Decertification & An Ultimatum

Getty Images/DayLifeThis week we could learn whether there will be a season or not. The NBA issued something resembling an ultimatum in Saturday night’s negotiating session. Not even mediator George Cohen could keep the two parties at the table as basketball-related income continued to split the parties.

The latest deal the NBA offered was something resembling a band that would guarantee the players 49-51 percent of basketball-related income. NBPA attorney Jeffrey Kesler called the offer something of a sham. The players seem steadfast in either getting the 52 percent deal or changing the system enough to be comfortable with 50-50. Neither deal seems close.

“The players will not be intimidated,” attorney Jeffrey Kessler said. “They want to play, they want a season, but they are not going to sacrifice the future of all NBA players under these types of threats of intimidation. It’s not happening on Derek Fisher’s watch; it’s not happening on Billy Hunter’s watch; it’s not happening on the watch of this executive committee.”

These are not words that make you think a deal is near. And David Stern said the deal could get much worse if this deal is not accepted by Wednesday. The deal then could revert back to a 47 percent offer with a flex cap system that the players rejected in June. The owners warned that the deal could get much worse as games are lost as the owners try to recoup losses from this season in the deal.

The dreaded nuclear option is coming up on the horizon.!/DeronWilliams/status/133100844307587072

Twitter / @DeronWilliams: I’ve been ready to sign a … via kwout

There is no getting around it. Decertification is fully on the table now.

Several reports had the players meeting to discuss the option of decertification throughout the week. Reportedly Paul Pierce has been the most vocal supporter (other than Deron Williams’ tweet above… and if you read his timeline, you see Williams explained his decision to play in Turkey was because he knew the lockout would take the whole year). Marc Stein and Chris Broussard of ESPN report that Dwight Howard, Dwyane Wade and Ray Allen were also among the more vocal supporters of decertification.

Howard has been very quiet, as have most Magic players including the Magic’s player rep, Chris Duhon. This is the first I have heard of the Magic superstar injecting himself into the labor disagreement. As a free agent in 2012, Howard has a very large stake in what this deal would look like. He will be making his big max contracts under this new agreement.

He might see decertification as a way to save his vast income or have some other motivations for supporting decertification.

AP Photo/DayLifeFor those that are not familiar, decertification is the process where the players tell the National Labor Relations Board that the union no longer represents their interests and no longer has majority support. It, in a typical sense, would mean that the union has to show that it has majority support and a new union could come in and try to claim majority support.

It takes a vote of 30 percent of the bargaining unit to get a vote for decertification and then it takes a 50 percent vote for decertification to actually decertify the union.

In the NBA sense, this carries both substantial risk and substantial reward. Because the NBA receive anti-trust exemption, it is required by law to conduct good-faith bargaining with its union. Without a certified union to represent them, the NBA would do what the NFLPA did and seek an antitrust lawsuit with the potential for triple damages for violating the antitrust statutes.

Marc Stein reports the vote for decertification might be coming soon and that the players believe that it could soften the owner’s stance. Of course, decertification means the union loses its protection from the NLRB and that the players unfair labor practices complaint gets dropped. At this point, that might be the best chance to save the season as the NLRB, if it finds an unfair labor practice, can enjoin the NBA and, at least temporarily, end the lockout while it investigates and prosecutes the unfair labor practice against the league.

I imagine the owners want no part of operating under the old collective bargaining agreement and a deal would come swiftly then.

There is still a lot to sort out even before Stern’s Wednesday deadline for accepting the deal or suffer through worse offers. Just know this, right now there is not much hope for an NBA season to get going. The players have not quite yet felt the hurt of losing paychecks and are steadfast in holding onto a positive split. Meanwhile the owners are steadfast on almost the exact opposite stance. The players have felt they have compromised enough.

That is the definition of an impasse. And so we will keep imagining an NBA season instead of actually watching one.

Philip Rossman-Reich

About Philip Rossman-Reich

Philip Rossman-Reich is the managing editor for Crossover Chronicles and Orlando Magic Daily. You can follow him on twitter @OMagicDaily