Trying to head off the chance of an antitrust lawsuit from the NBA Players Association, the league went ahead and beat the union to court.
The NBA filed two claims against the NBAPA on Tuesday — an unfair labour practice charge with the National Labor Relations Board and a lawsuit in federal district court in New York.
The NBA accused the players of being uncooperative in negotiations toward a new collective bargaining agreement by making "more than two dozen" threats to dissolve their union and sue the league under antitrust laws to secure more favorable terms in a new CBA.
Commissioner David Stern told The Associated Press in a phone interview that an unproductive meeting Monday with union executive director Billy Hunter, president Derek Fisher and others confirmed to the league it needed to take this action.
"There doesn't seem to be a seriousness of purpose to the players and we keep reading about they're considering decertification, and the agents are meeting with Billy to talk about decertification, Derek was quoted as saying it's an option on the table," Stern said.
Stern added: "And we think that as long as they are preparing to use the same strategy that the NFL, who uses the same lawyer, used, it doesn't seem that we're going to be able to get to the deal that we need to get to together."
NFL players decertified their union this year, though they ultimately resolved a four-and-a-half month labour dispute with the owners.
"We just don't have as much time as the NFL did," Stern said. "If the union sort of continued to drag its feet and then pursued its preferred decertification strategy, and if the same four-and-a-half months went by, we'd be well into our season. The NFL had more time than we do."
Players' attorney Jeffrey Kessler, who also represented the NFL players, was named in the NBA's lawsuit for his use of what the league called an "impermissible pressure tactic" that has had a "direct, immediate and harmful" effect on CBA talks.
"For the parties to reach agreement on a new CBA, the union must commit to the collective bargaining process fully and in good faith," Adam Silver, the NBA deputy commissioner and chief operating officer, said in a statement released by the league.
Kessler said the players are frustrated because they believe it's the owners whose negotiating efforts have been in bad faith.
"The NBA Players Association has made no decision to decertify. They talk about the fact that this is something the players have considered for 30 years, and that's true. And they haven't done it for 30 years," Kessler said in a phone interview with The Associated Press. "So there's no decision made. There may be no decision made. We view this as an example of their bad-faith bargaining. They don't want to be at the table."
Yet Stern said decertification is Kessler's "preferred strategy and we really prefer to head that off."
"We know Kessler. We know Jeffrey. We've been at this for something approaching 30 years. We're pretty familiar with the playbook," Stern said. "You announce that you're going out of business, you swear under oath that it's permanent and non-reversible, and then you settle the lawsuit and then you make it unpermanent and non-reversible. And so let's I think let the festivities begin."
Hunter, in a statement released by the union, said the players will seek to dismiss the lawsuit, which he called "totally without merit."
Said Hunter: "We urge the NBA to engage with us at the bargaining table and to use more productively the short time we have left before the 2011-12 season is seriously jeopardized."
After a labour meeting in New York on Monday, the first session since the lockout began July 1 that included Stern as well as leaders from both the owners and the players, a downcast Stern said the sides were "at the same place" as they were a month ago in the hours before the old deal ran out.
Owners are seeking significant changes to the league's salary structure, claiming $300 million US in losses last season and hundreds of millions more in each year of the previous CBA, which was ratified in 2005. Players have acknowledged the losses but disputed the size, and they've balked at the league's push for a hard salary cap and reduction in salaries and maximum contract lengths.
The NBA's lawsuit is essentially preventative legal medicine.
It seeks a declaration from the court that the lockout does not violate antitrust laws, in case the union breaks up to file an antitrust lawsuit. It also cites legal backing for the lockout itself, invoking Depression-era legislation known as the Norris-LaGuardia Act designed to prevent court intervention in a labor dispute.
Finally, the league's lawsuit also makes an attempt to secure support for massive salary reform should the union dissolve. The NBA asked the court to declare that such a decertification would in turn void all existing player contracts because they're guided by the union's involvement in the old CBA. Without a union and a collective bargaining relationship, the league argued, the terms and conditions of those previously negotiated contracts would not apply.