As NBA players and their lawyers prepare to file antitrust litigation against the owners who have locked them out for 140 days, they face some difficult decisions.
Sources involved in the players' discussions say they are attempting to determine whether to continue with their charge of unfair labor practices filed at the National Labor Relations Board in May. Also, they must determine the jurisdiction in which to file their antitrust case.
Decisions on both issues are expected by Wednesday.
"We have been hoping for a decision from the NLRB for three months," a source told ESPN.com. "It is difficult to tell the players to be patient and to wait for a good decision when there has been no action from the board."
The NLRB's investigation of the players' complaint is complete. The next step is a decision from Lafe Solomon, the NLRB's general counsel. He can rule that the players are wrong, ending the process. Or he can rule that the players have a valid grievance about the owners' take-it-or-leave-it negotiation technique and ask a federal court to end the lockout.
A spokesperson for the NLRB refused to discuss the timing or the substance of Solomon's decision.
The players' labor lawyers, confident of a favorable decision from the NLRB that could end the lockout, are urging the players to continue with their case. But the players' antitrust lawyers are telling the players that they should withdraw it, asserting that the NLRB claim will hamper their efforts in the antitrust litigation.
Anticipating that the owners will insist in legal maneuvers that the union's disclaimer of its status is a "sham" and that the players will revive their union as soon as an agreement is reached, the NBPA's antitrust lawyers want to eliminate anything that looks like union activity, including the NLRB case.
Under American law, sources agree, the players could pursue the antitrust litigation while awaiting a decision from the NLRB. During the NFL lockout earlier this year, the NLRB was never a factor as both players and owners focused their effort on the players' lawsuits challenging the lockout and the NFL's contracts with TV networks that allowed the networks to pay for games not played. As those two cases progressed slowly through the courts, the two sides managed to reach a new collective bargaining agreement without a decision from the NLRB.
The players must also decide where to file their antitrust lawsuit. A source involved in the discussions says they are considering Califorinia, Minnesota and New York. The governing law may be more favorable for the players in California and in Minnesota; but to avoid delays resulting from attempts by the owners to move a lawsuit from California or Minnesota to New York, the players may decide to file their case in New York, where the owners' own lockout lawsuit is already pending. It would, some lawyers and agents argue, expedite a decision on the issue of whether the lockout can be stopped under antitrust laws.
Lester Munson is a senior writer for ESPN.com.