No News to Report.........And Thats A Very Bad Thing When it Comes to Collective Bargaining

by Kevin L. Davis (@EsquireSports)

Right now with the lockout in place there seems to be no real news to report on the NBA's labor situation.  The sides have not sat down at the negotiating table recently, and unfortunately that does not look like it will change any time soon.

This is a terrible thing for NBA fans to hear.  Right now the sides are so far apart that they aren't even at the table.  I hope I'm wrong, but its looking very likely right now that games will be missed in the NBA next year.

A Little More Info on Collective Bargaining

by Kevin L. Davis (@EsquireSports)

In my last article I claimed the the Players may have a valid claim that the Owners have acted in bad faith during the negotiating process based on the tactics they have used against the Players while not elaborating on why. Here is a little information explaining the laws as it relates to collective bargaining which may shed a little light on why I made that claim >>>> http://legal-dictionary.thefreedictionary.com/collective+bargaining

• 1) The employer may not refuse to bargain over certain subjects with the employees' representative, provided that the employees' representative has majority support in the bargaining unit. 
• 2) Those certain subjects, called mandatory subjects of bargaining, include wages, hours, and other terms and conditions of employment. 
• 3) The employer and the union are not required to reach agreement but must bargain in Good Faith over mandatory subjects of bargaining until they reach an impasse. 
• 4) While a valid collective bargaining agreement is in effect, and while the parties are bargaining but have not yet reached an impasse, the employer may not unilaterally change a term of employment that is a mandatory subject of bargaining. But once the parties have reached an impasse, the employer may unilaterally implement its proposed changes, provided that it had previously offered the changes to the union for consideration. 

Duty to Bargain in Good Faith

During the bargaining process, the parties are not required by law to reach agreement. They must, however, bargain in good faith (29 U.S.C.A. § 158[d]). Although good faith is a somewhat subjective concept, courts will look to the entire circumstances surrounding bargaining, including behavior away from the bargaining table such as pressure and threats (NLRB v. Billion Motors, 700 F.2d 454 [8th Cir. 1983]).

What this means in the context of the NBA's Labor Dispute?

The Players have felt all along that the Owners have been making attempts at breaking their Union and made offers so bad that no reasonable union could be expected to take it. The offers have definitely been underwhelming, and if the reported comment attributed to David Stern that "he knows where the bodies are buried because he put them there, is true that definitely sounds threatening.

I'm not guaranteeing a legal win, but it definitely sounds like the Players may have a leg to stand on.

According to ESPN's Larry Coon Owners May Be Exaggerating Figures To Reflect A Loss

by Kevin L. Davis (@EsquireSports)

If you have not read this article from ESPN's Larry Coon I suggest you check it out now >>>> http://sports.espn.go.com/nba/column...ancials-110630. In his article that he wrote based on viewing financial records of two teams (2005-06 Nets and 2008-09 Hornets) he makes 2 main arguments 1) Since the Players can't share in the profit when a team is sold it is not fair that they are burdened with the costs associated with buying the team in the first place and 2) If they don't have a say in the team's management decisions, they don't want to pay the cost when those decisions go awry.

He went on to show that the figures the Owners have been reporting as their losses may be the result of an accounting fiction. While it is true that financial statements are prepared by external auditors, who are bound by their license to do things right and subject to review by the IRS, any person who knows a little about finances you know that depending on the method you use to account for your finances, the profit/loss figures could vary by tens of millions of dollars.

This insistence of bargaining from a position of using these figures and not true basketball-related expenses and revenue could be viewed as an attempt by the Owners to doctor the numbers to exaggerate losses. If Coon is correct, its very possible that instead of 20+ teams losing money only 7 or 8 are, and they seem to be losing less than $20 mil a year.

If this is true and it is happening throughout the league, the Players may have a leg to stand on if the legal route is pursued and they allege that the Owners are negotiating in bad faith. I could very well see a court ruling that The combination of utilizing these figures instead of basketball-related expenses combined with their offers which included taking away so many rights from Players (i.e. guaranteed contracts, hard cap, smaller contract lengths, etc.) in times of increasing viewership and attendance as negotiating in bad faith.

NBA Lockout Offically in Effect

by Kevin L Davis (@EsquireSports)

It is now July 1st, and as expected the Owners have locked the players out.  Reportedly team officials (i.e. coaches, trainers, front office staffs) and their spouses have been told to not contact Players or their families during the lockout whether it be in person, by phone, or by electronic means including social media sites like Twitter and Facebook.

I'll have a few more articles coming soon covering important labor issues related to the lockout over the weekend.