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November 14, 2011

A Duke law prof on the NBA labor mess

I just got off the phone with Professor Paul Haagen of Duke, one of the country's experts on sports law. He made some interesting points on the NBA players' decision to break up the union and pursue one or more antitrust lawsuits against the league.

First off, Haagen says it's important to understand the subtle difference between "disclaimer of interest'' (what the union is doing) and decertification. Disclaimer of interest means the union is voluntarily giving up its role as the players' representative in collective bargaining.

That's important in two ways: It speeds up the process (decertification would have added a couple of months) and it allows the union to regain its status as the players' representative pretty quickly.

In other words, if the NBA decides it doesn't want to spend years, potentially, in federal court, it could still approach union chief Billy Hunter with a better deal. (Though NBA commissioner David Stern has said that won't happen.)

Haagen said a best-case scenario for the players would be getting an injunction forcing the NBA to lift the lockout. Haagen said that's no given, based on the NFL's experience over the summer (you might remember the NFL having to lift the lockout for a single day, until the league got a reversal from a higher court).

The nuclear option in this is a successful antitrust suit brought by one or more players against the league. If that worked, it could hypothetically bankrupt the league, since there's potential for damages to be tripled. However, that could literally take years to resolve.

Haagen says the union's strategy could change the situation in as little as a week, if it forces the NBA to soften its position. However, Haagen wouldn't be surprised if the 2011-12 season is cancelled all-together.

 "If we get relatively deep into the process, positions will harden and economics change,'' Haagen said. "The longer it goes, the harder it is on both sides to make up the difference. Hockey lost a season and a half'' to a lockout.

"I'd be surpised if (the NBA lockout) lasts more than one season, but I could definitely see the whole season lost.''

Posted by Observer Sports on November 14, 2011 at 03:16 PM | Permalink


If i were an owner of a team losing money - like Jordan - i would not give an inch. In fact - i would want an even more pro-owner deal now than before. Jordan was losing 20 million a year - and the economy is getting worse. He is actually saving money by NOT having games so why would he vote for a better deal for the players? The players are being stupid - and greedy. Do they really expect most of the teams to lose money and for the league to not be competitive? All the owners want is to not lose money and have a chance to win. The players are being real stupid... The NBA gave them a real dumb deal last time and that is what created the problem so now they are trying to correct it.

Posted by: Dominator | Nov 14, 2011 4:38:08 PM

If the union is dissolved then the owners can have games with scab players - or whoever will sign an new contract and play - and not honor the old contracts since they require a union. The owners can't have a salary cap or draft without a union but they could press the restart button on all those crazy high contracts if the union dissolves. A new union would need to be established eventually by the players in order to get contracts more than a year and then the NBA could bring back a hard cap and draft (like the NFL which is what the owners really want). Sure this process might take a few years to complete - and it would be choas for a while with no salary cap or draft but in the long run the owners would get what they really need to make the NBA special.

Posted by: Dominator | Nov 14, 2011 4:44:00 PM


That's a lot of If's and it all starts with a misassumption... as the article clearly points out, the union is NOT dissolved... they still exist, they've just decided to let the players take their own actions against the NBA. THAT is a huge difference legally! You really sound like you didn't even get past the first paragraph, so I suggest you go read it again, especially paragraph 3! That specifically contradicts your comment about a "new union would need to be established".

Personally, I put most of the blame on the players, but BOTH sides are alienating fans and I really don't think they will ever recover from this... certainly not for 5-10 years at a minimum and it's likely that any new agreement will have run out and we're back where we started well before that happens! We are going to see some small market teams (maybe even Bobcats) either shutdown or move as a direct result of this whole mess.

Why doesn't the Occupy movement start protesting NBA players? The only difference between their greed and that of Wall Street is that people on Wall Street usually have a share of the risk as well!

Posted by: John - Harrisburg, NC | Nov 14, 2011 4:59:53 PM

What a greedy mess! We should all get our picket signs and protest NBA GREED in front of the Time Warner Coliseum...bring some OWS folks with us...

Posted by: Pacer Delet Shrimp | Nov 14, 2011 5:57:12 PM

Jordan and the other owners have a responsibility to the fans and the city they play in to field a team. It's a lockout not a strike. Owning an NBA is not your regular business because it's connected so many other things in the economy. It's a sports franchise. If Jordan (and the other owners) didn't like the deal they had with the players, he should have never become an owner. Or just get out of the business. A lockout should never have been an option. Stern is the worst of this mess, because the commissioner should have the fans interests first. Clearly no one does. Especially the greedy rich owners.

Posted by: Peter W | Nov 14, 2011 6:11:12 PM

Must be nice to make millions working for a business that loses money. I am sure a lot of people would like to figure out how that works. And then to decide that you are going to sue the business that loses money but still pays you millions? Sure, that makes sense.

Posted by: What? | Nov 14, 2011 7:38:34 PM

Are the NBA Players going to ever agree to anything

Posted by: Channing Ashbaugh | Nov 14, 2011 7:44:52 PM

I really feel that for the NBA to survive, they (both management and labor)need to come up with some solution to guarantee parity. This is the crux of all the NBA's dilema-- unless they contract to a super league of super cities, i.e. L.A., NYC, Miami, they must have some format to insure the financial and on-court success of second-tier cities, i.e. Charlotte, Sacramento, Memphis.

Posted by: eduardo | Nov 14, 2011 8:51:55 PM

Keep them locked out. I find it sickening that players could ever depict where they want to play, and then all but force there way out (Anthony).

Posted by: Jason Warren | Nov 15, 2011 12:49:06 AM

The huge difference is that basketball players WORK for their money. They play 80 games a season (you can argue how hard they play; and I can argue the injury risk, travel demands and wear and tear on their bodies). Those darn bankers sat behind a desk on their collective butts, pushed around a pencil and schemed how to syphon money away from hard-working people through unwarranted fees they did not deserve.

Posted by: jim | Nov 15, 2011 8:49:21 AM

You call what Boris Diaw did last year work? Came in out of shape and his effort was a joke. What about Eddie Curry? How much did he work last year. These players should be embarrassed, but they have put on a pedestal for so long they don't even know what embarassing behavior is. Very very sad.

Posted by: Cranky | Nov 15, 2011 8:59:48 AM

Basketball is not even work, man. Imagine, doing something you love and being paid millions for it.
NBA players are really greedy for not understanding the owners and the league as a whole.
I blame this whole chaos on the players.
This just hits me on the temple, as Peter W posted it,
"Must be nice to make millions working for a business that loses money. I am sure a lot of people would like to figure out how that works. And then to decide that you are going to sue the business that loses money but still pays you millions? Sure, that makes sense."

Posted by: Sean2LH | Nov 15, 2011 9:22:29 AM

It sounds like a bunch of biatches on here. Don't be upset because the Players Union was able to out-negotiate the league owners and David Stern. Remember its really hard trying to stuff shss back into the horse. I'm so sorry for your troubles but "the brothas gone work it out."

Posted by: ClubDog | Nov 15, 2011 10:27:11 AM

Some NBA owners are bad managers. Who forced the Orlando Magic to pay Rashard Lewis all that money. To many teams and not enough talent. People are paying to see the Kobes and LeBrons. Not the Bobcats. The games are packed when the Kobes and LeBrons come to town. Jordan should thank them. Make smarter contracts and get rid of some teams.

Posted by: Eric | Nov 15, 2011 11:02:32 AM

The system forced the bad contracts. The Bobcats didn't even negotiate the contracts of some of the guys on the team. when teams can spend whatever they want it doesn't work. NFL is the best, Hockey is getting better. Baseball and basketball are a joke. It is not a coincidence. Wake up.

Posted by: Cranky | Nov 15, 2011 5:18:39 PM

I hope the owners burn the season. Lock out the players as long as you have to.

Posted by: Curry | Nov 17, 2011 1:25:38 PM

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