View Full Version : Agents pushing Decertification...

07-24-2011, 06:53 AM

Any legal eagles able to break down what this would mean? Pros, Cons, risks etc. Hadn't seen decertification as possible this early in the process.


07-24-2011, 07:10 AM
There's a reason the NBAPA doesn't ever try this tactic: David Stern is a very, very good lawyer. The players do not want to fight Stern on his own turf.

07-24-2011, 07:18 AM
jmo, but the agents are constantly struggling to undermine the NBAPA. and the NBA owners. the agents want to be the de facto rulers of the league. the quicker the players association decertifies, the sooner the agents can start sneaking in and running things. letting the agents be in charge of any part of the CBA negotiation process will only hurt the league and its players in the long run. and probably the short run also.

The Sleeze
07-24-2011, 10:20 AM
De-certification didn't work for the NFLPA, so I don't know why they think it will work for the NBAPA.

Tom White
07-24-2011, 10:40 AM
jmo, but the agents are constantly struggling to undermine the NBAPA. and the NBA owners. the agents want to be the de facto rulers of the league. the quicker the players association decertifies, the sooner the agents can start sneaking in and running things. letting the agents be in charge of any part of the CBA negotiation process will only hurt the league and its players in the long run. and probably the short run also.

I'll boil it down to something more simple. If the players don't get paid, the agents don't get paid. It is all about dollars.

07-24-2011, 11:09 AM
How exactly does decertification help the players? I assume this means that the union would not exist and therefore it could not negotiate a CBA...and therefore there would be no way for the owners to put caps on the player salaries with such an agreement. In other words, it would allow the players to negotiate independently on the free market....just like most employees.

If this is what it means, I would imagine it will destroy the NBA. Small market owners seeking a profit would never be able to compete against some of the deep pockets who may overpay all their players to gather the best talent. Imagine trying to compete with a big market team that is able to take a loss while spending 2 or 3 times as much on player salaries.

07-24-2011, 11:44 AM
The biggest reason to decertify the union is that it breaks the monopoly shield of the NBA and opens them to anti-trust lawsuits. That is usually a way to do things like force the end of a lockout (sure, they won't play games, but players would get access to facilities and other benefits), allow the high-profile players to sue individually rather than part of a collective process, and so forth.

It would effectively guarantee the loss of the 2011-2012 season.

07-24-2011, 12:44 PM
Q&A regarding decertification


What is decertification? Disclaimer of interest?

Decertification occurs when employees formally revoke the authority of their union to engage in collective bargaining on their behalf. A related concept is the "disclaimer of interest," where the union formally terminates its right to represent the players. Both procedures effectively dissolve the union.

What is the process for decertification? What is the process for disclaimer of interest?

There are multiple steps to decertification. First, at least 30 percent of the players must sign a petition stating that they no longer want the NBPA to represent them as a union (this process began several months ago). Second, the petition must be filed with the NLRB. The NLRB must verify the petition and then schedule an election. The union is decertified if at least 50 percent of the voting players opt for decertification. Disclaimer is a less complicated process -- the union must simply disclaim interest in representing the employees.

Why would the players break up their own union?

The players would use decertification or disclaimer of interest as a means to end. The end is the ability to bring an antitrust lawsuit against the NBA challenging a potential lockout or any of the rules that the league might put in place that restrict a player's ability to make money or otherwise impact the players working conditions. For example, the players could challenge the NBA's salary cap, the player draft, and other player and free agency restrictions.

Why do the players have to break up their union to bring an antitrust suit?

Here's the short version (for the even shorter version, skip to the next paragraph): Because of a doctrine known as the "non-statutory labor exemption." This exemption protects the product of collective bargaining from attack under antitrust law. Thus, any terms of the collective bargaining agreement are immunized from attack under antitrust law. But, the exemption extends beyond just the terms of an actual agreement -- the Supreme Court has held that the exemption applies, even in the absence of a current collective bargaining agreement, as long as a bargaining relationship still exists.

Essentially, players are required to make a choice between labor law (and collective bargaining) and antitrust law (and individual bargaining and litigation). If the players choose labor law, an antitrust shield is raised that prevents them from attacking NBA rules under the antitrust laws. To lower the shield and choose antitrust law, the players must end the collective bargaining relationship. The players would dissolve their union -- either through decertification or disclaimer of interest -- to surrender their collective bargaining rights and choose antitrust law instead of labor law. The players would then use antitrust law to challenge any restrictions imposed by the league and to ask a court to enjoin (block) the owners from locking them out.

Has the NBPA ever dissolved its union?

No. There was a decertification movement in 1995, led by star players like Michael Jordan and Patrick Ewing, but the players voted 226-134 to accept a new six-year agreement rather than decertify their union. There were also reports that the players were considering decertification in 1998, but the players remained in the union.

Is it common practice for professional athletes to dissolve their unions?

Practice? We're talkin' 'bout practice?

It's not common. In fact, it has only happened twice. The NFLPA dissolved its union in March 2011 by disclaiming interest and voting (informally) to decertify. Prior to that, the NFLPA dissolved its union in 1989, which led to a legal battle that eventually helped the NFL players achieve real free agency.

In 338 words or less, can you tell me what happened after the NFLPA dissolved its union in March?

Following the dissolution of the NFLPA, a group of players filed a class action antitrust suit in federal district court in Minnesota, challenging the NFL lockout (which was implemented the next day) and a variety of player restraints. The players claimed that the lockout was an illegal "group boycott" under the antitrust laws and asked for a preliminary injunction to block the lockout, and for treble (ie, three-times) damages for any harm caused by the player restraints imposed by the owners.

As of now, we have only had proceedings on the preliminary injunction. In court, the owners raised three defenses in response to the players' attempt to enjoin the lockout. First, the owners argued that the Norris-LaGuardia Act (one of the key federal labor laws in this dispute) precludes federal courts from enjoining lockouts. Second, the owners contended that the dissolution of the players' union was a "sham" and that the collective bargaining relationship still exists. Therefore, the owners argued the non-statutory labor exemption is still in effect and immunizes the owners from antitrust attack. Third, the owners claimed that the pursuant to the doctrine of "primary jurisdiction," the court should defer to the National Labor Relations Board's ruling on the validity of the NFLPA's disclaimer of interest before proceeding with the case.

Judge Nelson rejected all of the owners' arguments and enjoined (ie, lifted) the lockout on April 25, 2011. Four days later, an Eighth Circuit panel voted 2-1 to issue an emergency, temporary stay of Judge Nelson's order (ie, they put it on hold) and reinstituted the lockout. The same divided panel then granted a longer stay pending resolution of the appeal on the preliminary injunction, concluding that, based on their interpretation of the Norris-LaGuardia Act, they "have serious doubts that the district court had jurisdiction to enjoin the League's lockout." Oral arguments were heard by the Eighth Circuit on June 3, 2011, and a decision is pending. So, for now, the lockout is still in place because 2 of the 3 judges on the Eighth Circuit panel believe that courts do not have the power to enjoin lockouts.

What impact will the NFL litigation have on the NBA and NBPA?

Great question (thanks). As of now, it looks like the NFL and the NFL players may settle and reach a new CBA before the Eighth Circuit makes a final decision. If that happens (that's still a big "if"), we will be left with a narrow, preliminary ruling from the court, indicating that a lockout cannot be enjoined by a federal court. That ruling obviously strongly favors the NBA, but it still would not prevent the NBA players from dissolving their union and seeking treble damages for harm caused by the lockout. And, that ruling will only be binding on the NBA and NBPA if they end up in the Eighth Circuit.

If the NBA and NBPA end up in litigation like the NFL and the NFLPA, can the case be brought somewhere other than the Eighth Circuit?

Yes, and where the case gets filed is key. It is the legal equivalent of home-court advantage. We're not just talking crowd noise, we're talking about refs actually giving your team the calls. (Think Hoosiers: "It's bad enough we have to play in this cage you call a gym, your players are playing like a bunch of animals."). If you can get the case filed in a jurisdiction that is more sympathetic to your legal positions, you stand a greater chance of winning the case.

The now-expired NFL CBA gave a federal judge in Minnesota jurisdiction over disputes arising under the CBA. The NBA CBA has no such provision, so the suit could be filed in any state that has an NBA team. If the NBA players dissolve their union and bring an antitrust suit, it is highly likely they will avoid the Eighth Circuit and look to file in a jurisdiction that has suggested that the Norris-LaGuardia Act does not prevent courts from enjoining lockouts. Based on the NFL players' briefs in Brady, they believe that the First, Seventh, and Ninth Circuits would be more favorable to the players on that issue. The First (Massachusetts), Seventh (Illinois, Indiana, Wisconsin), and Ninth (Arizona, California, Oregon) Circuits are all home to at least one state with an NBA team.

Credit: Gabriel A. Feldman
Law professor; Director, Tulane Sports Law Program

FYI, the NFLPA's lawsuit against the NFL probably won't be resolved due to the impending agreement in the NFL. The NBA and NBPA will be in uncharted territory here.

Lots of risks for both sides if they choose to do this. There just aren't a lot of precedents out there.

07-24-2011, 12:51 PM
This just gets more depressing by the day. I can't imagine how bad I will feel by October, let alone into the winter. Ugh.

07-25-2011, 11:11 AM
They still have to come to an agreement whether they decertify or not. IMO all it is, is a distraction and a delay.\

I found this article interesting.

07-25-2011, 11:48 AM
If the lockout is a chisel for both sides, decertification is a truck full of dynamite... from what I can gather.

Roaming Gnome
07-25-2011, 01:58 PM
Decertification always seems to be the tool of the agents and the extremely high profile athletes (who are being pushed by.... the agents), but the "rank and file" athletes usually sniff out that this move will do nothing but hurt them. So it never happens.

Didn't the last move to decertify in the NBA put coffin nails in super agent David Faulk? That was about the last time I heard of him being a major player as far as agents go.

07-25-2011, 03:50 PM
I don't know anything about any of this, but in some conversations I've had with Count55 - who does know a lot about all this stuff - he's said that he feels like going to the courts as quickly as possible is the only way the players have a chance to "win" in this labor deal. De-certification is the first step toward the courts.

The Sleeze
07-25-2011, 03:56 PM
If the lockout is a chisel for both sides, decertification is a truck full of dynamite... from what I can gather.

The problem is getting the right court, because get the wrong court and its like lighting the dynamite and then realizing the truck doesn't start....you just hurt your own side.

Like UncleBuck said, it just delays everything. That is the real reason it took this long to get the NFL lockout ended, because the NFLPA wouldn't negotiate while they we're trying to sue the owners and prove the lockout is illegal.