Tuesday, November 15, 2011

The NBA players and a "disclaimer of interest" vs. a "decertification"

In the past, I've quoted Jim Bakker's autobiography title, I Was Wrong.

And just yesterday, while talking about Ashton Kutcher's defense of Joe Paterno, I mentioned that Kutcher should have spent five minutes researching WHY Paterno was fired - especially since it involved one of his pet causes, child abuse.

Well, in my defense, I DO spend five minutes researching my posts.

I should have spent ten.

In a recent post, I made the statement that the NBA players' union was decertifying itself. Then I got in my car, drove to work, and ended up listening to Bill Handel and Rich Marrotta.

Marrotta noted that the union is NOT decertifying, but that they are instead issuing a "disclaimer of interest."

ESPN explains the difference:

In utilizing a disclaimer of interest rather than an involuntary decertification, the players have chosen a timelier but riskier approach. The disclaimer will likely be challenged by the league as a "sham," as the NFL did when faced with the disclaimer issued by the players' association; the league argued that the dissolution was merely a negotiating tactic, and that the union was still representing the players' interests.

The NBA players' union also passed up the opportunity to use the 45-60 days before a decertification vote to continue negotiating with the additional leverage the pending vote would provide. Instead, the players decided that there was no reason to wait for a vote, because additional bargaining would be futile.

One important difference between the NBA and the NFL - the NFL players utilized the legal option immediately. As Marrotta noted, it was easy to argue that the NFL players were not bargaining in good faith.

But the NBA players have continued to negotiate through training camp, and through the first few weeks of the season. Meanwhile, the NBA owners have gone on record, effectively saying that they will not continue to negotiate, but will instead backtrack to a less favorable offer.

However, remember that legal action was already initiated - by the owners.

The NBA has an ongoing lawsuit in a federal district court in New York, in which the league is attempting to establish the lockout doesn't violate federal antitrust laws. If the NBPA decertifies and the union's dissolution is ruled lawful, the NBA is requesting player contracts become void and unenforceable. Legal analysts disagree over whether the league's federal case directly applies to decertification or only a disclaimer of interest. However, NBA commissioner David Stern said Friday agents "playing with fire" will get burned. "If the union is not in existence, then neither are $4 billion worth of guaranteed contracts that are entered into under condition that there's a union," Stern said.

Wait a minute.

So if the contracts are no longer enforceable, then there's no barrier on the NBA bringing up replacement players.

This is getting interesting.
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