NEW YORK — There’s a new David in town, possibly a worthy adversary of the other David, aka Commissioner Stern.
This is a copy of the lawsuit filed Tuesday in U.S. District Court by David Boies, the temporary de-facto leader of what used to be the National Basketball Players Association. In court lingo, it will be called Anthony v. NBA. (Yes, Carmelo is Tom Brady 2.0)
In case you missed it, I was at union (trade association?) headquarters in Harlem last night as Boies spoke to a group of writers who have been closely covering the NBA lockout. Click here to link to the story I wrote last night on Boies saying he is calling David Stern’s bluff.
If somebody wants to call Boies’ bluff, they can cite two quotes from his argument in Brady v. NFL, in which he represented the owners, not the players.
This is from a brief filed in the NFL anti-trust lawsuit after pro football players decertified their union:
“The law is not so easily manipulated. One party to a collective bargaining relationship cannot, through its own tactical and unilateral conduct, instantaneously oust federal labor law or extinguish another party’s labor law rights. A union cannot, by a tactical declaration akin to th flip of a switch, transform a multiemployer bargaining unit’s lawful use of economic tools afforded it under labor laws into an antitrust violation giving rise to treble damages and injunctive relief.”
Later in that same brief, Boise argues:
“When federal labor policy collides with federal antitrust policy in a labor market organized around a collective bargaining relationship, antitrust policy must give way. Accordingly, employees confronted with actions imposed lawfully through the collective bargaining process must respond not with a lawsuit brought under the Sherman Act, but rather with the weapons provided by the federal labor laws.”
Question/Scenario
If you were David Boies what would you do in order to best represent your clients (obviously these are opinions and not legal briefs so take it with a grain of salt)? Please justify your reasoning a bit.
Personally I agree with the current actions taken as I believe the threat of a lost season brings leverage and increases the odds of flipping a moderate owner currently siding with the hardliners. By my account they would need a couple teams to switch to the Buss, Cuban, Arison, Dolan side and have the majority required to vote a deal through right now. I also wouldn’t be suprised if the Buss, Cuban etc. side began pushing their weight around soon because they would all probably lose over 100 Mill each in TV revenue alone. I also believe there is a decent chance of the players winning their lawsuit if they are rejected from the 8th circuit in CA. If the courts accept their lawsuit in the 8th circuit I believe that there is a very good chance that the players win. We should all hope this happens as it’ll force the owners to concede more and get a season in.
Obviously the best thing for the league was having a full season or a 72 game season .
I have no idea why the players didn’t just throw out a counter proposal and release it to the pubic. Put the onus back on the NBA and see if the owners would in fact revert back to their position to put the season in jeopardy. People keep saying it, but if they really wanted to try and gain leverage the timing on filing for disclaimer of interest is very poor.
I guess we’ll see how willing the owners are to losing not only this season put potentially a second during litigation.
I had expressed the same suggestion that it would have been better (i think) to counter, regardless of the posturing from Stern. The NBA made their offer public. The players and union reps have been sending out all kinds pleas for public support. Well, why don’t they counter Stern’s public declaration of offer, with a public counter offer? Do they fear losing public support?
What happens to the NBA is the players win this case? They bankrupt the NBA and there is no more NBA?? How much money are they destined to win?
NFL should been “NBA” below.
Problem for Boies is Stern’s “reset” proposal is not a end to negotiations. Labor law is 100% that either side can propose draconian proposals and not run afoul with labor law. The players real argument is they don’t like what the NFL is proposing. Boies suit is going to get tossed like most all antitrust suits do sooner or later.
“There comes a time when you have to be through negotiating, and we are.” David Stern, November 11, 2011
“David Boies, Kessler, and Co. are too stupid to see the writing on the wall.”
Has anyone thought that these guys are in for the money?
Obviously they intend to win the case, but ultimately, they are looking at the $$$$$ that they will get with this maneuver.
This is a typical case in which winning is beautiful (reputation going up and $$$) but losing is not that bad either (reputation is not severely dented since the loss by the players is almost predictable and the $$$$ is still there).
Exactly the point I was trying to make to the lad, but he didn’t quite get it, or preferred to resort to childish name calling and asking for proof of legal expertise. But don’t argue with his Phd in sport franchise economics, because he’s read several internet sources to back him up. Did you know Stern’s salary is $20M? He’ll tell you, because he read the rumor on the net, even if it is way off. Did you know that if Pierce says he has over 200 signatures, it must be fact, because he has a source that reported it, in numerous places? Just warning you not to argue with his “facts”. He’ll call you bad names.
It’s an intriguing point to bring up, but ultimately it’s an assumption. You could really say that about anyone because we are a capitalist society. Hell you could say that about the federal mediator, he sand bagged it a bit in order to increase his pay as he is probably paid by the hour. Oh the doctor really thought this medicine would work but i guess you’ll just have to come back for another check up and a different prescription. I also respectfully disagree and believe this quote is not 100% accurate “reputation is not severely dented since the loss by the players is almost predictable”. If Boies and Kessler win then it means huge business because as a union or trade association I would refer to them. Also, Boies is at a point in his career where he gets to pick his clients and no good lawyer is going to CHOOSE a case he/she doesn’t believe they can win. So Boies and especially Kessler after that plantation stuff have very good reason to have winning as their ultimate goal and not just the money. And as i said earlier court cases are very much a coin toss, there is no such thing as a sure thing in the courts. Oh and Pooka the swearing from that guy was out of line and i hope debate and discussion are used from here on out as the readers of this website seem to all be very educated and also very knowledgeable about basketball, which is refreshing from the people you get commenting on ESPN or SI.
Players in the top 30 or so paid list would probably have a 99% vote to take the deal. They are already taken care of. They want their checks. The 5 million average is an average. There are many players paid below that. The no vote came from the players this mostly affects, mid-level and below players, and young players.
The owners thought the players would cave. They were wrong. They miscalculated. So, David Stern finally awakened from his nap and he is in a bad mood. Big deal. Let him whine. He can tell it to the judge, or he can be a leader and get these owners to be fair negotiators and make a deal.
The owners with crappy teams that are losing money and cannot figure this game out are trying to get the players and the rich teams to make up the difference for them. Unfortunately, the league is awash with bad ownership and poor management. If you can’t figure out how to make money and win in the NBA, sell your team.
Oh and for people who are writing this off as a bluff or an instant loss, remember that there are some major differences between the NFL and NHL situations. In the NFL’s case they filed too early and the league was also making huge profit. In the NHL’s case the league was going bankrupt and there wasn’t any realistic middle ground solution that would prevent bankruptcy. In the NBA’s case the league is very much in the green (as a whole) and it’s very possible that the courts would consider the players decreased BRI and an increase in revenue sharing more than satisfactory. Some players associations have won, the 94-95 baseball strike was “won” (the game of baseball itself was devastated by fan backlash) by the players. And the judge that made the ruling to end the strike was current Supreme Court justice Sonia Sotomayor. Don’t forget any great trial lawyer will avoid court if at all possible because they know that going to court is a coin toss no matter how good the case seems (OJ Simpson anyone).
Drew: sound like your trying to convince yourself. Bottom line: the players had an opportunity to make on average 5 million per year plus 1% committed to a player annuity program. Did I mention endorsement deals helped out by league marketing. Almost forgot — and most of them would be done playing in April or May.
Now they sit hoping the courts will help them out. Maybe yes, maybe no. Maybe it takes years to complete.
I am confident that most of the players would have taken the deal offered. That is why it wasn’t presented for a vote.
I actually remember hearing McCan from sports illustrated and TNT/NBA TV mentioning something about the players were picked by certain criteria for example Leon Powe because he is a resident of CA and grew up/played in college up in Northern California. They also picked Kawhi Leonard for the same reasons (SDSU) plus he represents the rookies. The main criteria was that they had CA plaintiffs because they are filing this in the CA district where union and anti trust litigation is much more favorable to the NBPTA. If the courts allow the filing in CA then this could really give the players leverage because it is much more likely that they will rule in favor of the Players. I think the more interesting notion is the multiple lawsuits filed in different states. The Minnesota one seeming to catch David and Billy by surprise.
Court date for the first filing is now February 29 — so, the courts cannot save the season. It’s a staring contest between now and about Jan 1 to see if the season is cancelled. If Stern can’t convince a few owners to offer some more concessions, there won’t be a season. The players are not going to roll over after what they just did. Stern needs to be a leader, and convince the hardline owners to make a few more concessions.
LT: the players never got to vote on the owners proposal so we really don’t know what the players think.
Two things to watch here.
1) The players are asking for “summary judgment”. Basically what that means is that the whole violation against them is so obvious that the judge can rule in their favor without a full trial.
Based on all the rhetoric tossed around by both sides the past year, I would highly doubt any judge would give them their ruling on summary judgment. Too many “he said/she said” facts are in dispute. That means we are looking at a long trial schedule and a completely shot season.
The players in their complaint are asking for damages. If it were me, I would have just asked for an injunction to get a judge to lift the lockout. This is what the MLB players did in 1994-95.
Sure the idea of antitrust damages is a huge sword to hold over the league, but the chances for success are much less and the timetable for this process is long.
2) Whatever trial court makes a ruling here will be appealed. The owners or players might find a judge sympathetic to their side, but in the end the losing party will appeal. This will take a long time. Maybe a couple years. The USFL case I believe took three or four years.
Again, this move by the players puts the entire season down the drain unless for some reason Stern wants to come back and settle.
What I dont understand is how is it possible that acts that take place during the validity of a certain status quo (CBA AGREEMENT) can be considered illegal after this agreeement expires. This is changing the game field and rules after the match started…
They were legal as long as the owners were negotiating in good faith, which the players (and, you know, reason) are now claiming they weren’t.
As I said yesterday, Bois is blowing smoke. He is trying to posture litigation as a means of intimidation and compelling the NBA to return to the bargaining table with open checkbook.
It won’t work. Stern is too savvy to fall for this. Stern left the door open with the 47% split proposal. The players voted down the 50% split proposal and went to decertification on their own volition.
Bois knows he has no legitimacy in court. The courts are leery of entering into labor cases to begin with and often defer to the parties to resolve matters on their own rather than impose a remedy.
Another guy who appears to be smarter than Boies, Kessler, and Co. Man if only the NBA knew about you guys, this case would be resolved in no time. You and p00ka should offer your services to the league since you all are so smart and knowledgeable considering US sports labor and anti-trust law.
I guess the next move by the NBA should validate or discredit your theory. If they come back with another offer then Boies has something if not then it is a bluff by the player’s trade union.
Michael: I wish you the best. You obviously are personally vested in the success of the players.
Personally, I feel bad for many of the players who are awaiting court rulings as a means to make a living.
If they had accepted the deal, they would be on the court today making a great income with benefits. Unfortunately, they never had a chance to vote on a proposal that would have granted them roughly 5 million dollars average income with 1% of BRI set aside in a players annuity fund.
I have no inevstment. My only care is the well being of the league.
Reducing player salaries without addressing any of the actual increasing costs that have led to the NBA’s economic mess is dumb policy.
Plus I hate the Heat, and feel that the league’s system changes gaurantee the Heat the next 5 titles.
So if the player’s are holding out and not submitting to the owner’s, it’s win/win as far as I’m concerned. The Heat can’t win, and maybe just maybe, although highly unlikely, the league will place some responsiblity on the owners to stop shifting costs onto the players and the league will be better off.
I get your point of view. Where we differ is the owners latest proposal. In a growing industry guaranteeing yourself 50% of BRI plus 1% of BRI for annuity of benefits is a good deal. Add in the marketing of the league that allows for endorsement deals (not split with owners) and the players are living quite well.
In this economic environment, I believe the players truly will regret not accepting it when they had the chance. Of course, the players didn’t even have a chance to vote.
For the players sake, hopefully the courts will come to their rescue.
Whether they’re leaving well, or amazingly well, why should the owner’s get to limit how well they live to their own benefit? In a free market society shouldn’t the owner’s have to bid against each other for the player’s services?
Imagine if you were an attorney (or insert profession). Should all the employers in the state of NY be able to collude together and cap how much you can make as an attorney, and say, if you don’t like it, you have to start your own practice? Shouldn’t the employers have to compete for your services? Why should the NBA be different just because they’re rich? Attorneys are rich too.
*living well, not leaving well
Brandon, the crossover between the normal free market system and professional sport leagues is a hazy one. Not all the same rules apply. The NBA is essentially a single business with 30 franchises. The NBA doesn’t prevent players from seeking employment elsewhere, nor do they prevent others from creating another league. There’s always a cost to everything. The NBA says the cost to the players of making so much money and being incredibly pampered, while being trained and coached by the best in the business, is that there’s some restrictions in movement. The NBA is saying they have valid reasons, for the health of their single business, to impose such restrictions. Their league, their money at stake.
How is cutting a fixed expense a good deal when your losses are increasing? How does that make any sense? It’s like the government solving our growing debt crisis by cutting discretionay spending. How does that solve the growing entitlement problem? It makes zero sense. You need to cut, reduce or stop your expenses that are increasing. The NBA refuses to do this because this would require some responsiblity by the owners. Something they don’t want. It’s easier to just blame the players and drastically cut player salaries once every CBA is done. Heck man, even if the current proposal went through, the NBA would still be in the red after year 1. Guess how bad it will be in year 2 when their expenses continue to rise? Guess how much the league will lose by the end of the next CBA? My guess, well over $1 billion like the last one.
I wondered about this kind of stuff as soon as I read who the players hired. There had to be arguments he made for the NFL owners that were going to come back to haunt him and the players he represents. The players just keep shooting themselves in the foot. From Lebron and Melo taking over control of the league, to threatening this route 20 months ago (can you say who started the ultimatums?), to Amare talking of starting their own league, to crying about being slaves to plantation owners. Stern and his team have played this game perfectly, and the players are going to learn what the NHL players learned. It’s not worth it. Stern wasn’t fooling: the current deal is the best they’re going to see. It’s not bullying. It’s reality.
Your quoted text from the NFLPA litigation is distinguishable here. In the NFLPA the litigation was filed amidst ongoing negotiations. Here, Stern’s ultimatum – his take it or leave it offer — provides the NBAPA with a claim that their union no longer served a purpose. In other words, once that ultimatum was made, the NBAPA could flip the switch.
This is why Hunter and the Union didn’t decertify in July when all the agents were clamoring to do so. It hadn’t reached the point where the player’s union had a ripe claim for failure to bargain in good faith, which supports their anti-trust action.
I think back in July when the owners wouldn’t budge on their 60/40 split that could easily be construed as not bargaianing in good faith.
I’m like 90% sure the NBA offered 50/50 when the season ended and said you will never see an offer this good again when the players rejected it. The whole summer the owner’s were wasting everyone’s time with assinine proposals. Knowing very little about the legal system, it would seem to be the players had a good case for the owner’s not bargaining in good faith.
I don’t remember there ever being a time this summer where Stern and the NBA amped up the rhetoric to the point where the NBA said “this was it” and made a stated refusal to negotiate any further.
http://articles.nydailynews.com/2011-06-22/sports/29707005_1_salary-cap-salary-cap-nba-owners
“David Stern said that the owners’ latest proposal, which was made during the Finals, is about as far as they will go.”
I can’t be arsed to find his exact quote. But it was something along those lines
Yes, but that, and all the rhetoric before and since, was more or less negotiating semantics. It’s doesn’t have the same effect as the ultimatum that was issued last week.
And you don’t think it’s a standard tactic in any negotiation to say “this is our best deal”? That happens in every single labor contract negotiation, multiple times.
I think that’s still distinguishable. “Our best deal” isn’t an ultimatum. Here, Stern said take this offer or you’re getting a worse offer from here on out. And he did it on ESPN, not in the negotiating room.
p00ka- I’m not going to debate the leagality of that statement and I doubt anyone here is. I’d leave that to the Boies and Co. who I think we can all agree are about one million times smarter than you and have a much better understanding of sports labor law than you will ever have.
All I’m saying is I still think the NBPA decertifying would have still been reasonable back in the summer when Stern issued in what my opinion amounts to an ultimatum, and Brandon appears to disagree. Nothing more or less than that.
@ Pooka, I have absolutely no knowledge CBA negotiations but Stern did reference ending negotiations and basically gave an ultimatum to pressure the players into a CBA.
Brandon, the thing is everybody is saying Stern refused to negotiate any further. That’s not quite true.. He said that this was the best they were going to offer and that THE NEXT TIME THEY ENTER THE NEGOTIATING ROOM, THE STARTING POINT IS GOING TO BE HARSHER. He simply stated that the owners had enough of arguing over the current deal, and if this is going to drag on further, the starting point is going to change. I’m no legal mind, but I’ve a strong feeling the players don’t have a hope in hell of winning this battle.
Brandon you’ve got to understand that p00ka is much smarter than David Boies, Kessler, and Co. He already knows whatever tacticts they try will fail because p00ka is smarter than the guy who has represented the Justice Depratment, the Yankees, NFL, CBS, etc. If David would only listen to p00ka, he would know to never challenge David Stern because he is only wasting his time.
No Michael, I’m no intellectual giant by any means, but I’m not stupid enough to ignore the writing on the wall. I just expressed my opinion about what I see, but we’ll see.
I think Pooka isn’t completely wrong there, after all Stern has said a number of things a hundred different ways. But Pooka, where i think your missing the point is that this latest rhetoric used by Stern is the most contentious when it comes to categorizing the NBA’s position as bargaining in bad faith/refusal to negotiate. I wonder though, under the standard your setting, if there would be such a thing as a failure to bargain, or bargaining in bad faith.
Yes, p00ka is smart enough to see the writing on the wall, but David Boies, Kessler, and Co. are too stupid to see the writing on the wall. Thanks for clarifying
Brandon, no doubt that it’s contentious, but it was worded in such a way to still leave the door open, technically (which will be important if it goes to court). I could be wrong, but I think a smarter move would have been to call the owners out and demand another meeting, forcing the owners to officially shut the door, or get back to the table. It seems hot heads got the better of good sense.
Lame, Michael. All you have to counter my opinion is that there’s smarter people than me? Obviously that doesn’t include you.
I think we could all pluck a number of different quotes worded both ways, some where it seemed like the owners would still negotiate and other where it seemed like they wouldn’t. I don’t think there was a time until recently though where Stern’s actions and rhetoric would have made such a strong case for the latter.
@p00ka- I’m not stupid enough to come on here and debate legal strategy and pretend I know what I’m talking about, unlike, oh say you!
I’ll leave it to the experts and form my opinion from there. And so far, the only legal experts I’ve heard regarding the anti-trust stuff (Munson and Brandt) seem to give the NBA a pretty good chance of winning. And with regards to ending the lockout soon (Munson) it seems to be up in the air.
Your uneducated opinion frankly is irrelevant, so I don’t need to respond with anything else except there are people smarter than both you and I handling this stuff. The difference is, I don’t continue to blabber on about things I know nothing about.
I didn’t mean NBA, I meant the players with regards to a good chance winning the anti-trust stuff.
Michael, you’re smart enough to not argue about things you know nothing about, but you argue some people, who you personally know nothing about, are “a million times smarter” than me, who you know nothing about. Can you spell hypocrisy?
David Boies, Kessler, and Co are very likely in possession of higher intellect than me, but taking a stance that their clients want them to isn’t an indication of that. They’re lawyers hired to represent their clients to the best of their ability, with what tools they have available to them. That doesn’t necessarily translate to winning. It translates to them following the money wherever they can earn it. Criminal lawyers work for murderers, but it doesn’t mean they’ll win.
I don’t know what experience you have in labor negotiations, or legal cases, but I’ve been involved a number of times, and I’m expressing my opinion based on that experience. What’s your basis for babbling that I’m not smart enough to have a valid opinion?
Hey man, now were comparing NBA players to murderers. C’mon dig tha hole a little deeper.
And regarding your first point, I don’t know what you’re talking about.
And my basis regarding the “babbling” is your comments themselves. they sound dumb. You provide absolutely zero legal evidence to support anything you’re saying. It’s purely unfiltered opinion. And opinion that sounds quite dumb frankly. If you’re so smart, and you know so much, why don’t you provide me with some links, legal cases, quotes, ect that support all the BS you have been spewing today. But you can’t. So go away and stop pretending to be something you’re not.
Also, I would point to this stament in your own words “I’m no legal mind”, yet now all of a sudden you have all this experience “in labor negotiations, or legal cases” when you say “I’ve been involved a number of times, and I’m expressing my opinion based on that experience.”
I mean c’mon, first you claim to not have a legal mind, and now of all a sudden you have a “valid opinion”?
Give me a fucking break. You sound like an unprofessional hack
Michael, if you can’t see or argue the point being made, just keep saying I know nothing. Brilliant you are not, Just to clue you in little, I didn’t compare NBA players to murderers. I compared lawyers to lawyers in your argument that the players’ lawyers are smarter than me because they took the job that’s going to pay them a lot of money. Is the point becoming clearer yet, or do you need more hand holding?
Michael, your posts are becoming more pathetic with every turn. You haven’t made a single valid argument about any of the points I’ve made. You just keep spouting insults about my abilities. Sad. You seemed a little deeper than that.
No, I’d rather you prove you have a fucking clue about what you’re saying. Something you still haven’t done yet. Still waiting on all this mountain evidence that you got since you can clearly see “the handwriting on the wall” as you so claim. C’mon, show me some legal precedent, some quotes, anything.
Otherwise stfu about laws and legal strategy you know absolutely jackshit about you fraud
I don’t need any valid arguements against you because I’m smart enough not to pretend I have a clue about sports labor laws, discalimer of interest, decertification, etc. Unlike you who has “no legal mind” (your own words) and pretends to be an expert on something you don’t know anything about.
What this discourse has proven is that you have anger management issues and are immature enough to re-direct a discussion through insults and name calling. Over the past week, I’ve seen you express quite a number of unproven opinions, or impressions as you’ve called them, yet resort to this silly name calling when others opine something that goes against your stance. I can’t be bothered to point out the numerous posts to prove this, but it’s real. You’ve lost one more participant in your “discussions”. Have fun in your sandbox.
Was serving up an ultimatum 20 months ago, that they would go this route if they didn’t get what they want, good faith? Was talking about forming their own league (Amare’s public statement) good faith (someone should have put a muzzle on him). Was calling the owners plantation owners good faith? I feel bad for many of the players who are just pawns in this mess, but they will lose.
That is kind of what I was thinking, do they have the right to give up on collective bargaining and move into a free market system and therefore use the corresponding law? Or because they once had a CBA agreement are they confined to that for eternity?
I’m not sure if you’re asking from the player’s or the owner’s perspective. The player’s definitely have a right to give up on collective bargaining. The owner’s can’t refuse to collectively bargain.
I was talking about the validity of the players court claim. Can they actually go from a union to a trade organization and then decide to sue the NBA? I think they have the right and can demonstrate the need by referencing the collective bargaining over the past few years.
That’s certainly debatable and that’s going to be a competing argument for both side. Stern’s ultimatum is what makes the player’s case though. Without that, then the NBA’s argument that the lawsuit is a “sham” and merely a negotiating tactic would be given greater weight.
Am I the only one who finds it interesting that not Kobe, Wade or Lebron volunteered their name for this lawsuit. These guys to me are the league’s 3 biggest stars (throw D-Howard in there if you want as well). I think that means one of two things.
1.) They supported the league’s proposal. In which case, this whole notion that the superstars are driving the anti-deal bus is completely wrong.
2.) They were against the league’s deal, but too afraid to put their name’s on the lawsuit for fear of how it would effect potential endorsement deals and public image.
I don’t think “volunteering” had anything to do with it. The lawyers picked players and locations that they think provides the best chance of winning. They won’t win, but one may as well start with what you feel gives the best shot.
What’s the logic behind picking Kevin Durant as opposed to any of the players I mentioned? They are all far bigger names.
The names of the Plaintiff’s really are irrelevant to the outcome of the lawsuit, however, if you read Adrian Woj’s column on yahoo it states that litigation was not something Kobe wanted to do.
True it is irrelevant, but it is telling who wanted to be selected and who didn’t. The NFL can get Tom Brady and Peyton Manning. The NBA can’t get Kobe or Lebron. Wonder why…. That yahoo article you made reference to is telling…