Attorney David Boies, who represented the NFL during that sport's work
stoppage and now has been brought aboard by basketball's players, said the NBA
lockout violates antitrust laws by refusing to allow players to work.
Boies added that Stern's ultimatum to the now-disbanded union to accept
the owners' last economic model or face a harsher proposal "turned out to
be a mistake" that strengthens the players'
case because it proves that the collective bargaining process had ended.
"If you're in a poker game, and
you run a bluff, and the bluff works, you're a hero. If someone calls your
bluff, you lose. I think the owners overplayed their hand," Boies said at
the players' association headquarters. "They did a terrific job of taking
a very hard line and pushing the players to make concession after concession
after concession, but greed is not only a terrible thing — it's a dangerous
thing."
Dangerous enough to cost the league billions of dollars in damages if
players win.
The players are seeking "treble damages" — meaning triple the amount of the more than $2 billion they would have made under a full
2011-12 season — for what they argue is irreparable harm by
preventing them from playing in their "very short" NBA careers.
"We haven't seen Mr. Boies' complaint yet, but it's a shame that
the players have chosen to litigate instead of negotiate," NBA spokesman
Tim Frank said in a statement. "They warned us from the early days of
these negotiations that they would sue us if we didn't satisfy them at the
bargaining table, and they appear to have followed through on their threats."
Boies acknowledged that the case could take months, but hoped there
would be a settlement before too long.
"Nobody can tell you how long it's going to take. We all know it's
possible to delay lawsuits for a while, but I think it is in everybody's
interest to try to resolve this promptly," said Boies, speaking on behalf
of the California
filing. "The longer it goes on, the greater the damages that the teams
will face, the greater the damages that the players will suffer, and perhaps
most important of all, the longer basketball fans will be deprived of
basketball. So we hope that this will move quickly."
He insisted the players have shown their willingness to negotiate
throughout.
"You can't negotiate by yourself," he said. "You can only
negotiate if you've got somebody who's willing to sit down and negotiate with
you."
The two suits — one filed in conjunction with the players' association
in the Northern District of California and another filed in Minnesota — likely were filed with a
favorable venue in mind.
The Minnesota
district court has been favorable to the NFLPA during litigation dating to the
1980s. The federal court in San Francisco is
under the jurisdiction of the 9th U.S.
Circuit Court of Appeals, considered the most liberal of the 13 circuit courts.
The NBA already has filed a
pre-emptive lawsuit in New York seeking to prove the lockout is legal and
likely would push for cases to be moved there to gain the legal home court.
Though Stern has ridiculed the players' "losing" strategy,
Boies said he believes NBA players have a
stronger case than NFL players did. Their decertification, he said, could have
been argued as a sham because they walked out on the bargaining process before
it was technically over and brought litigation. He said Stern's actions left NBA players without
options beyond seeking legal relief.
"Here you had an ultimatum from the owners that made absolutely
clear that the collective bargaining process was over," he said, adding
that Stern's threat is quoted in the lawsuit. "That's not collective
bargaining, and so you have a very distinct
set of facts here."
The California
filing says that in 2007, Stern met with union negotiators and demanded the
players reduce their revenue share from 57
percent to no more than 50 percent and
"insisted on a much more restrictive salary cap, which would restrict the
market for player services."
Stern threatened at that meeting, according to the lawsuit, that the
league was "prepared to lock out the players for two years to get
everything" that the NBA owners sought
and that "the deal would only get worse after the lockout."
The league locked out its players on July 1. Tuesday marked the 138th
day of the lockout and the players' first missed paycheck. The season was
scheduled to start Nov. 1, but already games through Dec. 15 have been canceled
— a total of 324 or 26 percent of the season.
The league's latest proposal, which was rejected by the players on
Monday, called for a reduced 72-game season to start Dec. 15.
Although the NFL was able to get its recent labor dispute resolved
quickly enough to lose only one preseason game, the NHL lost the entire 2004-05
season, and the NBA's last work stoppage led
to a 50-game season in 1998-99.
Boies said players will not seek a preliminary injunction to lift the
lockout. Because the lockout "arguably grew out of prior collective bargaining discussions,"
Boies said he believes it would be very difficult to get a court to immediately
halt the lockout and such a path would delay the case.
Anthony and Chauncey Billups of the Knicks, NBA scoring leader Durant, rookie Kawhi Leonard
and Grizzlies forward Leon Powe were listed as plaintiffs in the complaint
filed in conjunction with the players' association in the Northern District of
California against the NBA and the owners of
its 30 teams. That case has been assigned for now to U.S. Magistrate Judge
Donna M. Ryu in Oakland , Calif.
Timberwolves forward Anthony
Tolliver, Pistons guard Ben Gordon, free agent forward Caron Butler and Derrick
Williams — the second overall draft pick by Minnesota in June who has yet to
sign a rookie contract because of the lockout — were listed as plaintiffs in
another lawsuit filed against the league and owners in Minneapolis, where NFL
players had some level of success in a similar court proceeding this summer.
Boise said there might be other,
similar cases to those filed on behalf of NBA players
in California and Minnesota . The ideal scenario, he said,
would be to bring them all together in the Northern District of California.
The plaintiffs represent various types of players affected by lockout —
those under contract, free agents and rookies.
They argue in the Minnesota
filing that the lockout "constitutes an illegal group boycott,
price-fixing agreement, and/or restraint of trade in violation of the Sherman
Act" and that the owners' final offer for a new CBA would have "wiped
out the competitive market for most NBA players."
Boies said the lawsuit was an attempt to restore competitive free-market
conditions
Players made numerous economic concessions and were willing to meet the
owners' demands of a 50-50 split of
basketball-related income — a transfer of about $280
million annually from their feeling the league's desires to improve
competitive balance would hurt their guaranteed 57
percent under the old deal — but only if the owners met them on their
system wishes.
Owners wanted to keep more of the league's nearly $4 billion in basketball
revenues. And they sought a system where even the smallest-market clubs could
compete, believing the current system would always favor the teams who could
spend the most.
And Boies said it was those owners who put the league in this position.
"If it were up to the players, there would be games being played
right now," he said. "There is one reason and one reason only that
the season is in jeopardy and that is because the owners have locked the
players out and have maintained that lockout for several months.
"If there's not a basketball season,
responsibility for that lies in one place and one place only, and that is the NBA and the NBA owners
because they're the ones who are keeping the players from playing."
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