233 replies to this topic

[bowiac]

That is essentially what the NFL did, and it earned them an adverse court ruling--if I had to guess, this will be subject 1 or 2 in the forthcoming wave of litigation.

The NFL lost their "lockout insurance" case because of specific language in the 1993 settlement of the last major wave of lawsuits that made what they did illegal.

I have no idea if the NBA has a similar card to play. It's possible that the "lockout insurance" is totally legal.

[Dehere]

It wasn't the lockout insurance per se that caused the court to rule against the NFL. It was that the league negotiated the "insurance" as part of rights extensions that saw them get only a 2-3% increase from the networks at a time when the NFL could have got a lot more. The players argued that the league had not maximized the value of the TV deals, which violated their obligation to negotiate those deals in good faith.

The most recent NBA deals with ESPN and Turner netted sizable increases at a time when you could have easily argued that the networks could have taken a tougher negotiating position. I think the NBA players will have a hard time arguing that their current TV deals did not maximize revenue for the sake of securing guaranteed lockout payments.

[ElUno20]

Broussard brought up a great point about this late decertification. The reason the NFL got shot down was partly because the judge saw it as a negotiatibg tactic. In this case, the players have been negotiating the last 2-3 months so it looks like they've actually tried.

[steveluck7]

Why is the assumption that the owners and stern are the only ones who can play a smart move ?

Maybe because, compared to the players, they are the only ones who have?
Take the NFL situation
The NFLPA urged its players to save a % of their game checks last season in the event of a prolonged lockout
The NBAPA has Delonte West working at Home Depot

The NFLPA too out its own version of (legal) Lockout insurance and played the card at the right time, getting the owners attention and saving the entire season
The NBAPA has no such policy (to anyone's knowledge) and even if they do, they've already lost a significant portion of their season

The NFLPA began the de-certification process early enough to allow for litigation, judgements, and appeals and were able to salvage the entire season
The NBAPA has already lost a significant portion of their season and are just now starting the process... assuring that a larger portion of the season gets wiped away.

I'm not saying that the owners have been infallible in all of this, they've done some stupid stuff but the players have not acquitted themselves well at all.

[bowiac]

Broussard brought up a great point about this late decertification. The reason the NFL got shot down was partly because the judge saw it as a negotiatibg tactic. In this case, the players have been negotiating the last 2-3 months so it looks like they've actually tried.

I don't know that I really buy this. First - in both cases, the parties had been negotiating for over a year. Like I said earlier, I'm not a labor lawyer, but that also wasn't my recollection of the case. They got shot down there because the court decided that an injunction stopping the lockout was improper with a non-violent labor dispute.

I'm not sure what significance, if any, the late decertification will have.

[bowiac]

The NFLPA urged its players to save a % of their game checks last season in the event of a prolonged lockout
The NBAPA has Delonte West working at Home Depot

The NFLPA too out its own version of (legal) Lockout insurance and played the card at the right time, getting the owners attention and saving the entire season
The NBAPA has no such policy (to anyone's knowledge) and even if they do, they've already lost a significant portion of their season

The NBAPA did urge players to save money in the event of a prolonged lockout. I haven't heard anything about them having an insurance policy outright, but I also wouldn't really rely on what we've heard as a definitive statement of what's true.

The NFLPA began the de-certification process early enough to allow for litigation, judgements, and appeals and were able to salvage the entire season
The NBAPA has already lost a significant portion of their season and are just now starting the process... assuring that a larger portion of the season gets wiped away.

The NFLPA engaged in antitrust litigation to stop the lockout, and lost. The NBAPA saw this, and correctly recognized that attempting to stop the lockout via antitrust litigation was unlikely to be effective, so they didn't go that route initially, preferring to continue to negotiate with the owners. If the NBAPA had gone down the road of the NFLPA, we'd be giving them shit for engaging in a lawsuit which we already know they're unlikely to win.

The NBAPA's best legal remedy actually needs the season to get wiped away. Suing to stop the lockout failed. You can still sue for damages, but in that case, you need to have actual damages, which requires the season (and paychecks) to be lost. Decertifying earlier would have been pointless.

[maufman]

I don't know that I really buy this. First - in both cases, the parties had been negotiating for over a year. Like I said earlier, I'm not a labor lawyer, but that also wasn't my recollection of the case. They got shot down there because the court decided that an injunction stopping the lockout was improper with a non-violent labor dispute.

I'm not sure what significance, if any, the late decertification will have.

Assuming the decertification goes forward, I assume it will unfold roughly the same way the NFL case did -- after they decertify, the players will initiate one or more lawsuits against the NBA and the clubs, and they will seek an immediate injunction stopping the lockout. The owners will counter with an unfair labor practice grievance, arguing that the decertification is a sham, and they will argue that the court does not have authority to issue an injunction while that grievance is pending before the National Labor Relations Board. The players presumably will not sue in a court that is bound by last summer's ruling in the NFL case, so the judge would not be bound by that ruling (though I think the court is more likely to follow that decision than not).

A few wrinkles:

1. The owners have promised to seek to nullify existing player contracts if the players decertify -- whether the owners have the right to do so is unclear.

2. The NLRB never ruled on the NFL owners' grievance, but if the NBA lockout drags out long enough to cancel the 2011-12 season, an NLRB ruling is likely. If that ruling goes in the players' favor, the owners would have an uphill battle to defend the antitrust suit on the merits.

3. The Supreme Court's decision in Wal-Mart v. Dukes would probably bar the players from bringing a class-action lawsuit, which might result in several different groups of players each maintaining their own suits. The cases should consolidate eventually, but by filing multiple suits, the players might get to make the injunction argument before a few different judges.

Edited by maufman, 15 November 2011 - 02:28 PM.

[Brickowski]

The suit brought to enjoin the NFL lockout was in my view a sideshow that hads little or no chance of winning, even if Judge Doty had not been replaced by Judge Nelson. What mattered was the suit brought by Brady, et. al. for (among other things) violations of Section 1 of the Sherman Act. The NBAPA should have moved to decertify 45 days BEFORE July 1, 2011, and should have brought its Sherman Act claims as soon as the lockout was put into effect. Then the owners could chew on the possibility of treble damages, which is a very real possibility since the NBA does not have a congressional antitrust exemption (neither does the NFL). The NFL also lost the American Needle case, in which it tried to claim that the NFL was a single entity for antitrust purposes instead of a cartel.

As I've said earlier, if Bily Hunter were not such a putz, we might be watching NBA basketball rigfht now instead of contemplating a lost season. And the owners were putzes too. They could have had a deal at 52% of BRI which would have been a nice win for them, but they told the players to take 50% or leave it. As the saying goes, the bulls sometimes win, the bears sometimes win, but the pigs always lose.

[maufman]

One lawsuit, Brick. The injunction was an opening salvo in the broader Sherman Act case.

[Brickowski]

One lawsuit, Brick. The injunction was an opening salvo in the broader Sherman Act case.

Ok, thanks for correcting me to point out that it was a claim (for an equitable remedy) in the same suit. But it's not a claim that anyone expected the players to win. The proper result as a matter of policy (which the court reached) is that both sides must suffer the economic pain associated with a lockout (or a strike) because pain is a strong inducement to compromise.

Also, if you look back at the history, before passage of the NLRA and similar state statutes, pro-employer courts routinely enjoined strikes. The NLRA put an end to that, although under present law the president can still enjoin a strike for 90 days (I think) if it creates a "national emergency." This was part of the Taft Hartley Act, I believe. Had Nelson enjoined the lockout, it might have tiilted the playing field too far in the other direction.

Edited by Brickowski, 15 November 2011 - 06:48 PM.

[bowiac]

Boies has said that they will not pursue an injunction even. I think their plan is to use the threat of $6B+ in annual damages to force the owners to cave. That's a pipe dream, but it's also a number big enough to get the owner's attention. Losing the season may not hurt when your profits are in the $10M/team range. Losing $200M/team with no revenue coming in on the other hand is potentially crippling.

This is the first step the players have taken that can make the owners feel actual pain rather than a PR war.

[HomeRunBaker]

That is essentially what the NFL did, and it earned them an adverse court ruling--if I had to guess, this will be subject 1 or 2 in the forthcoming wave of litigation.

Far different. The NFL negotiated this into their TV contract as insurance to a lockout showing that they were preparing or planning on the upcoming lockout.....the NBA did not such thing as they have always included this clause into their TV contracts.

Broussard brought up a great point about this late decertification. The reason the NFL got shot down was partly because the judge saw it as a negotiatibg tactic. In this case, the players have been negotiating the last 2-3 months so it looks like they've actually tried.

This is where Hunter had everyone fooled. He gave all these "concessions" which really weren't concessions if he never delivers the proposal to the players. It is very possible that the past 2-3 months of "negotiations" were a sham held for the sole purpose of showing the courts that the players were negotiating in good faith and that Hunter never had an intention of allowing the players to vote on anything less that a 52.5% split.

In other news, how many of the leagues 450 players and their families do not have insurance coverage today?

Edited by HomeRunBaker, 15 November 2011 - 09:29 PM.

[Brickowski]

In other news, how many of the leagues 450 players and their families do not have insurance coverage today?

Along with 45-50 million other people in this country. But I bet Wyc Grousbeck can still afford his insurance premiums.

Home Run Baker, I don't know if your posts are designed to generate sympathy for the players, but so far you are doing a pretty good job.

[HomeRunBaker]

Along with 45-50 million other people in this country. But I bet Wyc Grousbeck can still afford his insurance premiums.

Home Run Baker, I don't know if your posts are designed to generate sympathy for the players, but so far you are doing a pretty good job.

We all make choices. The players choice was to not play basketball or have their 2011-12 guaranteed contracts honored.......oh wait, no they weren't given that choice. Billy Hunter negotiated a phony deal he never had any intention of presenting to the players for a vote.

[Brickowski]

Err... I think it was the owners who elected to lock the players out, not the other way around. As for Billy Hunter, he got a terrible deal because he refused to maximize the leverage that he might otherwise have had. The players were right to reject what was presented to them. Do you think the players are stupid?

Why don't you just toe David Stern's party line and blame it all on the greedy agents?

Edited by Brickowski, 15 November 2011 - 11:09 PM.

[mt8thsw9th]

In other news, how many of the leagues 450 players and their families do not have insurance coverage today?

How will they afford COBRA from the pittance they made this year?!?!?

Edited by mt8thsw9th, 15 November 2011 - 11:50 PM.

[HomeRunBaker]

Err... I think it was the owners who elected to lock the players out, not the other way around. As for Billy Hunter, he got a terrible deal because he refused to maximize the leverage that he might otherwise have had. The players were right to reject what was presented to them. Do you think the players are stupid?

Why don't you just toe David Stern's party line and blame it all on the greedy agents?

Do i think the players are stupid? The players are very stupid to allow Hunter to control their earning power......many who unknowingly have now relinquished all of that earning power that will be gone forever. The player in the final year of a $10m contract who may never receive another dollar of guaranteed NBA money? The fringe player with $1m guaranteed in his final year who may never receive another dollar of guaranteed money? Tell these dozens and dozens of players that they were right to throw away NBA money they will never see again.

[Brickowski]

Do i think the players are stupid? The players are very stupid to allow Hunter to control their earning power......many who unknowingly have now relinquished all of that earning power that will be gone forever. The player in the final year of a $10m contract who may never receive another dollar of guaranteed NBA money? The fringe player with $1m guaranteed in his final year who may never receive another dollar of guaranteed money? Tell these dozens and dozens of players that they were right to throw away NBA money they will never see again.

Yes, the players will experience considerable economic pain-- but so will the owners. Not only will the owners lose a season's revenue, but they will also lose equity as their franchises decline in value. And that doesn't take into account the costs of defending multiple antitrust suits brought by the players and the damages the players might be awarded.

I see in the news that several groups of players have already sued the league for Sherman Act violations. I expect other groups of players to follow suit, and then I expect the league to attept to consolidate all of these actions in the Southern District of New York. I also expect the league to explore hiring replacement players or inducing some current players to return. Once the union disappears, each player is an independent contractor who can cut his own deal wherever he likes: overseas, or with an existing NBA franchise.

Edited by Brickowski, 16 November 2011 - 09:25 AM.

[HomeRunBaker]

How will they afford COBRA from the pittance they made this year?!?!?

How many know what COBRA is?

Delonte tweet:

I ain't got no health insurance at the moment....nor do my ....13depemdents....kids get sick around this time of year....

[fairlee76]

Do i think the players are stupid? The players are very stupid to allow Hunter to control their earning power......many who unknowingly have now relinquished all of that earning power that will be gone forever. The player in the final year of a $10m contract who may never receive another dollar of guaranteed NBA money? The fringe player with $1m guaranteed in his final year who may never receive another dollar of guaranteed money? Tell these dozens and dozens of players that they were right to throw away NBA money they will never see again.

How many of the guys you speak of (likely last NBA contract running out this season) have the self-awareness and business acumen to realize that this is their last contract? I am betting that there are a lot more deluded, Antoine Walker types than players who appreciate that their careers are fleeting.

[Brickowski]

Oh please.

1. The older stars, e.g. Pierce, Allen, Kobe, Nash, Duncan, Garnett, etc. are already set for life. Some of the younger players are also set for life, e.g. LeBron with his sneaker deal.

2. The young players, especially the stars, e.g. Durant, Rose, Rondo, would be stupid to lock themselves into a crappy deal for the next ten years.

3. The lockout hurts older players who haven't made much money, or the handful of spendthrifts like Twoine who made good money and squandered it. But this group represent a minority.

4. Sure, some players have little or no business acumen, but many of those players are represented by agents who have quite a bit of it. These players have access to better financial planners than most of us do.

[wutang112878]

How many of the guys you speak of (likely last NBA contract running out this season) have the self-awareness and business acumen to realize that this is their last contract? I am betting that there are a lot more deluded, Antoine Walker types than players who appreciate that their careers are fleeting.

This is a complex issue. If the players dont realize this, and I am sure a lot of them do not, its the job of their agents and union to try to get them to understand this that eventually the big checks from the NBA are going to end. On the flipside of that all the players should have a moral obligation to vote not just for their short-term interests but also for the long-term interests of the players who will be impacted by this CBA after they leave the league. Its no different than a teacher who is about to retire voting on a new contract the summer before their last year, they should balance voting for just themselves and their colleagues.


Stepping back from this a bit, a big picture question: is the NBA union now the worst of all the 4 major sports at this point? The NHL situation was very, very bad but now they actually have a deal that is providing the sport stability and I believe growth. The NBA union is clearly behind the MLB and NFL union, so the debate seems to be if its better than the NHL union. And this is very sad, considering of the 4 major sports the NBA players are also probably the worst at managing their money as well. And another big picture question, without major revenue sharing changes and a system that allows all teams to be on equal footing regardless of their financial capabilities, what is the strategy for the NBA to actually grow during this CBA? Sure with what the owners are proposing they will make more money, but unless they get rid of the current have and have nots system I dont see how the NBA grows because they have not made much progress in terms of international growth so I would imagine growth would have to come from domestic sources, ie more interest from fans here. Overall, based on the trajectory of the negotiations it looks like ultimately the NBA is still going to be in a very bad state.

[mt8thsw9th]

How many know what COBRA is?

Delonte tweet:

Well that is unfortunate because I'm pretty positive all of them have access to health insurance through their former employer.

http://www.gohealthi...ealth-insurance

It could just be that Delonte is a moron.

[SumnerH]

I firmly believe that many of the teams are losing money. It's just a matter of how much money.

For instance, the Celtics, one of the so-called big market teams, only receive about 45-50 million annually in television revenue (includes local and national broadcast rights) during the 2010-2011 season. The team had a 76 million dollar roster last year so they had to make up the difference just from ticket sales, concessions, etc.

WR Hambrecht puts total Celtics revenues for 2010 at about $150 million, fwiw.

http://www.statista....ics-since-2006/

[bowiac]

I dont see how the NBA grows because they have not made much progress in terms of international growth so I would imagine growth would have to come from domestic sources, ie more interest from fans here. Overall, based on the trajectory of the negotiations it looks like ultimately the NBA is still going to be in a very bad state.

Is this true? I'd seen it claimed that basketball was on pace to surpass soccer as the world's most popular sport in like 25 years. Now that's not all NBA, but they will get a good chunk of that growth, no? Is that all bullocks? (It could be - I've never looked into it).

[lostjumper]

How many know what COBRA is?

Delonte tweet:

Isn't that why their Union has lawyers, too tell them that? Is everyone in the NBPA too stupid to know what COBRA is? How hard is it to send out documentation to all union members on what COBRA is and how to get it?

Delonte having 13 dependents speaks so much about his level personal responsibility...no wonder he has to get a job at Home Depot after making millions in the NBA.

[wutang112878]

Is this true? I'd seen it claimed that basketball was on pace to surpass soccer as the world's most popular sport in like 25 years. Now that's not all NBA, but they will get a good chunk of that growth, no? Is that all bullocks? (It could be - I've never looked into it).

The way I see it NBA revenue has 4 major components:

• TV contracts - national and local for each team
• Ticket and concession revenue
• Merchandise sales
• Then the minor revenue sources like: radio deals, advertising, signage, etc

Yao helped open up China to the NBA, but I havent seen any numbers that indicate that international revenue has really increased. As far as I know the NBA hasnt ever been able to get a big $ international TV deal, and I am sure they got some merchandise sales from China and throughout Europe, but I dont think its substantial enough to say increase BRI even a percentage point. So while the sport may be gaining popularity over the globe, Stern has not found a way to generate revenue as a result.

[HomeRunBaker]

Isn't that why their Union has lawyers, too tell them that? Is everyone in the NBPA too stupid to know what COBRA is? How hard is it to send out documentation to all union members on what COBRA is and how to get it?

This was a union that had at least one team rep (ya know, the guy keeping the other 14 members informed) who didn't even know when the old CBA expired, another immediately bolt for Russia the moment a lockout was announced, and others traveling while playing exhibition games rather than being involved in meetings. These players do have access to financial planners and advisors but do not live in the same world as you and i do. You can lead a horse to water.......

[Brickowski]

Well, even if it was by accident, the players now have David Boies negotiating on their behalf instead of Billy Hunter. That's a big upgrade IMHO.

[maufman]

The intersection of sports and business isn't normally Bill Simmons's strong suit, but this article on the lockout is excellent. There are parts where I disagree with Simmons (e.g., Kessler is a hired gun, brought in to play a role), but you don't have to agree with everything Simmons says to appreciate his perspective.

[HomeRunBaker]

First severe overseas injury as JR Smith is done with a blown out knee. He has no contract and was an unrestricted free agent, wow! It was only a week or two ago when Smith tweeted "I didn't sign up for this".....oooops.

http://www.cbssports...748484/33426541

(Smith's injury occurs around the 22 second mark of video)

Edited by HomeRunBaker, 20 November 2011 - 10:07 PM.

[jon abbey]

First severe overseas injury as JR Smith is done with a blown out knee. He has no contract and was an unrestricted free agent, wow! It was only a week or two ago when Smith tweeted "I didn't sign up for this".....oooops.

His MRI was negative, he played again last night and had 15/6/4.

https://twitter.com/#!/NiuBBall/status/138974464867172353

[Rook05]

His MRI was negative, he played again last night and had 15/6/4.

https://twitter.com/#!/NiuBBall/status/138974464867172353

There's something wonderful about the idea that internet can provide us with the following JR speak to English, English to Chinese, and Chinese back to English quote:

"After knowing this result, JR Smith also indicated during the interview: “I felt that now was much better, doctor told me, my injury is not very serious, I felt that I…can restore very quickly… Then I will return to Zhejiang immediately with the team…, I hope that will continue to [play] this season for Zhejiang.”"

As someone who's watched JR for the pas few years here in Denver, I demand a Mr. Smith Goes to China reality show.

[HomeRunBaker]

His MRI was negative, he played again last night and had 15/6/4.

https://twitter.com/#!/NiuBBall/status/138974464867172353

This didn't pass the smell test to me. Further research shows that Smith has missed 3 training sessions due to ïllness" (he was caught shopping in Shanghai one of these times), made outrageous demands that were not covered in his contract, and team officials openly questioned whether he faked his knee injury to get out of a game that his team was down by 40 after he refused to take the teams MRI. This kid is a mess.