The National Basketball Association’s players’ union has filed an unfair labor practice (ULP) charge with the National Labor Relations Board (NLRB) against the NBA, alleging that the league has failed to engage in good faith negotiations with the union. The union accuses the league of bargaining in bad faith as it seeks a hard salary cap for the players, amounting to a 22% reduction from the current $58 million soft salary cap. It alleges the league has failed to provide financial information supporting the claim that such a reduction is necessary for business viability. The union’s charge also alleges the league has tried to negotiate with the players directly, attempting to bypass the union.

The union has asserted that the league has engaged in “take it or leave it” negotiations to lay the groundwork for a lockout in the likely event players reject the league’s final offer. The parties’ collective bargaining agreement expires on June 30, after which the league could commence a lockout. During a lockout, the league would not be obligated to pay the players their salaries or other benefits. Players would not be allowed to communicate with their coaches or their team’s support staff. Thus, a lockout may be a powerful bargaining tool to compel players to accept the league’s more stringent demands.

The NBA players’ union seems to be taking a lesson from the ongoing lockout occurring between the National Football League and the league’s players’ union (NFLPA). The NFLPA has attempted to alter the playing field between itself and the NFL by decertifying as a union, which allowed it to bring an antitrust action against the NFL in federal court. The NFL lockout is currently entering its 13th week.

Unlike the NFL players’ union, which was forced by the terms of its contract with the League to decertify prior to the end of the collective bargaining agreement or wait until at least September to consider that legal option, the NBA players are not restricted by any such collective bargaining agreement language.

At this time, in order to avoid a protracted lockout, decertification, and lengthy antitrust action in court, the NBA players’ union has decided to initially pursue its legal options before the National Labor Relations Board.

The NBA players’ union is seeking an expedited review of its charge to prevent a lockout of its players. If the NLRB decides to conduct such an expedited review, the NLRB could seek an injunction in federal court to protect the players’ rights and to prevent the NBA from commencing a lockout until a thorough investigation has been conducted. If, at the end of such an investigation, the NLRB finds that the players’ union charge against the NBA is meritorious, it would issue a formal complaint against the league. Following the issuance of the complaint, the NLRB would attempt to negotiate a settlement of the complaint with the League or proceed to a formal hearing on the matter.

If at the outset of the NLRB investigation, the players’ union successfully obtains an injunction from a federal court preventing the NBA from commencing a lockout, it will be the league that finds itself in a defensive position in which it may be compelled to react to the union’s position before a lengthy antitrust litigation ever begins.

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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.