(Reuters) - National Basketball Association (NBA) owners have launched a “pre-emptive strike” by commencing legal action they hope will end the labor dispute, an anti-trust lawyer said.
With negotiations for a new collective bargaining agreement stalled, the NBA this week launched an anti-trust lawsuit against itself, asking the U.S. Second District Court to decide if the lockout was legal under anti-trust laws.
The players’ lawyers responded by asking the court to throw out the case because the union has yet to decertify and bring any action against owners.
Michael Keeley, an anti-trust and litigation lawyer for Axinn, Veltrop and Harkrider, told Reuters the owner’s actions were designed so they could pick the time, the place and the court for the key legal battles ahead.
“It is a pre-emptive strike,” Keeley said.
“They are saying, “I know you are going to hit me with this anti-trust lawsuit and I want to pick the court and the time.
“It’s like I sued you over the possibility you might crash your car into my house. You haven’t crashed your car into my house so there is no case to hear yet.
“But there is law that, even when there is a dispute that has not happened yet, gives a court jurisdiction to hear a case.”
By seizing the initiative, the NBA may have gained home field advantage by filing their lawsuit in the Second District Court, which Keeley says, has traditionally been favorable to the ownership side on issues.
“The threat of decertification and a lawsuit by the players gives them some degree of leverage,” said Keeley. “The owners are trying to defuse that by bringing their own lawsuit.
“They are sort of lancing a boil.”
The NBA contends the players association has been using the threat of decertification and anti-trust lawsuits as leverage in negotiations and the owners are keen to remove that threat.
Keeley believes the NBA players association is approaching the anti-trust option with caution having watched the National Football League (NFL) survive a similar challenge during collective bargaining negotiations earlier this year.
Shortly after the NFL lockout began the union decertified and players launched individual lawsuits against the league.
The case was initially supported by the district court but then unsuccessful before the Eighth Circuit Court of Appeals.
Once the Eighth Circuit sided with the league, the parties returned to the table and struck a deal.
“One might assume it was because they (NBAPA) saw what happened with the NFL players that they thought it was more valuable to have the threat of decertifying and bringing a lawsuit rather than actually suing,” explained Keeley. “The (Second District Court) judge is deciding should this case be confronted right now or is it premature.
“He could say, I’m tossing this out, come back to me when the players decertify.
“But if he rules I’m willing to hear the case then you have basically an anti-trust lawsuit like you had in Minnesota with the NFL.”
While the legal wrangling may seem tedious to fans, a decision by the courts may be the quickest way to getting players back on the courts.
“This is all designed to give one side more or less leverage over the commercial negotiations,” said Keeley. “If you are a basketball fan the hope is that this gets resolved by the courts because you look at the NFL case.
“As soon as the court ruled one way or another, the parties got together and they struck a deal.
“The NFL players had built their whole strategy around getting this (anti-trust) lawsuit and when they lost it was time to come to the table.”
Writing by Steve Keating in Toronto, editing by Julian Linden
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