Why decertify nba union

Just in case the negotiations between NBA players and owners this weekend needed added pressure Frustrated by the lack of progress in talks to end the day lockout, some players are considering an appeal to the National Labor Relations Board to decertify the National Basketball Players Assn.

If the union decertifies, players could then sue the NBA under U. They would be likely to claim the league conspired to deny their ability to market themselves by locking out players when the collective-bargaining agreement expired July 1. Based on the last NBA lockout in , the first week of January would be the latest possible deadline for an agreement to save the season, and a game schedule could then begin in early February.

The threat of decertification might move owners to a quicker resolution. Talks on a new collective-bargaining agreement have broken down in each of the last two weeks, though the parties are set to try again Saturday in New York.

Then the NLRB would preside over a vote by players, with decertification taking place if more than half the players agreed. Owners are demanding a split of league revenue. A move to decertify the union would mark the second time this year it happened in a major pro U. In March, the union representing NFL players decertified when 17 days of negotiations with a federal mediator failed to lead to a collective-bargaining agreement between owners and players.

Billy Hunter, Derek Fisher and other union leaders would likely see their influence over players wane, while other players or possibly player agents could attempt to fill the leadership void. Without a unifying entity, however, rival factions of players and agents could emerge and hinder attempts to resolve the labor crisis, especially if the NBA is not sure with whom they should negotiate.

Decertification would provide players with a powerful legal weapon: the ability to file federal antitrust litigation against the league. Indeed, without collective bargaining between NBA players and the league, various restrictions on how teams compete with one another -- such as the salary cap and the NBA draft -- would become subject to federal antitrust law.

Although generally popular with fans and although they promote parity, these restrictions are also at least partly anticompetitive.

After all, they reflect agreements among competing teams to refrain from free-market competition for players. This reduced competition limits players' earning potential and choice of employers. Without an NBA draft, for instance, top amateur players could encourage multiple teams to bid for their services and those players could sign with teams in preferred locations. The comparative competitiveness and anti-competitiveness of these rules would provide the basis of any antitrust litigation; if sufficiently persuasive, players could convince a judge to issue injunctive relief in the form of ending the lockout until a full trial on the merits of the claims.

If players ultimately prevailed in such a trial -- which would likely take years -- they would be entitled to treble damages, which would likely mean billions of dollars. Decertification is not an immediate event, nor is it instantly reversible.

Instead, it normally requires recognition by the National Labor Relations Board, a federal agency that regulates union-management activities. In the alternative, players could seek a disclaimer of interest, which is a similar but swifter and more retractable step and refers to the players' association disclaiming interest in representing players. Either decertification or disclaimer of interest would enable players to file antitrust litigation. NBA players are inclined to opt for decertification because it could help them defend against the league's unfair labor practices charge with the NLRB.

Decertification would signal that the players are serious about the Players' Association no longer representing them; only disclaiming interest could suggest that the players' association will reclaim interest the moment a deal is reached with the NBA. The NBA could argue that the players are only disclaiming interest to bring antitrust litigation. For starters, the NBA has been one step ahead of the players when it comes to antitrust litigation.

In August, the league filed a lawsuit in the U. Court of Appeals for the Second Circuit. The NBA asks the court for preventative relief, namely to block players from challenging the lockout on antitrust grounds. More ambitiously, the league also asks the court for permission to void player contracts in the event the union legally decertifies. This week U. District Judge Paul Gardephe ruled that he needs more time to evaluate the claims.

His decision would likely delay the filing of separate antitrust litigation by players. In antitrust litigation with players, the NBA is bolstered by recent precedent, specifically the U. In that case, the Eighth Circuit clearly stated that the NFL was authorized to conduct an injunctive-proof lockout under federal law, specifically the Norris-La Guardia Act.

Although the Eighth Circuit's opinion is only influential -- rather than binding -- in other federal jurisdictions, it supplies the NBA with a favorable opinion from a very similar and recent dispute. The NBPA did not respond to requests for comment. The sides on Thursday were in talks aimed at ending a lockout that began July 1. Instead, it plans to continue to pursue the unfair labor practices charge it filed with the National Labor Relations Board against the league in May.

Multiple sources last week said there are more than five agents who have been talking for months about decertifying the NBPA and filing an antitrust lawsuit against the league. The NBPA would have to be decertified for players to file an antitrust action because the players cannot sue the league while they are members of a union.

If agents are able to push for a vote to decertify the union, it could create a host of issues for the owners, foremost of which would be that there is no one with whom the owners could negotiate a new collective-bargaining agreement. It is not clear, under the decertification scenario, whether the NBPA would be run as a trade association instead of a union — as was the case for the NFL Players Association — and if so, who would run that association.

The agents who have been holding discussions have been secretive about their plans. But as for reaching a new labor deal, an attorney who is advising NBA players said the purpose of the lockout is to miss games to put pressure on players to fold and agree to major concessions.

An NBA player agent who has had conversations with but is not part of the group of agents who want to decertify the union also said the fact that agents are not on the same page as the union could spur a deal. The agent said that because the threat of decertification is legitimate, it could bring together the owners and union leaders, both wanting to avoid what could be a chaotic and uncertain situation. The agent said that although he does not favor decertification currently, that could change if Hunter and NBA Commissioner David Stern are unable to strike a deal.

He said he believes, as of last week, the majority of players were not for decertification, although a majority of agents did favor it as a strategy. Both the agent and the attorney requested anonymity, saying players were divided on the issue of whether to decertify the union. It is not clear how many agents and how many players favor decertification. Although a federal court issued an injunction against the lockout, the 8th U. Circuit Court of Appeals overturned that injunction. But lawyers said the type of decertification the NBA agents are seeking is different.

Although what the NFL players did was commonly referred to as decertification, legally it was a disclaimer of interest, meaning the union voluntarily ceded interest in representing NFL players in collective bargaining; it was an action taken and supported by the NFLPA. The NFLargued the decertification was a sham and challenged it in court.