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NBA Lockout Talking Points From The Players’ Attorney

Anthony

Don’t feel too bad if you still don’t understand the goals or logic of NBA players during the lockout. Their inability to communicate their concerns has been one of the larger criticisms of the National Basketball Players Association during these negotiations.

The players’ union — or the trade association formerly known as the players’ union — began clearly coalescing its points Tuesday. The union invited about a dozen reporters to its offices to hear executive director Billy Hunter and David Boies, the freshly hired and well-respected attorney who will lead the union’s efforts in court against the NBA, discuss the organization’s next step.

The following is a rundown of the players’ complaint. Portions of this blog post that are presented in italics are excerpts from the complaint itself. The quotes are spliced with explanations from Boies.

United States District Court
Northern District of California
Oakland Division
“There were a number of people who wanted to be in California,” Boies said. “Billy has a great fondness for Oakland. He lives out there. One of the key representatives, Mr. Powe, is a resident out there in Richmond, California, which is in the Oakland division of the Northern District of California. I also think that we think that district has a practice in moving cases along very quickly. They’ve got a lot of expertise in antitrust cases and we think it will be a good forum for us to proceed with this lawsuit.”

Carmelo Anthony, Chauncey Billups, Kevin Durant, Kawhi Leonard, Leon Powe and all those similarly situated,
Plaintiffs,
“I think it was a two-way street,” Boies said of the plaintiffs. “I think it was people who believed they wanted to participate as plaintiffs and there were people whose lawyers believed would fairly represent the interests of the class. For example, although it’s not actually a legal requirement necessarily, in general when you’ve got a class action, you want to have a mix of people. For example, one of the subclasses in the complaint are players under contract because players under contract have particular claims that are based on the fact that the owners got together and all agreed that they would breach those contracts. So they have a certain set of claims. You then have NBA players who are not under contract and they have many of the same claims, but some different ones. And then you have the so-called rookie subclass of people coming into the league.”

-against-
National Basketball Association, Atlanta Hawks, LP, Banner Seventeen LLC, Bobcats Basketball …

Plaintiffs allege for their Complaint, upon knowledge as to their own acts and status and as to actions occurring in their presence, and upon information and belief as to all other matters:

Nature Of This Action …
3. In June 2007, more than four years prior to the expiration of the 2005 CBA, NBA league officials warned NBA players and their then-collective bargaining representative, the National Basketball Players Association (“NBPA”), that Defendants intended to substantially reduce the players’ share of Basketball Related Income (“BRI”), to impose more restrictive “salary cap” limits affecting players’ individual salaries, and to remove or restrict a number of important “system” provisions that protect player rights …

5. Despite the lockout, the NBPA attempted to continue to negotiate a new CBA. Although the NBPA made concession after concession, including concessions that would cost its members more than one billion dollars over a six-year period, the NBA essentially refused to negotiate its basic 2007 demands … In fact, essentially the only movement made but the NBA was to demand and then modify the requested concessions from the players in addition to the concessions demanded in 2007 …

6. On November 6, 2011, NBA Commissioner David Stern wrote the players that they had three days to accept the NBA’s proposal or otherwise face increasingly punitive proposals … This ultimatum further confirmed what the League had effectively told NBPA representatives — that the NBA had no intention of continuing to negotiate any material changes in the terms of its onerous proposal, that Defendants had effectively abandoned collective bargaining …

7. … For all intents and purposes, the League declared that it would not further negotiate any changes in these proposals to favor the union. Bargaining was at an end.

8. … the NBPA concluded that further collective bargaining was futile and it disclaimed its role as the players’ collective bargaining representative …
“Everybody wants, certainly everybody in this building, wants to have people start playing again,” Boies said. “If it were up to the players, there’d be games being played right now. There’s one reason and one reason only that the season is in jeopardy and that is because the owners have locked the players out and have maintained that lockout for several months. In the absence of the unilateral action of the owners and the NBA in locking out the players, we would have a basketball season. If there’s not a basketball season, responsibility of that lies in one place and one place only and that is the NBA and the NBA owners because they’re the ones that are keeping the players from playing. The players are willing to start playing tomorrow if they’ll end the boycott.”

10. Despite the disclaimer, and the complete end of the collective bargaining process, Defendants have jointly agreed and conspired to boycott the players even after their disclaimer in an effort to coerce Plaintiffs and all NBA players …
“A lockout can be a boycott,” Boies explained. “A lockout and a boycott are just two terms that describe, in some senses, similar conduct. Generally, a lockout is something that takes place in the context of collective bargaining. A boycott is what takes place when collective bargaining is over with. There are questions as to exactly how you define a boycott in some cases. But in this case, it’s clear because all of the teams have gotten together and they’ve said we’re not going to sign players.”

Class Action Allegations
“This is a class action and what that means is that if we have a settlement, we can have a settlement that would bind all the players and all the defendants,” Boies said. “So you could have ways of approaching some of the issues. Not all of them, but some of the issues that are relevant to collective bargaining agreements. You could face those in the negotiations in the settlement of a lawsuit.”

19. Plaintiffs Carmelo Anthony, Chauncey Billups, Kevin Durant, Kawhi Leonard, Leon Powe (collectively, “Plaintiffs”) are representative of a class … and bring this action on behalf of themselves and the class members …

24. The Prosecution of separate actions by individual members of the class would create the risk of:
(a) inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class …

Factual Allegations
32. … rather than competing for the players’ services, Defendants have combined and conspired to eliminate such competition among themselves for NBA players through group boycotts, converted refusals to deal, and agreements on restricting output and fixing prices …

B. Four Years Before The 2005 CBA Was Set To Expire, League Officials Threatened to Lock Out Players When It Expired if the Players Refused Their Demands for a Much More Restrictive “Hard” Salary Cap and Drastic Reductions in the Players’ Share of BRI …

37. At this meeting, Commissioner Stern and Deputy Commissioner Silver told Mr. Hunter that, if the NBPA was unwilling to agree to the NBA’s demands, at the end of the CBA the League was “prepared to lock out the players for two years to get everything” that the NBA owners sought and that “the deal would only get worse after the lockout”…

40. The discussions revealed that the changes sought to provide owners with a guaranteed profit of at least 10 percent of revenues, regardless of how effectively the owners control costs and manage their teams. When asked for the basis for this guarantee, Stern replied that “it was a fair return rate” but offered no additional explanation …

D. Despite the League’s Effective Failure to Negotiate, the Players Continued to Make Concessions in an Effort to Reach a Fair Agreement …

F. To Obtain a Desired Forum in the Event There Might Ever Be A Union Disclaimer and Future Litigation, the Owners Filed a Premature and Unripe Lawsuit for Declaratory Judgment as to the Impact of a Hypothetical Future Disclaimer …
“On the one hand, the players are getting criticized for not disclaiming three months ago and then other people have criticized them for disclaiming now,” Boies said. He added: “I think they did it just right. They worked very hard, incredibly hard, to get an agreement, as long as there was any possibility of that happening and one of the disadvantages of that is time passed. One of the advantages of that is that it’s absolutely clear at this point that the collective bargaining process has ended. One of the tests as to whether you can bring an antitrust case in this context is whether the collective bargaining process has ended.”

“If you reverse the question and ask what would the NBA had done if we decertified in July, I think is answered by the complaint that they filed in the Southern District of New York, in that they were contending or trying to anticipate that we would decertify and they would argue just what they said, that it would be a sham decertification,” Hunter added. We knew that our players wanted to get a deal. We’ve been negotiating with them for nearly two years and we were insisted on getting that and we thought that we would ultimately get it. We indicated to the players that we would make every effort and then if we didn’t get it at a certain time and we had no other choice — as David indicated when he gave us the ultimatum, we knew that the process had broken down completely — then we had to do what we had to do.”

H. The Commissioner’s Ultimatum, and the Union’s Last Ditch Effort to Salvage the Collective-Bargaining Process …
56. The league’s ultimatum reinforced the NBA’s position that Defendants no longer had any intention of negotiating its offer and had effectively announced that it was ending the collective bargaining process as to the critical deal terms …
“There will come a time when the league faces reality, and faces the reality of the exposure that they face under the antitrust laws, the exposure they face because of fan dissatisfaction with their unilateral lockout, the exposure they face by having other people get into the business of professional basketball and they will believe it is in their interest to resolve this case,” Boies said. “I can’t tell you when that’s going to happen. But I will tell you it will happen because those forces are too strong for anybody to resist indefinitely.”

58… Commissioner Stern also made clear that the League had no intention of negotiating further, announcing publicly that “We have made our revised proposal, and we’re not planning to make another one.”
This is important, according to Boies and signified that the bargaining had officially ended. “It turned out to be a mistake,” he said of Stern’s warning. “Was it a mistake to do it? If you’re in a poker game and you run a bluff and the bluff works, you’re a hero. If somebody calls your bluff, you lose. I think the owners overplayed their hand. I will give the devil their due. They did a terrific job of taking a very hard line and pushing the players to make concession after concession after concession. Greed is not only a terrible thing, it’s a dangerous thing. By overplaying their hand, by pushing the players behind any line of reason, I think they caused this. The players obviously, you don’t give up hundreds of millions of dollars unless you really want to make a deal. That’s what the players were doing. The league felt it was in their interest to take a very tough line. Up to a point, I think that got them some results. But I think it was a mistake to push as far as they did. I think they overplayed their hand.”

K. Carmelo Anthony …
75. On February 22, 2011, Carmelo Anthony signed a contract extension with the New York Knicks that extended through the 2014-2015 NBA season. Under that contract extension, Mr. Anthony is set to earn a salary of over $17 million per year.

76. As a result of Defendant’s’ ongoing group boycott, any cancellation of games, and other conduct as alleged herein, the Defendants are in breach of, and tortuously interfering with, Mr. Anthony’s contract.

Count I
Violation Of Section 1 Of The Sherman Act …
… Because the NBA players have disclaimed all union representation and because the collective bargaining process has ended, Defendants’ group boycott is not a tool to promote collective bargaining but instead now constitutes an illegal agreement among competitors to eliminate competition for the services of major league professional basketball players in the United States …

Count II
Breach of Contract …
92. The conduct of Defendants has caused monetary injuries to Plaintiffs and other class members, entitling them to damages …

“We’re asking for damages,” Boies said. “I think that at the time the case goes to trial, depending on what the circumstances are, there might be, at the time of trial, additional relief in the form of injunctive or other relief. But the primary claim at this time is for damages, triple damages.”

Count III
Tortious Interference With Prospective Contractual Obligations …

Count IV
Tortious Interference With Contract

Previously by Jonathan Abrams:
The Murder of Tayshana Murphy
An Economics Professor Explains Monday’s NBA Lockout News
The NBA Lockout Timeline


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