I've fallen and I can't get up...

Kidding... But really, it has been a long while since I last posted.  A lot has happened since I left last---as I predicted, the NBA followed MLB's lead in signing new collective bargaining agreements and we were treated to a Christmas miracle with a NBA tip off (even if David Stern was the Grinch that stole CP3 from the Lakers).  I do apologize for my lack of action regarding these events, but unfortunately the holidays, my victorious march in the Constitutional Daily Fantasy Football League, and that crazy thing called "life" took up too much of my precious spare time.   I have said Kaddish and sat shivah for the loss of my beloved Green Bay Packers and I am ready to keep you up to date on all sports labor and employment law developments.  Happy New Year!  

On deck: "Realignment and It Feels so good..."

edit: it is with great irony, and also unintentional, that I decided to resurrect this blawg on the eve of SOPA blackout day...

A Christmas Miracle: How Mediation's Confidentiality Can Save Christmas Day Basketball

Sick of hearing about the NBA lockout? Well, you likely will not hear much more from both sides as the NBPA and Owners have moved their tense and acrimonious labor negotiations to mediation, where they hope common ground can be found under the guidance of a third party neutral in confidential negotiation sessions.  During this critical time, the owners and NBPA have turned to the Federal Mediation as a way to rebuild trust and thrust the negotiation's momentum forward.

It seems like the Mediation is off to a good start. Yesterday,  both sides met individually with Federal Mediation and Conciliation Director, George Cohen, and then today they joined together for a marathon ten hour negotiation session. If Cohen's name sounds familiar, it is because he was the man who oversaw the NFL Mediation sessions.

In the NFL, It Gets Better; I Promise.

Pete Olsen, Ohio State University Moritz College of Law 3L Student, and author of the blog "Wide Rights" has uncovered quite a find in the new NFL collective bargaining agreement.  The NFL is the first professional sports league to protect players from any sexual orientation related discrimination (assist PrawfsBlawg). 
As Prawfsblawg (emphasis added by author) points out, the language from the 2006 CBA Article VII, Player Security, reads :

Section 1. No Discrimination: There will be no discrimination in any form against any player by the Management Council, any Club or by the NFLPA because of race, religion, national origin or activity or lack of activity on behalf of the NFLPA.

The new language in the 2011 CBA, now moved to Article 49, reads:

Professional Athletes' Workers' Compensation? NOT IN MY HOUSE (California)!

One of the little discussed, but increasingly important NFL Collective Bargaining Agreement (CBA) issue in professional sports law is matters relating to professional athletes' workers' compensation claims. A disagreement has arose because numerous professional athletes have decided to choose California as the jurisdiction in which to file their workers' compensation claims, even if he had never played a game for a California home-team due to the belief that when it comes to Workers' Compensation Claims, California has plaintiff favored policies when it comes to work injuries that result from playing professional sports. This strategy was employed  much to the chagrin of the players' out-of-state employer who think that their players (employees) should be required to file their workers' compensation claims in the employers' home-state and have begun including contract provisions that preclude the players from bringing such injury related claims under California law.

However, even though this is an emerging and important issue within professional sports, the NFLPA and Owners punted on this issue, and decided to ratify the CBA and commence the football season  with this issue unresolved.  Nonetheless, both sides agreed to continue to negotiate in good faith regarding these emerging workers' compensation issues.  CBA Article 41 § (5)-(6) states that a joint committee will be formed to negotiate a possible California Workers' Compensation Alternative Dispute Resolution program on a trial basis.  This was agreed to with the big caveat that both sides retain their respective positions with respect to all current pending litigation. An example of such pending litigation was the case of the Chicago Bears versus three of their former players in The Chicago Bears Football Club Inc., et al. v. Michael Haynes, et al. No. 11 C 2668.  In her decision, U.S.  District Judge Elaine Bucklo affirmed an arbitrator's decision that the former Bears players were required to file their workers' compensation claims with the Illinois Workers' Compensation Commission instead of in California because their player contracts' required them to.

But why would a Chicago Bear  file his workers' compensation claim in California anyways?  For that answer, allow me to turn over the floor to Attorney Greg Grinberg; a Northern California Workers' Compensation Attorney who writes the blog wcdefenseca, a blog dedicated to California Workers' Compensation issues. 

Billy Hunter: "The Hunted" LP

The anguish was palpable after the latest NBA labor talks broke down after two long days of talks with little to no progress on a new collective bargaining agreement and a threat that training camps will not open on time.

The players' camp seems to be in disarray. There have been reports that some agents, taking the role as puppet-masters, are attempting to pull their players' strings in forcing the NBPA to decertify their union. Bill Duffy, Arn Tellem, Mark Bartlestein, Jeff Schwartz and Dan Fegan are the starting 5 on Team Agent, who also represent roughly one-third of the Union's players. They believe that the owners have most of the leverage and are ready to take it to the hole and blow up the union as a way to regain some of the power in the CBA negotiations, but union head Billy Hunter has rebuffed their proposal. In order for the Union to vote on the decertification issue, all Team Agent would have to do is convince all the players they represent, which totals roughly 30% of the Union members, to sign a petition to bring the issue to a vote.

NBPA President Derek Fisher rebuked Team Agents' request, and even called their motives into question. One only has to go back to the last NBA Lockout where the NBPA Executive Committee was accused of being run by super agent David Falk trying to protect his elite clients, as 10 out of 19 players on the Executive Committee were Falk clients including Union President Patrick Ewing, and fellow superstars Alonzo Mourning, Juwan Howard, and Dikembe Mutombo. This time around around, and probably much to Team Agent's chagrin, the NBPA executive committee is comprised of mostly role players and veterans (aside from star guard Chris Paul), which is evident by the leadership of veteran role player President Derek Fisher. Fisher and Hunter met with a group of about 40 players to discuss the progress or lack of progress in their negotiations with the owners and special guest presenter NFLPA Head DeMaurice Smith spoke about the decertification process as it was used for the NFLPA's specific needs. Many believe that Fisher is not ready to seriously consider decertification at this juncture as he believes that their NLRB complaint could be sufficient to shift the momentum. The Union appeared to leave the meeting an united front.

Subsequently, Fisher than sent an e-mail out to other members of the Union stating that the dysfunction was not among the players, but an internal divide within the Owners circle. After hearing these statements, Commissioner David Stern denied Fisher's allegations saying that the "vast majority" of the owners favor a hard salary cap and that the owner's negotiating committee has the authority to negotiate on all matters.

At their meeting, the owner's ratified a five year deal with NBA referees. The only question is how many games or if there will be a season to officiate at; Union Head Billy Hunter cautioned that the players should be ready to lose at least half a season at this time. Whether that is a threat or happens will be decided in the upcoming days. Derek Fisher has proven that he not only can lead teams to championship but can also unite all the NBA player's diverse interests. However, Billy Hunter needs to share some of the burden or it may not be too long that he ends up much like Hunter, Jan Levinson-Gould's assistant from NBC's "The Office," and let go to focus on his coffeehouse music tour.

No-no-no: David Stern Channels his Inner "Mutombo" to Preemptively Block NBPA

On Tuesday, Commissioner Stern ran up the "court" where he grabbed the first "Board"; National Labor Relations Board to be exact, to "block" the National Basketball Players Association (NBPA) from de-certifying as a Union. But enough for the flagrant foul worthy puns and onto what's going on in NBA Lockout Land. Stern decided to brush off his litigious rust that he fostered early on as the youngest Partner at Proskauer Rose, a white shoe law firm that has a significant sports law practice group, and preemptively strike and prevent the NBPA from decertifying. It seems as Stern learned from NFL Commissioner's Roger Goodell's cautious attitude toward the NFLPA decertification and wanted to stop it before it started. Goodell probably had a good understanding that it would take decertification in order to get the players back to the table. Goodell was rightfully optimistic that a deal would get done before risking any missed regular seasons games. You see, unlike the NBA, all of the NFL Franchises have been profitable. The lockout was just a way to reorganize how profitable the NFL could be and put the owners in a place where they could maximize profits for the longterm (i.e. 10 year deal.) In comparison, the NBA is not in great shape. Many teams have been taking losses the last few year to a point where almost half of the teams requested a credit extension from the League. That is not a good situation to be in when facing possible anti-trust litigation. Where as the NFL tweaked their salary cap structure, it seems that NBA Owners want to completely blow up their soft cap and start over again. This would be no easy fix in anti-trust violation settlement discussions. David Stern knew this and decided to nip it in the bud.

Twas the Night Before The NBA Lockout...

And although NBA Commissioner Stern and the Player Rep. Billy Hunter did meet;
All they could agree upon was: any basketball that fans will hear about will only be via Shaq's Rec. League Tweets.

NBA Commissioner David Stern and NBA Player Association head met today in New York for three-hours as a last ditch effort of avoiding an inevitable work stoppage. The NBA will lockout the players effectively at 12:01 EST tonight when the current agreement expires. All league business including free agent signings, trades, and summer league will be halted during the lockout.

Although, in essence, the effect of the lockout will be similar to that of the NFL, it is quite likely that this one may me lengthier than the NFL's (reportedly, the NFL and its players may be close to an agreement, but more on that in a subsequent post). Tulane University Sports Law Professor Gabe Feldman wrote an excellent overview on the NBA lockout. The major themes that will be discussed over and over again is the fact that the NBA wants to move from a soft cap to a hard cap, reduce length of contracts and other related issues. How this differs though from the NFL is that the NBA will claim that by not playing under the terms of the current CBA, NBA teams and the League as a whole would lose money, since many of the individual franchises did not do well last year. This is in direct conflict with the NFL, where even though NFL Commissioner Roger Goodell would never admit it, close to every NFL franchise owner made money last season, and the NFL itself, was quite profitable. Right now, the basis of the NFL disagreement is how to share the profit. This is not so in the NBA.

So what happens next? It is quite possible that the NBA Players Association (NBAPA) will take a play right out of Tom Brady's playbook and decertify their union and file an anti-trust suit. However, the NBAPA is probably waiting to see how it works out for Tom Brady and co. as their lawsuit is pending in the U.S. Court of Appeals for the 8th Circuit. However, if the NFL and NFLPA come to an agreement prior to the 8th Circuit decision, or even if the 8th Circuit rules against the NFLPA, the NBAPA could possibly decertify and bring suit in a employee/union friendly jurisdiction.

If you're a basketball fan, things could get ugly fast. However, if you are a sports law nerd like me, this ride should be an enthralling and prolonged soap opera. So who do you think will try another sport or pick up a new activity a la Chad Ochocinco? How about we send Omri Casspi, Jordan Farmar and Ron Artest to bring some "Metta World Peace" to the Middle East. I wouldn't mind watching Sir Charles Barkley taking hacks on the PGA tour. Maybe Lebron will try out his acting chops and star in Space Jam 2; it seems like the only way he can win a meaningful game is if it's written in a Hollywood script...Stay tuned.