Season in serious jeopardy, but not lost yet

Players have decided to disband the union and file an antitrust suit against the league. (EPA/Landov)

NEW YORK — If you have even a passing interest in the legal world, David Boies is a name you should already know. He’s possibly the most famous litigator alive. So when he walked in with the NBA players’ union on Monday, you knew the news was bad enough to jeopardize the season.

The union has abandoned its right to negotiate on behalf of the players in order to sue the NBA in antitrust court for massive damages within the next 48 hours, according to its revamped legal team. The players in attendance said the decision was unanimous — that the league had backed them into a corner with ultimatum after ultimatum, even after the players gave back the equivalent of nearly $3 billion over a 10-year deal by lowering their locked-in share of the league’s revenue. That move covered the league’s annual losses of $300 million, which union chief Billy Hunter again characterized as “exaggerated.”

“Collective bargaining has totally failed the players,” said Jeffrey Kessler, the union’s outside counsel and commissioner David Stern’s designated villain.

“We put all our proposals out there, and they were rejected,” union vice president Maurice Evans told SI.com. “There was nothing else to evaluate.”

PLAYERS TAKE TO TWITTER AFTER REJECTING LEAGUE’S OFFER

The move will shift the process from the bargaining room to the court system, endangering the season and infuriating Stern, who said on ESPN minutes after the union’s announcement that players had “been badly misled.” Stern dismissed the union’s move as a negotiating ploy that had been in the works since at least February 2010, when Kessler, in Stern’s telling, informed the commissioner that the union would go this route if talks broke down.

“We were very, very close,” Stern said, “and the players decided to blow it up.”

So Stern has his public relations victory — The players did it! — and a league on the verge of suffering the most disastrous labor relations outcome (apologies to the NHL) in major professional sports history. Let’s be clear about one thing: Nobody knows what happens now. The season is not lost, despite the doomsday rhetoric, some of which agents characterized as part of Stern’s plot to scare the players into taking the deal on the table. The union and the league could settle their lawsuit in days or a couple of weeks, and that settlement would include the guts of the next collective bargaining agreement, according to legal experts.

The court process itself is uncertain, despite the common refrain that the NFL players failed in going down this exact path earlier this year. Labor experts say the appellate ruling that reinstated the NFL’s lockout, after a lower court halted it, is a tricky opinion that did not provide the complete victory the NFL sought. Legal precedent for this kind of case is thin; the NBA believes it gave itself an advantage by filing a preemptive lawsuit over the summer declaring any future disclaimer of interest by the union would be a sham — a transparent shift in name only designed to gain the kind of short-term leverage that could swing a few deal points the union’s way. The decertification process, in which players topple the union without its consent, is more difficult to labor a flip-the-switch sham, but nothing is certain now.

“It is impossible to predict what is going to happen,” said Gabe Feldman, a sports law expert and professor at Tulane.

The NBA could cave immediately under threat of damages and give the union a better deal — a very unlikely outcome given Stern’s defiance. The union could win a short-term court victory — say a judge denying the league’s motion to dismiss the suit — and force the NBA’s hand. The league, in a legal fantasy world, could enact new free-market rules that might pass must in antitrust court — rules that would allow the Lakers or Mavericks to sign Nene, Tyson Chandler, Tayshaun Prince and any other free agents they’d like for as much money as they’d like.

The smart money remains on the two sides settling in some form before January, the point at which the season would be lost.

“Today is Nov. 14,” Hunter told a small group of reporters after the meeting. “That is ample time for us to save the season.”

But Feldman warns that the timetable just got longer. The two sides must exchange court papers, argue before a judge, reach a settlement, re-form the union and sign a new CBA. The season isn’t dead, but it is in far more danger than it was 24 hours ago.

That’s the big picture going forward. For now, fans are going to lament the possibility of losing the season after the two sides came so close to a deal. On the surface, the collapse of the talks came down to nitty-gritty cap and tax rules most fans don’t even care about — whether luxury tax teams could use the mid-level exception; whether teams that pay the luxury tax every year would suffer a harsh penalty that would make the tax act like a hard cap; whether all teams could use sign-and-trade and extend-and-trade transactions through which a few stars have switched teams over the last year.

The players, with some justification, viewed those proposals as a way for the league to stifle the movement of star players while giving middle-class veterans lower odds of securing that one, career-defining guaranteed deal. You could argue it’s silly to torpedo a season based on rules that might apply to 20 guys per year, at most, but union members have no way of knowing when it will be their turn to be one of those 20 guys.

But even more significant is the fact that players generally gave on every aspect of this deal, at least if you consider the just-expired CBA as a baseline. And so while it’s easy to say, “They’re close!” the reality is one side is much more comfortable than the other with what “close” means now. The way the league got there, with a series of ultimatums, also seems to have emboldened players — even though many of them have expressed a desire to accept the league’s offer and get on with it.

“It was the first mistake Stern made,” said Marc Fleisher, an agent who pushed for the decertification of the union in 1995. “The one thing you can say about professional basketball players is that they are competitive people, and they don’t react well to ultimatums.”

Fleisher and others I spoke to also criticized the union for giving too much early instead of coming out with aggression. Some of those critics wondered why the union did not move to decertify or disclaim interest earlier. “They continued to offer and offer without getting anything in return,” Fleisher told SI.com. “And all that did was embolden the owners to ask, ‘How much more can we get?’”

One thing for sure: This is a mess now.