It's going nuclear.
After carefully considering the league's take-it-or-leave-it proposal, the players' union decided to leave it. In addition to declining the league's offer, the union has served notice to the league that it is disclaiming interest -- removing itself as the bargaining unit for the players and converting itself to a trade association.
"This is where it stops for us as a union," said Derek Fisher, now the former union president.
Fisher said the negotiating process had run its course. "After two years of making an effort, we concluded that the process has not worked," he said. "We cannot get a fair deal."
The players will now turn to the courts for help. A group of players will file an antitrust suit "within two days or so," according to union executive director Billy Hunter. Players' association outside counsel Jeffrey Kessler (a veteran of these negotiations) will handle the players' antitrust claim, along with newly appointed David Boies.
Boies is one of the most renowned antitrust litigators in the country. He was involved in this year's NFL players' association suit (on the owners' side), the Microsoft antitrust suit and the Napster suit, and argued before the Supreme Court on behalf of Al Gore in the 2000 presidential election fight.
In utilizing a disclaimer of interest rather than an involuntary decertification, the players have chosen a timelier but riskier approach. The disclaimer will likely be challenged by the league as a "sham," as the NFL did when faced with the disclaimer issued by the players' association; the league argued that the dissolution was merely a negotiating tactic, and that the union was still representing the players' interests.
The NBA players' union also passed up the opportunity to use the 45-60 days before a decertification vote to continue negotiating with the additional leverage the pending vote would provide. Instead, the players decided that there was no reason to wait for a vote, because additional bargaining would be futile.
"It was only when they concluded that the collective bargaining process was over with, and that there wasn't any purpose in continuing, that they took this action," Kessler said to reporters in New York on Monday.
After the players file their lawsuit, the two sides can continue to talk, and it is even possible they will settle without ever going to court.
"If there was an interest in settling that lawsuit," Boies said, "then as Jeffrey [Kessler] says, what would happen is the lawyers for the players would meet the lawyers for the owners and we would try to come up with some kind of settlement."
By dissolving their union, the players theoretically shift the venue of the dispute from labor law to antitrust law. A lockout, which is legal under labor law, could be deemed an illegal group boycott under antitrust law. Hunter indicated that the players would seek a summary judgment (a determination made by the court without a full trial), asking the court to bring the lockout to a quick end.
The players are also being careful to avoid following in the footsteps of the NFL players, whose union also disclaimed interest. The NFL players (with Tom Brady as one of the named plaintiffs) sought an injunction -- a remedy in the form of a court order -- ending the lockout. However, a lower court ruled that a law known as the Norris-LaGuardia Act prohibits injunctions in labor disputes. Instead, according to Hunter, the players chose to seek a summary judgment.
A possible timeline of events is as follows:
• The players' lawsuit will be filed this week.
• The owners will formally respond and address the players' complaints in early December.
• If the players sue outside of New York, then the first battle will be over the venue of the lawsuit.
• Once the venue is determined, the stage is set for the initial skirmishes over discovery and the like. If the players follow through on their summary judgment strategy, it would happen at this time.
This could happen as early as January or February if the case is filed in New York, or somewhat later if the venue battle causes a delay.
But the real point of dissolving the union is to generate leverage. The players don't really want to go all the way to trial -- they want to settle. If the players win a major victory early in the case and the owners are forced to accept the prospect of a catastrophic result in court, then the players have gained real leverage.
"Even if you could get an injunction," Boies said, "... it would be, obviously, a drawn-out process. And I think what the players are focusing on right now is, what is the fastest way to get this resolved?"
Boies also indicted that the players could continue to negotiate without a union. "The class-action settlement discussion," Boies added, "just like [what] took place in the NFL, [would happen] without any association's direct involvement. It's the class that would be making any settlement if there was one."
NBA commissioner David Stern called the decertification an "irresponsible action," saying "Billy Hunter has put the season in jeopardy." But in a prepared statement, he acknowledged that, one way or another, this dispute will be resolved. "There will ultimately be a new collective bargaining agreement," he said, "but the 2011-12 season is now in jeopardy."
Hunter admitted that there is now a "high probability" that there will be no season, but still left the door open just a crack. "Today is Nov. 14," he said. "That is ample time for us to save the season.
"It's never too late for David to call me."
Houston attorney David Holmes contributed to this report.