New York Is the NBA lockout legal or not under antitrust laws?
That’s the question league attorneys want a federal judge to answer — before players potentially file an antitrust lawsuit as the NFL Players Association did during football’s recent lockout.
U.S. District Judge Paul Gardephe, however, expressed reluctance Wednesday to wade into the NBA’s labor mess.
In oral arguments in Manhattan, NBA attorney Jeffrey Mishkin said the NBA Player’s Association is using the possibility of an antitrust fight like “a loaded gun” on the negotiating table and urged Gardephe to reject the union’s request to toss the league’s lawsuit.
Mishkin said the NBA is seeking the court’s blessing for its actions so that the union stops threatening an antitrust fight to gain an upper hand in negotiations.
“They prefer the uncertainty,” Mishkin said of the union’s effort to get the lawsuit tossed out. “It’s like taking a loaded gun and laying it on the table.”
Gardephe brushed aside Mishkin’s argument, saying posturing is part of negotiations.
“If they’ve put the gun on the table, it’s not clear there are any bullets in it,” the judge said. “The courts discount threats of litigation in the context of collective bargaining.”
The NBA locked out its players July 1, and Commissioner David Stern already has canceled all November games.
Progress has stalled since talks broke off last Friday over the revenue split. The union’s executive committee plans to meet today in New York, a person with knowledge of the plans told the Associated Press. The person requested anonymity because the plans have not been made public.
Player’s Association president Derek Fisher and executive director Billy Hunter each sent a letter to members earlier this week denying reports about a rift among the leadership.
Union lawyer Jeffrey Kessler said in court Wednesday that the NBA case should be tossed out because the league was trying to get the court involved on the mere possibility there would be an antitrust fight.
“They have no case,” he said. “They’re seeking to do something unprecedented, inappropriate.”
Mishkin insisted the league had to act to stop threats that were hampering negotiations. He said the union was prepared to dissolve itself, a necessary legal step before individual players could bring antitrust actions against the league in federal court.
“They’ve already collected the cards. They can do it at any moment,” he said. “We don’t have to wait. We don’t have to be subject to their whim.
“We want to get the antitrust threat out of the bargaining.”
Gardephe did not immediately rule, but he questioned Mishkin at length and was skeptical of his arguments, saying at one point that the NBA lawsuit contained a “fair amount of speculation.”
The judge indicated that for all the talk of tangling, the two sides were speaking different languages. Gardephe said reading the written briefs before the hearing was like watching “two ships passing in the night.”