubs made money.

“Here you have a whole different ballgame because they do have life-and-death issues,” Hancock said.

Pittsburgh Steelers safety Ryan Clark said he believes disbanding the union helped the NFL players.

“It’s not going to help them, though,” Clark said. “Their owners are really losing money. Our owners weren’t.”

NBA players need 30 percent of their membership to sign a petition saying they no longer wish to be represented by a union, which would be submitted for approval to the National Labor Relations Board. The NLRB then would conduct a vote, which would require 226 players to approve the decertification.

NFL players took this vote in advance of being locked out. NBA players, however, have negotiated for months as a union with the owners and would be seeking to disband in the heart of the talks.

“It’s going to be very, very difficult at this late stage, after six months of talks and bargaining, to say we’re no longer a union,” Hancock said.

Even if players do go forward with decertification, their chances of success in the courtroom could be harmed by the NFLPA’s experience there this summer. A federal judge in St. Paul, Minn., initially ruled that the NFL union’s antitrust case had merit and issued an injunction that forced the league to lift the lockout.

But that ruling was overturned on appeal to the 8th U.S. Circuit Court in St. Louis, and the two sides came to agreement on a new deal in July after losing only one preseason game.

“Given what happened over the summer with the NFL players, the NBA players have an uphill battle toward getting the lockout (lifted),” Scupp said.

The NBA already has filed a lawsuit seeking to retain their antitrust exemption even if the players dissolve the union. Federal Judge Paul Gardephe did not immediately issue a ruling when the two sides met in court this week.

While both players and owners have expressed a desire to play this season, both sides also are determined to get a “fair” deal — at any cost.

“This particular collective bargaining agreement will forever impact the circumstances of NBA basketball players,” Hunter said earlier this week. “We can’t rush into a deal we feel is a bad deal just to save this season.”
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AP Sports Writer Tim Reynolds in Miami and AP freelance writer Chris Adamski in Pittsburgh contributed to this report.

Copyright 2011 The Associated Press.