When NBA players chose to break up their union this week and take their contract dispute with NBA owners to court, they were hoping a quick trip to federal court would give them the leverage they needed. Well, the players may end up with leverage - but it won't be quick.
One of the anti-trust lawsuits filed in California this week won't start until March 9, 2012. As the New York Times (paywall) reports, this was the earliest date available in the federal court district in northern California. If both sides wait for the full legal process to begin, the 2011-2012 season will be lost, and each side will lose an estimated two billion dollars. Players also filed a second lawsuit in federal court in Minneapolis, but no initial court date has been announced.
That's a staggering amount of lost potential income for the owners; many players may never be able to recoup what they might lose this year. Now the players have a warning from Charles Grantham, the former executive director of the now-defunct players union. In an interview with USAToday, Grantham says the players' decision to sue is risky: they didn't go to court until after the NBA season was supposed to start, jeopardizing even a shortened season:
"I think it's flawed, the entire legal strategy. Most people feel it's a negotiation strategy. You've already reached 50-50 and you've turned that down and decided to press an anti-trust lawsuit for damages. These anti-trust lawsuits can take forever. They first have to determine what jurisdiction it will be heard. That could take a month. After that you're going to have a hearing, have to make your cases, etcetera. ... Are you going to predict this is going to be settled before Christmas? ... They really have jeopardized the season. I'm not certain it's worth it."
And as USAToday notes, former L.A. Lakers star Kareem Abdul-Jabbar did the math for CNN:
"(Players) might lose 5% or 6% of their salaries, but in today's economic times, everybody's dealing with something like that. So for them to decide that they're going to, like, not play the season if necessary — 100% of nothing is still nothing. They're going to lose a year's pay. It doesn't make any sense."
Still, Forbes columnist Tom Van Riper suggests one way the players might prevail is by pressing the case of rookies and free agents who weren't part of the union during negotiations with owners. Van Riper writes these players could argue they weren't union members at the critical time during contract talks but are still suffering the effects of an owners' lockout anyway. If there's enough people in this category, a court might side with them. He's not hopeful.
And March is a long way off. Both sides can talk to each other (if they still want to talk) but there's no union anymore, so any negotiation on behalf of a group of players is likely to go through one of their new litigators, David Boies, who's on the California case. Boies told the Washington Post, "settling the lawsuit would not give you a collective bargaining agreement, but it would open the way to games being played and it might be a pathway by which an overall resolution could be reached."
Interestingly, Boies recently finished work on a similar case: the NFL labor dispute which also featured an owners' lockout and the breakup (and reformation) of the players' union. In that case, Boies represented the owners and faced off against the football players' lead attorney - Jeffrey Kessler. Kessler has been working as a lead attorney for the NBA players, so the two former adversaries are now on the same side, as the New York Times (paywall) notes.