Boies outlines NBA players’ legal strategy

NEW YORK — That picture shows the man who has been hired to take down David Stern, or at least force a settlement from the NBA commissioner.

And David Boies says he’s going to try to do it by using Stern’s own words against him.

In a briefing to a small group of NBA writers Tuesday, Boise outlined the strategy he will try to employ in an anti-trust lawsuit filed by NBA players in U.S. District Court in Northern California today. The plaintiffs are listed as Carmelo Anthony, Chauncey Billups, Kevin Durant, Kawhi Leonard and Leon Powe.

Boies did not refer to the current labor impasse as a lockout, instead using the term “boycott” because of its legal definition relating to a case in which there is no union for the plaintiffs. That is the case here after the National Basketball Players Association filed a disclaimer of interest Monday, removing itself as the official bargaining agent for the players.

Boies said the collective bargaining process had ended, given the tenor and the substance of the statements made by commissioner David Stern. “Look at what the owners did — issued ultimatums, said take-it-or-leave-it, threatened punitive terms if the last offer is not accepted,” Boise said, adding that if a court reaches the conclusion that bargaining has indeed ended because of those statements, and if the court rules that the union made a good-faith filing of its disclaimer, then anti-trust rules will apply in this case and the owners will be at risk of triple damages.

“With David Stern saying don’t look for another offer because you’re not going to get one, that’s not collective bargaining, and there’s some distinct facts here,” Boies said. “I think it turned out to be a mistake. If you are in a poker game and you’re going to bluff, and the bluff works, you’re a hero. If somebody calls your bluff, you lose. I think the owners have overplayed their hand.

“I will give the devil their due. They did a terrific job of holding a hard line and making the players make concession after concession after concession,” Boies said. “Greed is not only a terrible thing but a dangerous thing, and they are overplaying their hand by pushing the players beyond any line of reasonableness.”

Boise suggested that the NBA could lift its lockout and allow the season to begin without having a collective bargaining agreement in place, but he said that would only come as part of a settlement of the lawsuit that the players filed today, and it would amount to a resetting of the collective bargaining process, effectively sending the sides back to square one while allowing basketball to be played.

“We have not heard from them,” Boies said of the NBA, “but they have my number.”

The NBA released a brief statement: “We haven’t seen Mr. Boies complaint yet, but it’s a shame that the players have chosen to litigate instead of negotiate. They warned us from the early days of these negotiations that they would sue us if we didn’t satisfy us at the bargaining table, and they appear to have followed through on their threats.”

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  1. Michael says

    NBA statement- “We haven’t seen Mr. Boies complaint yet, but it’s a shame that the players have chosen to litigate instead of negotiate.”

    Am I the only one who sees how flawed this statement is? David Stern was the one who ended negotiations effectively with his take it or leave it offer.

    But gotta admit, it would be nice to see the NBA get screwed by Stern’s own words. If there is an ultimate villian here, it’s Stern. The guy made $20 million+ last year while claiming his league lost $300 million, on top of the billion dollars or so they have lost before this past season. I don’t see how anyone can find that to be acceptable.

    • skelman says

      It may be nice to see the NBA get screwed by Stern’s own words, but hopefully quickly, and in a lockout-ending way.

      Also, to be fair, I’m pretty sure that $20 million+ number is simply not true. I believe in an interview with Bill Simmons he alluded to his salary being in the $5-9 million range (IIRC). I think the $20 million was a guess, and never confirmed.

      • Michael says

        My understanding is that the only people who have said he makes less than that figure are “league officials”. Which you know… can you really believe them?

        But I mean still, even if it was $5-9 million, how is that acceptable?

    • Joe Mann says

      I wondering if Stern and his Senior staff will be paid their full salaries during the lockout. …Also was only comparing the writings and opinions of Sheridan and Vecsey over the recent lockout situation and Sheridan for a veteran NBA correspondent and has been beyond naive….not the case with Vecsey.

  2. Joe Mann says

    I think thru all this the Peter Vecsey writings are the best and the Chris Sheridan viewpoints have been by far the most naive and off base opinions on this entire situation

    • Michael says

      His optimism has been quite off base in this lockout, but when you compare how many things Vecsey has been wrong on and Sheridan has been right on throughout their careers, it’s not much of a comparison.

  3. Dev says

    The league is basically trying to create a system where they won’t have to compete for talent. Effectively reducing the amount of money paid to all players.

    • Vincent says

      No, the league is trying to create a system where

      - each team has a chance to compete for a championship, even the Charlotte Bobcats and the New Orleans Hornets of the League
      - teams like the Lakers and the Knicks don’t get first dibs at any free agent or trade target out there because of a player’s preference for venue
      - teams like the Lakers and the Mavs can’t spend their way to a championship

      And the players are balking because it restricts their “freedom of movement”. The players have made it clear that money isn’t even as important as that, being willing to go down to 50/50 but nixing the deal when player movement was restricted with the more punitive luxury tax and other measures.

      • Mapko says

        Lets see if I get this right?
        The whole thing (Player movement) is about allowing Howard & Paul choose where they want to play in 2012 while “somebody” (????????????) has to make sure they get paid max. After all 50:50 means players get 50%. Is it really that important that Howard & Paul get to choose where they want to play?
        How is this for a suggestion to NBA PA:
        -Let PA buy all the teams in NBA
        -Create 8 “supper teams” w 80 players -fantastic regular season & playoffs (excellent TV deal)
        -Screw the other 370 players & other 22 teams/cities.

  4. WC says

    If you are negotiating with someone, offer them a deal, but they say no, it is a 100% certainty that you will eventually have to say “this is our last offer”. Otherwise the direction of the offer will keep moving against you until your opponent gets everything his own way.

    Suppose the NBA came back with a better offer and they said no. The NBA would have to come back with an even better one. Suppose they said no again. We could theoretically keep moving in the opposite direction until the players owned the teams and were incurring huge operating losses and locked themselves out. lmao

    You have to draw a line in the sand eventually. It’s inevitable. What people can argue is that they don’t like where the line is, but that’s a different issue.

    Seriously, people should get the point. Just because you say “This is my final offer” does not mean you are not negotiating in good faith.

    • skelman says

      They didn’t draw a line in the sand, they gave an ultimatum. Accept a bad deal or we offer you a worse one. That isn’t negotiating in good faith. It’s dictating of terms.

      • p00ka says

        And the union gave an ultimatum 20 months ago: give us what we want or we’ll decertify. I’d think every move the league has made since then has been geared toward winning the ultimatum the union set. The players will rue the day they didn’t take the deal.

        • illyb says

          Only difference is the players association did so behind closed doors(iirc), Stern said his on camera, ie it is really really easy to prove in court.

          • p00ka says

            Do you think Kesler is going to purjure himself in court? He’d be playing with destroying his career.

      • Mapko says

        How the hell is that a bad deal?????????????????
        Owners are giving players 50% while keeping just enough to break even.

    • LT says

      Yet Stern had the nerve to say on ESPN yesterday that “now the NBA doesn’t even have anyone to negotiate with.” If you’ve stopped negotiating, you can’t complain that you have no one with whom to negotiate. Stern overplayed his hand. And we all lost.

      • WC says

        I think this is a nonsensical position.

        If you are negotiating with someone, offer them a deal, but they say no, it is a 100% certainty that you will eventually have to say “this is our last offer”. Otherwise the direction of the offer will keep moving against you until your opponent gets everything his own way.

        Now granted, the players did most of the giving, but that’s irrelevant to the point I am making.

        There are only two ways to end a negotiation.

        1. You make an offer and they accept.

        2. You make an offer or series of offers, they don’t accept, and you eventually make a final offer. If they accept it’s done and if not the negotiation is done and you both fail. But there HAS TO evenntually be a final offer.

        • Steve K says

          You aren’t being honest.

          The players did ALL of the giving. And Stern gave ultimatums and ultimately HE stopped negotiating. The players came all the way down to 50%. They conceded a lot. The league got enough to cover their losses and still weren’t happy. This is different than the NFL, and I think the NBA may get bitten in the arse.

          I think you could even make a case that the NBA NEVER negotiated honestly. They knew that Hunter and DF would never accept that final offer. Boies may make the argument that losing this season was their intent all along.

          Ha, oh yeah. And Stern made several public threats, all of them much worse than what Kessler said. If anything Stern’s going to lose his job.

          • Steve K says

            The NBA has existed for decades without the model that the small markets want to implement. It’s time for some responsibility to be taken. Starting with the owners of the small markets.

        • Dev says

          You can’t have a final offer with the THREAT of a worse offer. If the offer was FINAL it would have stayed 50-50.

          The league has not negotiated in good faith.

    • Fysh says

      Add that stern spent a weekend saying union couldn’t offer amendments tells the union negotiations are over. The league has wanted to destroy players or litigate from start. To so where is my bargaining partner at this stage is beyond insincere. Still the league will eventually win, it seems inevitable. Though new lawyers strategy is interesting. I wonder if they flood NBA w multiple suits it will get owners to come to them. I still can’t believe there wasn’t 16 owners who would relent on some of those system issues players want. I’d think 16 of them would take union’s 300 mil and go back to business of making money.

      • Vincent says

        A couple of lawsuits aren’t going to scare the owners. These are all sophisticated businessmen who have gone through this before. It’s all a calculated business risk. They’ve run the analysis, and they’re rolling the dice. It will take more than a few unfavourable words (read, a judgment from some sort of preliminary motion) from the court before any of the owners are going to start thinking about extending a better offer to the players.

        Also, you think there aren’t more than 16 teams willing to fight to see the Lakers et al. brought down a notch?

  5. MinneMike says

    I don’t think Bois strategy will work. There are no restrictions as to what the NBA offers players. Stern’s position is entirely justifiable, however it is portrayed.

    Filing in Minnesota and California is obviously intended to pick the most pro-boycotters jurisdictions. But to suggest that the NBA hasn’t bargained in good faith is preposterous.

  6. Lincoln says

    “With David Stern saying don’t look for another offer because you’re not going to get one, that’s not collective bargaining, and there’s some distinct facts here,” Boies said. “I think it turned out to be a mistake. If you are in a poker game and you’re going to bluff, and the bluff works, you’re a hero. If somebody calls your bluff, you lose. I think the owners haveoverplayed their hand.”

    This is what i have an issue with. Stern never said he wouldn’t negotiate anymore. He said the next time they negotiate it would start at a reset offer. Forgive me, but that’s not saying they are gonna stop negotiating.

    • Chris says

      Not true.

      “There comes a time when you have to be through negotiating, and we are,” Stern says. If the union does not ratify the offer, the league’s next proposal will be the reduced one: a 53-47 split of revenues, a flex cap with a hard ceiling and salary rollbacks.

      This is not saying they would continue to negotiate, but that if the proposal wasn’t agreed to, they would revert to a reduced proposal, one that wouldn’t be negotiated.

    • MinneMike says

      Well, it is collective bargaining and there was still an offer on the table when the players walked away from the process. The NBA has bargained in good faith throughout the process, the players decided not to accept the agreement but there was still another agreement on the table no matter how much less favorable it was.

      Bois is blowing smoke. What he wants is to apply whatever leverage he has to the NBA in order to get them to open up to more favorable terms. The courts are not going to side with the players, they left the process.

      • Adrian says

        yeah there was still an offer on the table that the players looked over and it didn’t meet their concerns. If they went back to the negotiating table, Stern has already said that the next offer would be even farther away from meeting the players concerns. It sucks, but whatelse are the players going to do?

        Except an offer that doesnt meet their concerns, or go and try to move the owners off an even worse offer? The players havent been negotiating like that at all. They continued to move towards the owners…. even when stern was playing that “Im at 50, I went back to 47 but came back up to 50 again crap”…. and the concessions that the owners claim to have made are nothing short of ridiculous. LOl anybody who has been following the negotiations can clearly see that the owners have literally given NOTHING benneficial to the players that wasnt in the last cba. To top it off, the players havent even pushed them to give anything.

        I hope the league has to pay 3 times the 2 billion, and stern gets thrown out for a commisioner who is serious about getting a deal done during the next work stoppage.

        • p00ka says

          Was threatening to decertify 20 months ago good faith? Was talking about starting their own league good faith? Someone should have put a muzzle on Amare, because that alone will be huge against them in a court case. Stern and his team know exactly what they’re doing and the players don’t have a hope in hell of winning those cases. They’re just giving up more $$$ to the lawyers and will gain nothing from it. They’ve been played and don’t even realize it.

    • Vincent says

      Not sure what the law in the US is on this matter, but it would seem absolutely idiotic if the owners get punished just because they use an oft-used negotiating tactic such as issuing a “last, best offer” in the helps of settlement.

      Like others have said, there comes a time when you really have reached your limit of what you think you’re willing to give up, and to me there’s nothing wrong with drawing that line in the sand.

      Now, whether or not it’s a good negotiating tactic in the circumstances is of course up for debate.

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