In a direct effort to thwart the NBA players’ ability to decertify as a union and file an antitrust lawsuit against the League, the NBA took two legal steps against the union on August 2nd:  the filing of (1) an unfair labor practice (“ULP”) charge with the National Labor Relations Board and (2) a declaratory judgment action in United States District Court, Southern District of New York.  The actions claim that the players are threatening to decertify their union and then sue the League under antitrust laws in an attempt to force the owners to end their current lockout of the players.

The ULP charge alleges that the union (NBPA) violated the National Labor Relations Act by failing to negotiate in good faith. The League alleges:

The union has repeatedly threatened that, unless its demands for a successor agreement are met by the NBA, it will engage in the pretense of decertifying or disclaiming interest in further representing NBA players.

The League believes that the union’s threatened decertification would not be a good faith, unequivocal renunciation of its representation status.

The declaratory judgment action is a preventive legal step in federal court to parallel their efforts at the Labor Board. The action initially seeks a declaration from the federal district court that the League’s current lockout does not violate federal antitrust laws. In addition, the lawsuit seeks the court’s support for potentially drastic salary reform should the union opt to dissolve its representative status. The NBA has asked the federal court to declare that the union’s decertification would result in the voiding of all existing players’ contracts because, it argues, without a union and a collective bargaining relationship, the terms and conditions of those previously negotiated contracts could no longer apply.

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Photo of Gregg E. Clifton Gregg E. Clifton

Gregg E. Clifton is a Principal in the Phoenix, Arizona, office of Jackson Lewis P.C. He is Co-Leader of the Collegiate and Professional Sports Practice Group and serves as the editor of the firm’s sports law blog.

Mr. Clifton has extensive experience in…

Gregg E. Clifton is a Principal in the Phoenix, Arizona, office of Jackson Lewis P.C. He is Co-Leader of the Collegiate and Professional Sports Practice Group and serves as the editor of the firm’s sports law blog.

Mr. Clifton has extensive experience in the collegiate and professional sports world. He has advised numerous professional franchises on general labor and employment issues, including Title III ADA regulatory compliance and wage and hour issues. He serves as lead counsel for several Major League Baseball teams in their salary arbitration matters and has represented NCAA and NAIA collegiate clients regarding rules compliance, investigatory matters and in disciplinary hearings. In addition, he has handled Title IX investigations and compliance issues for NCAA and NAIA member institutions. Mr. Clifton has also worked extensively in the area of agent regulation and enforcement in professional and college sports and regularly provides counsel on issues relating to NCAA and NAIA amateurism issues and athlete eligibility questions. He has also served as an expert witness in matters involving sports agents’ work and responsibilities, as well as athlete compensation issues.

Prior to joining Jackson Lewis, he spent six years as Chief Operating Officer and Vice President of Team Sports for Gaylord Sports Management. He also served as President of the Athlete and Entertainment Division for famed sports attorney Bob Woolf’s firm, Woolf Associates, in Boston.

Mr. Clifton began his career as an Associate at Jackson Lewis where he focused his practice on traditional labor law. He continues to counsel clients in the areas of collective bargaining negotiations, representation cases, arbitrations and National Labor Relations Board matters.

Mr. Clifton frequently serves as an expert speaker to law schools, including Harvard University, Boston College, Hofstra University and Arizona State University, and bar associations regarding sports law issues, including agent regulation and salary arbitration. He is also often cited as an expert source in national news media for his commentary and opinion on legal issues in sports.