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Two years at the bargaining table led nowhere, so NBA players are ready to take their chances in a courtroom.
The players' association rejected the league's latest proposal for a new labor deal Monday and began disbanding, paving the way for a lawsuit that throws the season into jeopardy.
With All-Stars, role players, NBA champions and a new legal team crowding around them, union leaders announced the significant change in strategy, saying the collective bargaining process had "completely broken down."
"This is where it stops for us as a union," president Derek Fisher said.
And where the NBA's "nuclear winter" starts.
"We're prepared to file this antitrust action against the NBA," union executive director Billy Hunter said. "That's the best situation where players can get their due process."
And that's a tragedy as far as Commissioner David Stern is concerned.
"It looks like the 2011-12 season is really in jeopardy," Stern said in an interview aired on ESPN. "It's just a big charade. To do it now, the union is ratcheting up I guess to see if they can scare the NBA owners or something. That's not happening."
Hunter said players were not prepared to agree to Stern's ultimatum to accept the current proposal or face a worse one, saying they thought it was "extremely unfair." A day before players normally would have received their first paychecks, the NBPA's website greeted visitors Monday with the following message:
"Error 404: Basketball Not Found
Please be patient as we work on resolving this. We are sorry for the inconvenience.":
And they're aware what this battle might cost them.
"We understand the consequences of potentially missing the season; we understand the consequences that players could potentially face if things don't go our way, but it's a risk worth taking," union vice president Maurice Evans said. "It's the right move to do."
But it's risky.
Hunter said all players will be represented in a class-action suit against the NBA by attorneys Jeffrey Kessler and David Boies - who were on opposite sides of the NFL labor dispute, Kessler working for the players, Boies for the league.
"Mr. Kessler got his way, and we're about to go into the nuclear winter of the NBA," Stern told ESPN. "If I were a player ... I would be wondering what it is that Billy Hunter just did."
The league already has filed a pre-emptive lawsuit seeking to prove the lockout is legal and contends that without a union that collectively bargained them, the players' guaranteed contracts could legally be voided.
During oral arguments on Nov. 2, the NBA asked U.S. District Judge Paul Gardephe to decide the legality of its lockout, but he was reluctant to wade into the league's labor mess. Gardephe has yet to issue a ruling.
Two years of bargaining couldn't produce a deal, with owners' desires for more competitive balance clashing with players' wishes to keep the salary cap system largely intact. The sides last met Thursday, when the league offered a revised proposal but told the players there would be no further negotiating on it.
Stern, who is a lawyer, had urged players to take the deal on the table, saying it's the best the NBA could offer and advised that decertification is not a winning strategy.
Players ignored that warning, choosing instead to dissolve the union, giving them a chance to win several billion dollars in triple damages in an antitrust lawsuit.
"This is the best decision for the players," Fisher said. "I want to reiterate that point, that a lot of individual players have a lot of things personally at stake in terms of their careers and where they stand. And right now they feel it's important - we all feel it's important to all our players, not just the ones in this room, but our entire group - that we not only try to get a deal done for today but for the body of NBA players that will come into this league over the next decade and beyond."
Fisher, flanked at a press conference by dozens of player representatives and superstars including Kobe Bryant and Carmelo Anthony, said the decision was unanimous. But there were surely players throughout the league who would have preferred union leadership put the proposal to a vote of the full membership, with many ready to go back to work.
The sides still can negotiate during the legal process, so players didn't want to write off the season just yet.
"I don't want to make any assumptions," union VP Keyon Dooling said. "I believe we'll continue to try to get a deal done or let this process play out. I don't know what to expect from this process."
Hunter said the NBPA's "notice of disclaimer" was filed with Stern's office about an hour before the news conference announcing the move. Now, the NBPA is in the process of converting to a trade association as the fight shifts to the courts.
"The fact that the two biggest legal adversaries in the NFL players dispute over the NFL lockout both agree that the NBA lockout is now illegal and subject to triple damages speaks for itself," Kessler said in an email to The Associated Press. "I am delighted to work together with David Boies on behalf of the NBA players."
Players made numerous economic concessions and were willing to meet the owners' demands of a 50-50 split of basketball-related income - a transfer of about $280 million annually from their feeling the league's desires to improve competitive balance would hurt their guaranteed 57 percent under the old deal - but only if the owners met them on their system wishes.
"This deal could have been done. It should have been done," Hunter said. "We've given and given and given, and they got to the place where they just reached for too much and the players decided to push back."
During the weekend, Stern said he would not cancel the season this week.
Regardless, damage already has been done, in many ways.
Financially, both sides have lost hundreds of millions because of the games missed and the countless more that will be wiped out before play resumes. Team employees are losing money, and in some cases, jobs. And both the owners and players eventually must regain the loyalty of an angered fan base that wonders how the league reached this low point after such a strong 2010-11 season.
"It's horrible," said Ty Agee, president of the Beale Street Merchants Association in Memphis, Tenn. "This is bad. Personally, I don't believe they will be able to fix it. This is really, really bad."
And it was seemingly destined. Hunter said he believed years ago owners were going to lock out the players until they could force through the changes they sought. Given that, he has been criticized for not disbanding the union sooner in hopes of creating some leverage that the union never had.
The proposal rejected by the players called for a 72-game season beginning Dec. 15.
On Sunday, the league made a very public push on the positives of the deal - hosting a 90-minute twitter chat to answer questions from players and fans, posting a YouTube video to explain the key points and sending a memo from Stern to players urging them to "study our proposal carefully, and to accept it as a fair compromise of the issues between us."
In the memo, posted on the league's website, Stern highlighted points of the deal and asked players to focus on the compromises the league made during negotiations, such as dropping its demands for a hard salary cap, non-guaranteed contracts and salary rollbacks.
Union officials repeatedly have said the system issues are perhaps more important to them than the split of basketball-related income, but owners say they need fundamental changes in both to allow for a chance to profit and to ensure more competitive balance throughout the league.
The previous CBA expired at the end of the day June 30. Despite a series of meetings in June, there was never much hope of a deal before that deadline, with owners wanting significant changes after saying they lost $300 million last season and hundreds of millions more in each year of the old agreement, which was ratified in 2005.
Owners wanted to keep more of the league's nearly $4 billion in basketball revenues. And they sought a system where even the smallest-market clubs could compete, believing the current system would always favor the teams who could spend the most.
The NBA's last work stoppage reduced the 1998-99 season to 50 games. Monday marked the 137th day of the lockout; the NFL lockout lasted 136 days.
In its labor battle, NFL players tried to get the courts to overturn the lockout and let players return to work. Although a Minnesota judge initially ruled in favor of the players, that ruling was put on hold by the 8th U.S. Circuit Court of Appeals.
"Given the rulings that came down in the NFL case, which are not binding in the 2nd circuit but would be influential, right now the owners are not in a bad spot," said antitrust attorney David Scupp of Constantine Cannon in New York City. "It could very well be that the players have an uphill battle toward getting that lockout enjoined. If they can do that, then it might swing things in their favor."
But time is not on anyone's side.
"If you look at what happened with the NFL case, that whole legal battle surrounding the temporary injunction was resolved relatively quickly, and it still took a few months," Scupp said. "There's not a few months to spare this time around."
This article was originally published on November 14, 2011.
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