Players moving to far less familiar court
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China Daily, November 16, 2011
![Players Association president Derek Fisher, center, spoke after a meeting of the players' union in New York on Monday. [Source: Sina.com]](http://images.china.cn/attachement/jpg/site1007/20111116/000cf1bdd245102d61930a.jpg "Players Association president Derek Fisher, center, spoke after a meeting of the players' union in New York on Monday. [Source: Sina.com]") |
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Players Association president Derek Fisher, center, spoke after a meeting of the players' union in New York on Monday. [Source: Sina.com] |
Now that NBA players are preparing to take the labor fight with the league's owners to the courtroom, some legal experts expect them to face a daunting challenge if they file an antitrust lawsuit.
The players rejected the latest offer from owners on Monday and started a process of disbanding the union, a move that would allow them to sue the league, much like the NFL players did this summer.
But rulings in the NFL players' case against owners could make it tougher for their basketball brethren, antitrust lawyer David Scupp said. NFL players dissolved their union and filed an antitrust lawsuit this summer. A federal judge in Minnesota lifted the lockout in June, but that ruling was overturned on appeal.
Because the NBA case likely would take place in a different court, the ruling of the 8th Circuit in St. Louis to vacate US District Judge Susan Richard Nelson's injunction of the NFL lockout will not be binding. But it will be influential, Scupp said.
"Given the rulings that came down in the NFL case, right now the owners are not in a bad spot," Scupp said. "It could very well be that the players have an uphill battle toward getting that lockout enjoined."
Jay Krupin, chairman of the national labor and employment practice at Epstein Becker Green, said NBA players should expect a similar outcome to what happened to NFL players in the summer.
"It may be a different shape of a ball, but it's very similar circumstance," Krupin said. "It's been threatened in baseball, it's been threatened in football and now it's being threatened in basketball. The reason is that the players have nothing else to threaten with."
There are many legal twists and turns that this case will take before a judge makes any kind of outcome-affecting ruling, perhaps none more intriguing than the NBA players hiring David Boies and Jeffrey Kessler to represent them in any potential litigation. Boies represented the NFL owners and squared off against Kessler, who represented NFL players, in court this summer.
"The fact that the two biggest legal adversaries in the NFL players dispute over the NFL lockout both agree the NBA lockout is now illegal and subject to triple damages speaks for itself," Kessler said in an email to the Associated Press.
Krupin wasn't so sure.
"He's one of the premier attorneys in America," he said of Boies, "but that doesn't mean the case is any better."
The league already has filed a pre-emptive lawsuit seeking to prove the lockout is legal and contends that without a union that collectively bargained them, the players' guaranteed contracts could legally be voided. That case was filed in New York, where the 2nd Circuit Court of Appeals has issued several rulings in the NBA's favor over the years.
If the players decide to sue, they could file anywhere, possibly heading out west to California in hopes of finding more labor-friendly venues. But Scupp and Krupin said the case likely would be steered back to New York because the owners have already started the fight there.
All of this will take weeks, and likely months, to complete, putting the 2011-2012 NBA season in serious jeopardy.
The timing of the move to disclaim interest in the union is problematic, given the deliberate nature of the court system. Nets point guard Deron Williams tweeted on Monday that he was lobbying for the union to make the move in July to give it enough time to exert pressure on the owners before any games were lost.
That's the timeline NFL players employed, and they were able to go through several court hearings, file numerous motions and exert a little pressure on the owners without risking their season.
The NBA already has canceled the first month of the season, and commissioner David Stern said a shortened 72-game season would have started on Dec 15 had the players accepted the latest offer.
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