The news came only hours before the locked-out players, including stars Carmelo Anthony and Kevin Durant, filed class-action antitrust lawsuits against the league on Tuesday in at least two states, moving pro basketball’s labor dispute from the negotiating table to federal court.
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 the 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 plaintiffs] 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.”
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.
The league’s latest proposal, which was rejected by the players on Monday, called for a reduced 72-game season to start Dec. 15.
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.
Boies 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.”