The Vapor of Nuance: One Legal Road Union Might Take During NBA Lockout

David Stern's story during the 2011 NBA Lockout has been one of unsupportable and out of control player salaries stunting the growth of the league that fuels them.   That story has major holes, and today we pull on a few threads others have teased free from the tale the owners are weaving and imagine what a centralized union response might look like.

Rook's and Tom Ziller's work washing away the new car smell on the owners' bargaining position has unsurprisingly left it smelling like waste matter.  Whether the union has arrived at the same conclusions or not at this point is irrelevant.  If they haven't, the viral beast that is the internet won't let it sit for long.  To be honest, hiding profits and declaring losses is a fairly standard practice in corporate America.

The more comprehensive picture indicates a situation where the owners split profits to create the datapoints at the crux of their argument, losing all those hundreds of millions.  Rook's point about a hard salary cap dictated by Basketball-Related Income being effectively in place already begged the question (since salaries never increased faster than profits) as to where are these losses the NBA alleges coming from.  He cited another article from Ziller, an analysis of Nate Silver's article focusing on nebulous 'other expenses'. 

So what is the union waiting for?

As Ziller wrote, those 'other expenses' could be literally anything.  Nothing's more embarrassing in a war for public standing than blowing the lid off something legitimate.  But the players' camp has been extremely quiet in the past few months, there's not been a whiff of anything like strategy.  This led to a coalition of superagents to consider a coup by forced decertification.  A leak to the media with no follow-up indicates a warning shot, not a bluff.  Time to take a shot at fortune-telling, guess-work and outright fabrication, in italics just to be extra clear.

[begin speculation]

Billy Hunter brought the agents in on the union strategy.  Since the beginning, union legal counsel has been pursuing several avenues:

  • Determine the substance of just what those 'other expenses' constitute.  Paint an accurate picture and project the NBA's actual current standing based on what the union defines as acceptable business expenses.  With player salaries having risen commensurately with league profits, it's the 'other expenses' that play the proverbial concrete shoes.
  • If the picture counsel paints is reliable enough to hang a hat on legally, I suspect we'll hear about once regular season games are being lost.  At this point, the stakes have risen, the owners are further committed to their stance in the public forum, and if there is a chink in their armor they're going to have to work twice as hard to spin it.
  • If the first two suppositions come to pass, all of a sudden the NBA lockout is about dirty record keeping...well, Ziller has the right of it again; it's the owners who are replaceable, not the players.  If there's one thing the public is getting used to hearing, it's the revelation of comprehensive analysis of a corporation's books revealing, well, if not malfeasance, then irresponsibility.  If the NBPA's analysis shows irresponsible spending, the war for the public's support may be well and truly decided.

[end speculation]

The players' union is either sitting on a goose egg or a trump card, and for my part, I don't think the man who outdueled David Stern in '99 went into this unprepared.  But if he did, I imagine the first we'll hear about it is when the agents force decertification.  The only problem I have with decertification (and the subsequent antitrust lawsuit) is that of timing.  Namely, the union let the NBA file first (they filed in New York), which I believe means all legal roads pertaining to antitrust lawsuits will also run through New York.  You may remember the NFLPA immediately decertifying and filing in Minnesota, where the players could count on a union-friendly federal official in Judge Doty. 

Allowing the NBA to file first is either a legal blunder ... or the union is sitting on a trump card.  Even if that mythical gambit falls flat on it's face, it's not like the players (and their agents) are without recourse.  Wasn't 2012 supposed to be the year the world ends?

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