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The NBA Legal Playoffs

The real American game has always been business, played for centuries with winners and losers along the way. The National Basketball Association has repeatedly claimed that it is a loser at this market contest.
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Now that the finals of the NBA playoffs are set -- Miami against Dallas -- we can focus for a few weeks on high-quality professional basketball and try to ignore the high-quality labor relations work going on in corporate offices in New York City. The "Heat" of Miami -- LeBron was wrong when he told us he was bringing his "talents" to South Beach, which is in the separate city of Miami Beach, more than three miles east of the American Airlines Arena on Biscayne Boulevard -- are presumed to be the favorites in this match-up. The strategy, apparently devised by the players themselves, of uniting James, Wade and Bosh on one team, has finally jelled them into champions-elect. They dismantled both the Celtics and the Bulls on their way to the ultimate crown. It is true that Dallas has the brilliant Dirk Nowitzki, the seven-footer from Germany, who has finally proven European excellence in the American game.

The real American game has always been business, played for centuries with winners and losers along the way. The National Basketball Association has repeatedly claimed that it is a loser at this market contest. (Could you imagine losing $300 million in a year and not being an auto manufacturer?) Commissioner David Stern claims that two-thirds of his clubs are losing money. Who will help the NBA in its time of need? Of course, the owners want it to be their employees.

Way back in the 1960s, predecessors to these players organized a union to represent their interests in dealing with their employers, the clubs. Their entertainment product has come a long way since then -- the old videotapes show scrawny tall guys in short shorts -- but the basic dynamics of the labor relations game has remained fairly stable. That game is played one-on-one across the negotiation table, with side trips to the press room and to various legal arenas.

The NBA and the NBPA are parties to a collective bargaining agreement that expires on June 30, about a month from now. The agreement is a complex document filled with measures that limit player and team salaries. The union would be pleased to maintain the status quo, but the Commissioner has plainly and repeatedly stated that this would not occur.

This week, the Players Association filed an unfair labor practice charge -- wrongly reported in the press as a "complaint" -- with the National Labor Relations Board's New York office, claiming bad faith bargaining on the part of the League. In its press release, the PA explained: "We have urged the Board to investigate this matter quickly and to seek an injunction against the NBA's unlawful bargaining practices and its unlawful lockout threat." The charge alleges that the NBA violated federal law by "making harsh, inflexible, and grossly regressive 'takeaway' demands that the NBA knows are not acceptable to the union and not supported by objective or reasonable factors or balanced by appropriate trade-offs." In addition, it claims the NBA has been "repeatedly threatening to lock out union-represented employees upon contract expiration regardless of negotiation status, without fear of a strike, based on a pretextual claim of financial weakness, and despite the foregoing bad-faith bargaining."

The union also alleges the NBA has been making threats and demands that "are inherently destructive to the collective bargaining process and to employee rights, and that reflect the NBA's hostility to that process and those rights and are intended to signal to union-represented employees that back-and forth bargaining is futile." The charge also cites the NBA's failure to supply adequate financial data so the union can determine whether its "plea of poverty" is based on real facts.

In case you might think this is a "game changer," it is not. The NBPA has launched a "four" point shot from mid-court. The Board, it seems to me, is most unlikely to seek an injunction as it did against Organized Baseball in 1995 when the owners made interim unilateral changes in terms and conditions of employment without bargaining with its union to an impasse. This, by comparison, appears to be a plain vanilla, bad-faith-bargaining charge, tough to prove since the parties are still regularly meeting and dealing with the issues -- even if somewhat one-sided.

The NBPA needed to file this charge, however, to establish the rights of the players to reinstatement upon an ultimate finding of an unfair labor practice. The case may take years to adjudicate. I still think we will see a repeat of the decertification-and-sue strategy followed by the NFLPA (the legal equivalent of a "pick-and-roll") if the 8th Circuit affirms in the NFL case. If the 8th Circuit reverses, which now seem likely, all bets are off.

Meanwhile, it is best just to watch LeBron, Wade, Bosh and Company face off against Mark Cuban, Dirk and the Mavs in what could be a great final series. If everything continues on schedule, we should not hear from the 8th Circuit on the NFL case until after the seventh game of the NBA series. Then the legal playoffs will really begin.

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