Myriad Legal Paths Out Of NBA Lockout Under Consideration By Union

The path out of the NBA lockout remains perfectly unclear, but as Ken Berger writes in a thorough column on CBSSports.com, the legal routes the players’ union can take from here are varied and plentiful.

Berger discusses some options with current and former labor attorneys, among those decertification -- which was used by the NFL Players Association -- and a National Labor Relations Board complaint. The National Basketball Players Association filed a complaint against the NBA with the NLRB in May, and amended it in July. The NBA is now expected to fight the unfair labor practice charges by presenting evidence of its own. That means resolution on whether the NLRB will take up the NBPA’s complaint could take 30-60 days. The NBA preseason is supposed to begin in a bit more than 60 days.

But that path could result in getting the two sides back to the negotiating table in earnest, Berger reports, citing the successful use of a NLRB decision in pushing Major League Baseball and its union toward resolution in 1995.

The [Norris-Laguardia Act] does not apply in labor disputes brought before the NLRB, meaning the NBPA’s current strategy could be its quickest route to an injunction lifting the lockout. If the NBPA is successful in getting the NLRB to issue a complaint against the NBA, the board could follow up by asking a federal judge to reinstate terms of the previous agreement -- thus forcing the two sides to engage in serious bargaining. This is how the baseball strike ended in 1995.

To this extent, the NLRB also provides the players with as close to a home-court advantage as they could hope for, given that the 8th Circuit precedent stands in the way of having the lockout lifted through an antitrust action. The NLRB also is decidedly labor-friendly, especially in its current makeup of four Democrat appointees and one Republican.

A cadre of NBA agents, however, continue to push for decertification, believing that filing an anti-trust suit against the NBA will result in quicker action. Stay tuned.