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Latest News - October 2011

October 14, 2011
NBA Lockout Day 106: David Stern denied request to dismiss unfair labor practice
Source: NY Daily
By: Mitch Lawrence

Locked-out NBA players believe they scored a major victory Wednesday when the National Labor Relations Board denied David Stern's request to have the union's charge of an unfair labor practice dismissed, although the players are a long way from seeing this tactic get them back onto the basketball court.

The NBA commissioner went before the NLRB on Wednesday seeking the dismissal, as first reported by the Daily News, but the NLRB decided to continue with the case, which the players union hopes will lead to the league being forced to restart operations and open the season under the previous collective bargaining rules.

"That is what Stern and his owners are worried about," insisted a union legal source.

Perhaps, but first, the players' case has several more steps to go, and it's being viewed by legal experts as a long shot to help them break the 106-day-old lockout.

"This is part of the theater of collective bargaining, and it's one of the few weapons that the players have to put pressure on the owners during the lockout," said Jay Krupin, a Washington, D.C.-based attorney with Epstein Becker Green and an expert on the workings of the NLRB. "The probability of an injunction being issued to stop the lockout is remote. But right now, having the NLRB look at its charge is one of the few things the players have going for them."

In hoping to gain some leverage in its uphill battle against the owners, the union has been trying to get the NLRB to expedite its case. An NLRB source said it will be given "high priority" when it soon goes to its board in Washington, D.C., but would not offer a timetable.

For the players to win and force the NBA to reopen, the NLRB would have to issue a complaint against the owners, ruling that the league did engage in unfair labor practices. Then it would have to convince a federal court that, among other things, the players have been caused irreparable damage during the lockout.

At that point, the only remedy for the NBA would be to file an appeal, which it would have to lose. If all that happens, then the NBA would reopen, with free agency being conducted under the old system, along with the players getting back the old 57-43 split of revenue they enjoyed in the last collective bargaining agreement.

Krupin predicted that the players' case will never get that far. The NLRB has a history of taking its time in hopes that the two sides return to the table and work out a deal. The owners and players have agreed to resume talks Tuesday with George Cohen, a federal mediator who sat in on some of the NFL talks last spring during pro football's lockout. The two sides will not sit at the bargaining table in Manhattan, but will stay in separate rooms while Cohen engages in shuttle diplomacy.

The two sides are deadlocked, with players asking for a 53-47 split of revenue and owners looking for the same division of $4.3 billion in their favor. The money split amounts to $240 million per year, or $2.4 billion over a 10-year deal.

While that split is significant, there is an even larger gulf between the two sides on the issue of what system will be used to divide the money. Owners are pressing for a harder salary cap with more restrictions, while players are seeking to keep many of the features of the old soft cap.



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