Mon November 14, 2011
NBA Players Decide To Disband Union
GUY RAZ, host: From NPR News, it's ALL THINGS CONSIDERED. I'm Guy Raz.
MELISSA BLOCK: And I'm Melissa Block. Today, the Players' Union for the National Basketball Association decided to disband and take its fight with NBA owners to the courts. The move could jeopardize the entire 2011 to '12 NBA season. The union plans to argue that the NBA lockout of players is illegal and will sue the owners under antitrust laws.
Gabriel Feldman joins us from Tulane University, where he's director of the sports law program. And Professor Feldman, help us understand why the union would choose to disband, how that helps them.
GABRIEL FELDMAN: Well, the idea is that the union is having trouble getting what they want at the bargaining table and they have decided to move from negotiation to litigation in the hopes that an antitrust suit or at least the threat of an antitrust suit will cause the owners to move at the bargaining table and give in on some concessions that they haven't given in on yet.
So the real idea here is not to blow up the entire season. It's not to have a lengthy multiyear antitrust litigation. The idea is to give the players some negotiation leverage at the bargaining table.
BLOCK: Now, the commissioner of the NBA, David Stern, said today he called this the nuclear winter of the NBA. It doesn't sound like he's holding out much hopes for the season.
FELDMAN: Well, I would characterize that as hyperbole and still a little bit of posturing and rhetoric. I don't think this has to be the nuclear winter. There's the potential, again. Antitrust litigation is a very long, expensive and unpredictable process, but I don't think the players intend to see this antitrust litigation to its fruition.
I think they're looking for a quick legal strike here. They are apparently going to file a motion for some re-judgment. That decision could come down within a matter of weeks and we could still very well have an NBA season. It will certainly be a shortened NBA season, but the players are hoping that they will have a shortened season, but on their terms, not on the owners' terms.
BLOCK: Now, the lockout of the NBA is in its 137th day. How far apart were the two sides in the latest round of negotiations?
FELDMAN: Well, they were fairly close on the economic issues in terms of how much was going to be divided up of the basketball-related income. Where they were further apart was on these so-called system issues. The NBA has traditionally had a soft salary cap with lots of exceptions to the cap. The owners wanted to harden that cap to make it so that the top teams couldn't outspend the small market teams. And that's really where the fight was. It was hard cap versus soft cap. How many exceptions would still be in place?
They were fairly far apart on those differences. And some would characterize it as a gulf, not quite a gap. I think that might be overstating it a bit, but they are certainly far enough apart that it was going to take one side or the other giving in fairly significant concessions to get a deal.
BLOCK: Is there a precedent here that might indicate to you just how this might work out in the courts, if it does work out in the courts?
FELDMAN: Well, we have very limited precedent. We have the precedent from the NFL litigations earlier this summer and we have precedent from NFL litigation in 1989. Those cases were all brought in Minnesota within the 8th Circuit Court of Appeals. This case will not be heard in Minnesota. It will not be within the 8th Circuit Court of Appeals and it is an area of almost - other than those two cases - almost completely uncharted territory. There's not a lot of precedent out there.
I don't think either side can be particularly comfortable with their legal positions, just because it's such an unpredictable area and so I think it's anyone's guess, to be honest, how the case will play out.
And from the fans' perspective, the hope is that uncertainty will drive the sides closer together because there's so much risk in litigating the case.
BLOCK: Hope springs eternal.
FELDMAN: Sometimes, it does. There's not a lot of hope floating around right now, but I think we will get to a deal and I think we still will have a season.
BLOCK: Okay. Professor Feldman, thanks so much.
FELDMAN: My pleasure.
BLOCK: That's Gabriel Feldman. He's an associate professor of law and director of the sports law program at Tulane University in New Orleans. Transcript provided by NPR, Copyright National Public Radio.