Tulane Sports Law professor Gabriel Feldman has come to the forefront in the last few weeks because of his knowledge of the labor negotiations. Surprisingly, he is also one of the few that cling to some optimism. Feldman gave a great interview to the Orlando Sentinel, and while it would be prudent to read the whole thing, I've also excerpted a few of his answers to better help us understand what is going on.
(You can follow Feldman on Twitter: @SportsLawGuy)
Orlando Sentinel: What is the difference between filing a disclaimer of interest and decertifying the union?
Gabriel Feldman: The disclaimer of interest is a less formal process that is initiated by the union itself, and it is a statement that the union no longer wishes to represent the players as their collective-bargaining representative. So it is, in essence, the union walking away from the players.
Decertification requires a formal petition to the National Labor Relations Board and then a formal vote in front of the NLRB where 50 percent of the players have to choose to no longer be represented by the union. So decertification, in essence, is the players walking away from the union.
One of the big issues that the players are going to face in the courts (and something the NFL players faced as well) is the argument that a disclaimer of interest is merely a "sham" designed to push the fight into the legal realm of anti-trust law. The owners will likely attack the players' disclaimer of interest, saying that they did not truly intend to break apart the union, but are merely trying to circumvent labor law. While traditional decertification would have made the players' move more defensible, disclaimer has the benefit of being immediate. The players can immediately take the first steps in their legal proceedings.
OS: Now that this disclaimer of interest has been filed, is there anything that would prevent someone from negotiating with the league on the players' behalf?
Feldman: They're negotiating different things.
At this point, there is no collective-bargaining entity to represent the players, and all that David Boies and Jeff Kessler represent are whatever players come forward to sue the league under antitrust law. What Boies and Kessler would be negotiating is a settlement of the antitrust litigation.
The terms of that settlement could eventually be folded into a new collective bargaining agreement, but it would require two separate steps. The first would be negotiating a settlement of litigation. The second would be negotiating a new CBA.
This answer underscores an important distinction that we need to remember. The CBA negotiation is done for the time being. The fight going forward, the one that the players are seeking to wage now, will have nothing to do with BRI splits or mid-level exceptions. Rather, the fight that the players first need to win will be a legal complaint that the owners are violating antitrust law by locking out the players.
According to Billy Hunter, the players likely will move for summary judgment claiming that the owners, by locking out the players, have engaged in an illegal group boycott and that the lockout is illegal. The players would request that the court end the lockout and force the owners to re-open the league.
Two general paths could then present themselves - 1) this action could lead to litigation many months down the road, or more favorably, 2) it could weaken the owners' resolve and armor so that they would lessen their stance and re-open negotiations. However, the anti-trust issue necessarily has to be dealt with first, and only afterward can a new CBA potentially be brought back to the table. The addition of star attorney David Boies only helps with the antitrust portion of the battle plan, but it is the portion that first must be undertaken if the players are ever to reach the second portion, which is what is necessary for them to return to the basketball court.
OS: So it's not as if Fisher and Hunter can continue to speak with the league, reach a deal and then decide to reform the union, right?
GF: Actually, in some ways that could be an unfair labor practice. You're not entitled to bargain on behalf of players unless you are their bargaining unit. And by disclaiming interest they are ending their status as the players' bargaining unit.
In other words, right now the players are on their own. They no longer have a union president or union reps worrying about the big picture and the minutia of their livelihoods. I think it is one of the reasons why many agents are up in arms over this disclaimer of interest. Some of them are quite upset and believe that the players did not really understand what they were about to undertake when they voted for a disclaimer. As a result, the players have not only been stripped of their high earning potential, but also of many of the tools that the young men rely upon to navigate them through a very high-stakes game of tug-of-war. While players still have agents under their employ to help make their financial and legal decisions, it will become increasingly difficult for the players collectively to keep a single voice and focus.
OS: So is the ultimate upshot here that a season is now much less likely after today's events?
GF: ...Folks have discussed this as the "nuclear option," and David Stern himself has said we're in for a "nuclear winter." It's not irreparable harm here. They can put the pieces back together in time to save the season.
Feldman still retains optimism amidst all of these recent developments, and perhaps there is still an escape hatch available to both parties that saves the season. I still get the sense that both sides are going to dig in and Stern's "nuclear winter" isn't just an analogy to describe the vacuousness year without a season, but also the MAD landscape that would inevitably result from a protracted legal battle.