NBA Lockout: What The Players Union's 'Disclaimer Of Interest' Means For The Future

Monday afternoon, the NBA players association announced they have filed a "disclaimer of interest" that will allow them to dissolve the players union and file class-action anti-trust litigation against the NBA. And after a few predictable months of lockout negotiations, Monday's news is the wild card that we've feared all along. So what does it mean? 

Well, for one thing, the 12-hour meetings between Bill Hunter's NBA Players Association and David Stern's NBA owners are now a thing of the past. You will see less of Billy Hunter in the coming weeks, and more of the players' star litigators--Jeffery Kessler, and David Boies.

The reason so many observers have called this "the nuclear option" for NBA players is that it grinds any CBA progress to a screeching halt. There is no more gap to bridge; after inching closer and closer over the past few months, "disclaiming interest" and decertifying the players' union means that the players have retreated from the bargaining table completely. Now they'll regroup and attack the NBA with litigation that will take months for courts to process. 

In other words, today's news means that hope for a season in 2011-2012 is suddenly far-fetched. Instead, the negotiations will move from hotel conference rooms to court rooms.

Is there a difference between decertification and disclaiming interest? Yes. As Sports Illustrated's Michael McCann explained last week: Decertification is not an immediate event, nor is it instantly reversible. Instead, it normally requires recognition by the National Labor Relations Board, a federal agency that regulates union-management activities. In the alternative, players could seek a disclaimer of interest, which is a similar but swifter and more retractable step and refers to the players' association disclaiming interest in representing players." In other words, the latter option allows players to sue instantly, but is less permanent, and more likely to be looked upon as a bargaining tactic. 

Do the players have a case? Possibly. In court, the players could challenge the league's suspicious financial statements, the NBA's fixed salary system, and generally, a compelling anti-trust suit would force NBA owners to risk losing billions in damages--if found liable, they would have to pay any player salaries owed during the lockout--if they allow it to go to trial. The hope for the players is that owners would be compelled to compromise on a fair deal as opposed to risking billions.

What will the owners argue? The owners will contend that there are numerous professional basketball leagues to choose from abroad, undercutting the players' claims of the NBA's monopoly. Likewise, the league has already filed preemptive complaints with the National Labor Relations Board, complaining that disclaiming interest is merely a bargaining tactic meant to stall negotiations. And as recently as this weekend, David Stern threatened to nullify all existing player contracts if the players try to sue the league.

How long would it take to decide? On its own, an anti-trust suit could take more than a year to decide. Coupled with the complaints filed with the National Labor Relations Board, it could take even longer. If the suit gets to court, there's a chance it could threaten next season, too.

The only silver-lining is that as the process plays out, neither side is forbidden from negotiating the framework of a collective bargaining agreement, and depending on how the process plays out, it could compel one or both sides back to the bargaining table to settle their differences. But as far as that process... How it plays out depends on judge assignments, court rulings, and any number of other factors that are impossible to predict on Monday afternoon.

After months of predictable back-and-forth, the owners have stubbornly refused to compromise, and the players have opted to take their chances with chaos rather than caving to the NBA's demands.

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