Lawsuits Move: From The Court To The Courts

The NBA players have filed suit against the league, alleging antitrust violations. And what has frequently been a war of words may now become a true legal fight. … Along, of course, with more incendiary words. And while players' names are specifically included in the suits, this action elevates the battle from the hands of the athletes to their high-paid attorneys. And to the courts.

The two antitrust actions include names like Kevin Durant and Carmelo Anthony. Oh, and Dallas Mavericks forward Caron Butler. What the players are seeking is "treble damages'' totaling three times their lost wages. The "union'' is now a "trade association.'' The "decertification'' is instead a "disclaiming.'' The owners' "lockout'' is now termed by the players lawyers as an owners' "boycott.''

"The players are willing to start playing tomorrow if (the owners) end the boycott," players attorney David Boies tells reporters in New York. "We would hope that it's not necessary to go to trial and get huge damages to bring them to a point where they are prepared to abide by the law," Boies said,.

It is the owners' position that this action was predicted by them in an earlier legal action, and that the "disclaiming'' is itself a ruse, a bargaining tactic. If a judge sees it that way, it means negotiations must still be open and there is no antitrust violation.

From NBA spokesman Tim Frank: "It's a shame that the players have chosen to litigate instead of negotiate. 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."

It is the players' position that the owners are the ones who are behaving predictably and that they are the ones who are simply protecting themselves.

A key point: Where will the lawsuits be heard. Some areas are more "employee-friendly,'' others more "employer-friendly.'' The lawsuits by the players began yesterday and are being filed in courts of their own choosing. But back in August the league filed a preemptive lawsuit regarding the union taking this exact approach, and that already-ongoing case may result in the cases being consolidated in the court setting chosen by the league: New York. (Ken Berger of CBS has some of this location stuff in detail here.)

The only good thing here: "Disclaiming'' instead of "decertification'' essentially speeds the start of the process. It's good for the players, that is, who can file antitrust lawsuits immediately rather than having to wait 45 days or more for a decertification vote. And it's good for fans who want to see hoops, in forcing the sides to make hard decisions sooner. But if the sides truly leave this to the courts, an agreement could still literally be years in the making, in part because in these cases, courts tend to actually want the sides to "fight to the death'' rather than intercede. Long and costly legal battles are not the rational way to settle differences - but the path of these negotiations wandered off the sanity trail weeks ago in this battle of egos and will.

There could be a settlement that creates a collective bargaining agreement. But the players would have to re-unionize and the owners would have to agree to enter an agreement to negotiate with that body. A judge could also bring the sides together for arbitration, but they've already been subject to mediation, and that didn't work.
Is there a union or isn't there? Are each sides' moves bargaining tactics or are negotiations really closed? Are all players' contracts void? If the court rules in the players' favor – that the "disclaiming'' was filed in good faith – are the owners prepared to pay millions in punitive fines/salary to players who didn't even play?

Much of this is uncharted waters for the sports world. … spoken in a language the sports world is not fluent in.

Get used to it.

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