Breaking news: Hunter says there will be disclaimer of interest

[Fafnir]

The summary judgment strategy seems to be an attempt to introduce some leverage for the players so the owner's will improve their offer, with the fall back that they feel they have a good case if the owner's do not improve it.

[fairweatherfan]

Here's what I don't understand about the players' legal strategy:

Snipped for space

This all sounds consistent with a bargaining tactic vs an actual attempt to win in court.  I don't know why they're taking the tack they are other than to pressure the owners, but I'm not a lawyer so I can't speak to the legitimacy of the approach.  I do know Boies and Kessler are pretty well-regarded in this area so I have to believe they have some idea what they're doing.

BTW, I read somewhere that worsening the offer is the sort of behavior that the NLRB tends to look very harshly on, which is one reason the NBA hasn't done it.  Any truth to this?  Is the legal process likely to keep the NBA from pulling back on its offer?

[Roy H.]

The summary judgment strategy seems to be an attempt to introduce some leverage for the players so the owner's will improve their offer, with the fall back that they feel they have a good case if the owner's do not improve it.

Where's the leverage?  The owners and their attorneys aren't idiots.  There is a 0% chance that summary judgment is successful.  0%.

Sure, there's a plausible argument that the players could win if this was fully litigated over 2-3 years.  However, does *anybody* think there are is "no dispute of genuine material fact" here?  That's a ridiculous, ridiculous argument.

The summary judgment won't change anything.  If that's the players' hope, they're being misled by a law firm looking to line its own pockets.  Again, there could be leverage if the anti-trust case made its way to final disposition, but the only way that happens is if the players are comfortable not only cancelling this season, but probably the next one, as well.

[Roy H.]

BTW, I read somewhere that worsening the offer is the sort of behavior that the NLRB tends to look very harshly on, which is one reason the NBA hasn't done it.  Any truth to this?  Is the legal process likely to keep the NBA from pulling back on its offer?

I'm not a labor lawyer, but I read the same thing.  I think the owners' counter-argument would be that the 50/50 split was aimed at early resolution of the case, and that the additional missed games and loss of revenue has led them to believe that its not economically viable for them to settle at that number any more.  I think the NBA could couch that argument in good faith, if they have some numbers to back it up.  However, my guess is that the NBA won't be making any more public offers for awhile.

However, that's an issue that is separate and apart from the anti-trust issue, in my understanding.  The parties will be going in front of a District Court judge now, rather than the NLRB.

[Chris]

The summary judgment strategy seems to be an attempt to introduce some leverage for the players so the owner's will improve their offer, with the fall back that they feel they have a good case if the owner's do not improve it.

Where's the leverage?  The owners and their attorneys aren't idiots.  There is a 0% chance that summary judgment is successful.  0%.

Sure, there's a plausible argument that the players could win if this was fully litigated over 2-3 years.  However, does *anybody* think there are is "no dispute of genuine material fact" here?  That's a ridiculous, ridiculous argument.

The summary judgment won't change anything.  If that's the players' hope, they're being misled by a law firm looking to line its own pockets.  Again, there could be leverage if the anti-trust case made its way to final disposition, but the only way that happens is if the players are comfortable not only cancelling this season, but probably the next one, as well.

Agreed (well, I have no idea about this stuff, but this is what I have read from other lawyers).  But I don't think the players had any other choice for leverage. 

Right now, the players leverage is to convince the owners they are willing to see this through in the courts for 2-3 years, and essentially kill the league as we know it. 

I think the owners did not believe the players were willing to actually miss this season, and that they would eventually break.  This is Hunter trying to show that its not a bluff (but I personally believe it still is a bluff...just a much more costly one).

What they are hoping is that this will be enough to get the owners to come just an inch or two closer, so they can finalize a deal.  I am not sure that's going to happen.

[Lucky17]

If the players want to continue negotiating, isn't this their only option, after Stern's ultimatum of "take it or leave it?"

[fairweatherfan]

Decent article from ESPN about the legal issues - doesn't address the summary judgment thing though:


http://espn.go.com/espn/commentary/story/_/page/munson-111114/questions-answers-nba-players-announcing-disclaim-their-union

Interesting point I hadn't considered: the owners may be very averse to take this to court because discovery may reveal their true losses to be much less than $300 million.  Something like that would be pretty devastating from a PR standpoint and maybe a legal one as well.  I don't think that can happen til after summary judgment is cleared up, though.

[Roy H.]

If the players want to continue negotiating, isn't this their only option, after Stern's ultimatum of "take it or leave it?"

Not really.  As a lot of people suggested, the union could have (and perhaps should have) made a counter-proposal that is pre-approved by the rank-and-file.  Had they done that, with some modest improvements, it would have put some real pressure on the owners in terms of public opinion, as the owners would have been seen as the ones walking away from the deal.

[Roy H.]

Decent article from ESPN about the legal issues - doesn't address the summary judgment thing though:


http://espn.go.com/espn/commentary/story/_/page/munson-111114/questions-answers-nba-players-announcing-disclaim-their-union

Interesting point I hadn't considered: the owners may be very averse to take this to court because discovery may reveal their true losses to be much less than $300 million.  Something like that would be pretty devastating from a PR standpoint and maybe a legal one as well.  I don't think that can happen til after summary judgment is cleared up, though.

Discovery will definitely be important if this is fully litigated.  There's no realistic way to exchange discovery within less than 90 days, though, and probably much longer than that.

As for the article, Munson argues multiple times about an injunction.  However, Boies has already said the players aren't going to seek one.

[fairweatherfan]

As for the article, Munson argues multiple times about an injunction.  However, Boies has already said the players aren't going to seek one.

Yeah, it's from yesterday, and was a flash reaction piece to the initial news.

[Interceptor]

Not really.  As a lot of people suggested, the union could have (and perhaps should have) made a counter-proposal that is pre-approved by the rank-and-file.  Had they done that, with some modest improvements, it would have put some real pressure on the owners in terms of public opinion, as the owners would have been seen as the ones walking away from the deal.

The court of public opinion is like the "international community". It is a construct. There are no stakeholders in this phantom "court" that have any input on this process whatsoever. We have the NBA, we have the NBPA, we have agents I suppose, and we have real courts with actual judges. I don't know anyone else that gets a vote.

[Roy H.]

Not really.  As a lot of people suggested, the union could have (and perhaps should have) made a counter-proposal that is pre-approved by the rank-and-file.  Had they done that, with some modest improvements, it would have put some real pressure on the owners in terms of public opinion, as the owners would have been seen as the ones walking away from the deal.

The court of public opinion is like the "international community". It is a construct. There are no stakeholders in this phantom "court" that have any input on this process whatsoever. We have the NBA, we have the NBPA, we have agents I suppose, and we have real courts with actual judges. I don't know anyone else that gets a vote.

You don't think players, or even judges, are influenced by the prevailing conventional wisdom that's out there in the community?  They're all people, and when one side is clearly seen as in the "right" or the one to "blame" among large portions of the public, it's going to influence decision makers.

To suggest that the fans and the media don't have any influence here is, in my mind, starkly incorrect.  If PR was irrelevant, the sides wouldn't spend so much time on it.

[nickagneta]

If PR opinions didn't matter, Stern would never have been on ESPN within minutes of the NBPA press conference saying the things he did. That entire interview was PR damage control laying blame elsewhere and had no other function whatsoever.

[Interceptor]

You don't think players, or even judges, are influenced by the prevailing conventional wisdom that's out there in the community?  They're all people, and when one side is clearly seen as in the "right" or the one to "blame" among large portions of the public, it's going to influence decision makers.

No, I don't. The value of PR is blown completely out of proportion in situations like these, where there is no advantage to be had by convincing outsiders that you are on the side of the angels. This is a bitter pill to swallow for fans, who want to believe that their opinions are worth being swayed, but it's true. Neither the NBA or NBPA can leverage fans to their cause, boycotts will just simply just hurt everyone, it's the equivalent of pooping in the same place that you eat.

I guarantee you that each of the owners, players, and agents considers their cause to be righteous, and won't be moved by anything less than a tsunami of discontent that hurts them personally. Judges may be influenced, even if they shouldn't, but clearly the direct arguments and facts of the case will have a much more significant impact, and all actual stakeholders will have a chance to weigh in for that.

To suggest that the fans and the media don't have any influence here is, in my mind, starkly incorrect.  If PR was irrelevant, the sides wouldn't spend so much time on it.

I am going beyond suggesting it, I'm flat out saying that it doesn't matter a fart in a hurricane. There are times when PR matters: elections come to mind as the best example possible, when the public's opinion actually makes a difference. This ain't one.

I think that both sides are spending so much time on it, not because it's relevant, but because they simply believe that it's relevant.

[Roy H.]

I think that both sides are spending so much time on it, not because it's relevant, but because they simply believe that it's relevant.

So the players, owners, and fans all think its relevant, and presumably the lawyers and agents do, too.  But they're all wrong?  I'm not convinced.