National Basketball Association players and agents exploring union decertification may be trying to deregulate the labor market, according to law professor Paul Haagen.
The conference call held yesterday between about 50 NBA players and an antitrust lawyer to discuss the process of dissolving the National Basketball Players Association might come with two aims, said Haagen, who teaches contracts and sports law at Duke University School of Law in Durham, North Carolina.
“The tactic is the threat of chaos and the other is a much more global idea that an unregulated labor market may be much better for players,” Haagen said today in a telephone interview.
The players and owners will hold a negotiating session tomorrow at a New York hotel that will be overseen by federal mediator George Cohen, Mike Bass, an NBA spokesman, said in an e-mail. The session comes on the 128th day of a lockout of players and eight days after the last meeting, when NBA Commissioner David Stern ruled out a complete 82-game season.
Cohen, director of the Federal Mediation and Conciliation Service, led three days of talks that ended Oct. 20, when he said in a statement that “no useful purpose would be served by requesting the parties to continue the mediation process at this time.”
The players and agents considering decertification are being advised by attorney Len Simon of San Diego-based Robbins Geller Rudman & Dowd LLP, according to the Sports Business Journal.
Though decertification could give players leverage in the court system by allowing them to file an antitrust suit against the NBA, it would leave no clear path toward recreating a union that could develop the framework of a new deal, Haagen said.
“This carries with it the possibility of quite chaotic labor relations,” Haagen said. “It at least is potentially a significant set of new considerations for the league.”
Dan Wasserman, a spokesman for the union, declined to comment in a telephone interview. Bass also declined comment.
The broader idea that doing away with sports unions might be best for players’ interests also would be a significant motivating factor, Haagen said.
One of the agents who has been outspoken about decertification is Arn Tellem, whose agency’s clients include league Most Valuable Player Derrick Rose and All-Stars Pau Gasol and Joe Johnson. Tellem, in a New York Times editorial in May, said he wondered if pro sports unions have outlived their purpose.
Noting that the National Football League players’ union decertified in March, Tellem, who said he represents 45 NBA players, said the basketball union should follow the football lead “the moment the current season ends.”
An e-mail seeking comment from Tellem wasn’t immediately returned.
The NBA locked players out on July 1 when the last labor deal expired. The league has canceled the entire first month’s games in the season that was scheduled to start Nov. 1.
The NFL players’ decertification was led by their union, which abandoned its role in negotiations. A group of players led by New England Patriots quarterback Tom Brady then sued the league in federal court alleging restraint of trade. The union re-formed when a labor agreement was reached and the court case was settled.
Haagen said such a move could be more effective in the courts than the NFL players’ move, which looked “a lot more like a tactic within the flow of a labor negotiation.”
The first step in decertification would require 30 percent of the NBA’s roughly 450 players to sign a petition. That would lead to an election by the full membership overseen by the National Labor Relations Board, with a majority needed to complete the effort.
The result could be the NBA canceling the season or operating under antitrust laws that would limit what work rules the league could enforce, Haagen said.
Age restrictions and salary caps are examples of work rules that would be very difficult to enforce under such a scenario, he said.
The last talks collapsed with the players offering to take 52.5 percent of basketball-related income and owners asking for a 50-50 split. The players got 57 percent under the previous deal. The league made about $4.3 billion last season, when Stern said the owners collectively lost about $300 million.
Several agents had discussions about decertification in July, though there hasn’t been much public talk about it in recent months.
The threat returned “because there is now sufficient player interest, or lack of interest, in the progress that’s been made, that they might be willing to try something very different,” Haagen said.
“I also think that the players going down this road might not fully understand how chaotic things could be,” he said.
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