A new phrase entered the pro-basketball playbook on Monday when the players’ union announced that it would file a “disclaimer of interest,” instantly renouncing its role as a bargaining entity and thus making way for an antitrust lawsuit to move forward against the team owners in federal court. That could lead to months of litigation, putting the remainder of the 2011-2012 season in serious jeopardy.
This step marks the end of “good-faith bargaining” between the two sides, but anyone who has been even casually following the events of the now four-and-a-half-month lockout will have noticed that feelings between the two sides haven’t been amicable for some time. The players said they were being bullied by a take-it-or-leave-it final offer, which included, among many finer points, a fifty-fifty split of basketball-related income (down from fifty-seven per cent for the players in the previous, now expired deal); N.B.A. Commissioner David Stern called the offer a natural culmination of the bargaining process. The union balked, rejecting the offer without putting it to a member vote, before dissolving.
The economic narrative of the lockout has been clear and fixed from the start: Stern and the owners claim that the league is losing money—as much as three hundred million dollars a year—and that players would have to concede some of their share of earnings in order for the N.B.A. to remain solvent. (The figures have been debated, with players claiming that Stern is bluffing about losses.) The degree of that concession has been one of the bargaining points, as have more technical issues that relate to players’ ability to exercise rights as free agents. Beneath this story, however, there has been a potent and contentious subtext: Stern and the owners simply believe they understand the business of the league better than the players, who, they argue, are being taken for a ride by agents and lawyers.
Monday night, in an interview with ESPN, Stern continued to push that argument, evincing a tone of bewilderment and pity. “This is going to wind up being a very unwise decision that will not be classified historically as resolve,” he said. “They’ve been badly misled.”
Derek Fisher, head of what was until yesterday the National Basketball Players Association, responded:
The negotiations have, at several key points, waded into these weeds of bruised feelings (and egos) and the uneasy frictions of class, power, and race. Last month, Bryant Gumbel suggested that Stern was playing the role of a “plantation overseer.” (See Dave Zirin’s post for more on that.) Just last week, a lawyer for the players, Jeffrey Kessler, complained about the owners to the Washington Post, saying that “instead of treating the players like partners, they’re treating them like plantation workers.”
Earlier this week, Stern reached out directly to players, sending a memo (pdf) that touted the fairness of the final offer from owners, and calling upon the players to help “stop the ongoing damage to both sides and the countless others that rely on our game for their livelihoods and enjoyment.” Some saw this as a much needed overture; others, perhaps predisposed to suspicion regarding every move Stern makes, saw another act of condescension.
Monday marked the hundred and thirty-seventh day of the lockout, which brought it one day past the length of this year’s lockout of the N.F.L. While the thought of losing an N.F.L. season inspired urgency and a kind of gloomy soul-searching among the wider polity, the N.B.A.’s labor dispute has been met with frustration from diehard fans, but general and increasing indifference from the culture at large. That should give warning to both sides. The sports world offers plenty of distractions, all of them more interesting than the particulars of player salaries and team revenues.
The N.F.L. lockout, remember, also involved a trip to the courts, after the N.F.L. player’s union voted to decertify and sued the league, demanding that the lockout be declared illegal under antitrust laws. Two of the lawyers in that fight are back in the spotlight. Kessler also represented the football players in their injunction suit against the N.F.L. Kessler was joined on the N.B.A. players’ side on Monday by David Boies, who this summer represented the N.F.L. against Kessler and the players. (The AmLaw Daily has a post on whether this switch might mark a conflict of interest.)
The N.F.L. case, however, was brought months before the start of the season, and in the intervening time both sides were able to come to an agreement out of court. The N.B.A. has already missed the start of its season, and, with a switch of venue to the slow-moving legal system, the process is moving on an entirely different clock. Stern said on Monday that the league would need to have a deal in place thirty days before any games could start being played.
All hope for a truncated season is not lost, however. The lockout-shortened 1999 season, after all, didn’t begin until February 5th. That’s still a long way away, but prospects this week look suddenly dim. David Stern, always a master of rhetoric, turned apocalyptic on Monday, warning of basketball’s “nuclear winter.” For fans, so continues a season of discontent—no “sun of York,” or Kobe, LeBron, or Dirk in sight. As for the players, a visit to the updated union Web site says it all:
