National Basketball Association et al v. National Basketball Players Association et al

Filing 46

DECLARATION of Adam Silver in Opposition re: #25 MOTION to Dismiss.. Document filed by Atlanta Hawks, LP, Banner Seventeen LLC, Bobcats Basketball, LLC, Cavaliers Operating Company, LLC, Chicago Professional Sports Limited Partnership, Dallas Basketball Limited, Detroit Pistons Basketball Company, Golden State Warriors, LLC, Hoops, L.P., Jazz Basketball Investors, Inc., LAC Basketball Club, Inc., Madison Square Garden, L.P., Maple Leaf Sports & Entertainment Ltd., Miami Heat Limited Partnership, Milwaukee Bucks, Inc., Minnesota Timberwolves Basketball Limited Partnership, National Basketball Association, New Orleans Hornets NBA Limited Partnership, Orlando Magic, Ltd., Pacers Basketball LLC, Philadelphia 76ERS L.P., Rocket Ball, Ltd., Sacramento Kings Limited Partnership, LP, San Antonio Spurs, L.L.C., Suns Legacy Partners, L.L.C., The Denver Nuggets Limited Partnership, The Los Angeles Lakers, Inc., The Professional Basketball Club, LLC, Trail Blazers, Inc., Washington Bullets, L.P.. (Attachments: #1 Exhibit (s) 1 Through 27, #2 Certificate of Service)(Mishkin, Jeffrey)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
NATIONAL BASKETBALL ASSOCIATION,
ATLANTA HAWKS, LP, BANNER SEVENTEEN
LLC, BOBCATS BASKETBALL, LLC, CHICAGO
PROFESSIONAL SPORTS LIMITED PARTNERSHIP,
CAVALIERS OPERATING COMPANY, LLC,
DALLAS BASKETBALL LIMITED, THE DENVER
NUGGETS LIMITED PARTNERSHIP, DETROIT
PISTONS BASKETBALL COMPANY, GOLDEN
STATE WARRIORS, LLC, ROCKET BALL, LTD.,
PACERS BASKETBALL LLC, LAC BASKETBALL
CLUB, INC., THE LOS ANGELES LAKERS, INC.,
HOOPS, L.P., MIAMI HEAT LIMITED
PARTNERSHIP, MILWAUKEE BUCKS, INC.,
MINNESOTA TIMBERWOLVES BASKETBALL
LIMITED PARTNERSHIP, NEW JERSEY
BASKETBALL, LLC, NEW ORLEANS HORNETS
NBA LIMITED PARTNERSHIP, MADISON SQUARE
GARDEN, L.P., THE PROFESSIONAL
BASKETBALL CLUB, LLC, ORLANDO MAGIC,
LTD., PHILADELPHIA 76ERS L.P., SUNS LEGACY
PARTNERS, L.L.C., TRAIL BLAZERS, INC.,
SACRAMENTO KINGS LIMITED PARTNERSHIP,
LP, SAN ANTONIO SPURS, L.L.C., MAPLE LEAF
SPORTS & ENTERTAINMENT LTD., JAZZ
BASKETBALL INVESTORS, INC., and
WASHINGTON BULLETS, L.P.,
Plaintiffs,
vs.
NATIONAL BASKETBALL PLAYERS
ASSOCIATION, DEREK FISHER, KEYON
DOOLING, JAMES JONES, MATT BONNER,
MAURICE EVANS, ROGER MASON, JR., CHRIS
PAUL, THEO RATLIFF, ETAN THOMAS, AMAR’E
STOUDEMIRE, MIKE DUNLEAVY, JAMES
FREDETTE, CHARLES JENKINS, and all those
similarly situated,
Defendants.

DECLARATION OF
ADAM SILVER IN
OPPOSITION TO
DEFENDANTS’ MOTION TO
DISMISS FOR LACK OF
SUBJECT MATTER
JURISDICTION
11 Civ. 5369 (PGG)

Adam Silver declares, under penalty of perjury, as follows:
I.

PRELIMINARY STATEMENT
1.

I am the Deputy Commissioner of the National Basketball Association

(“NBA” or the “League”), having served in that capacity since July 1, 2006. I joined the NBA in
1992 as Special Assistant to the Commissioner of the NBA. Before becoming Deputy
Commissioner, I served as NBA Chief of Staff; Senior Vice President and Chief Operating
Officer, NBA Entertainment; and President and Chief Operating Officer, NBA Entertainment. I
submit this declaration in opposition to defendants’ motion to dismiss for lack of subject matter
jurisdiction. The facts set forth herein are based either on my personal knowledge or on
information I have received and believe to be true and correct.
2.

The NBA and the National Basketball Players Association (the “NBPA”

or “Union”) have had a continuous collective bargaining relationship for more than forty years.
During this period, the parties have entered into fourteen collective bargaining agreements, the
most recent of which was entered into in 2005 (the “2005 CBA”). The 2005 CBA expired by its
terms on June 30, 2011, with no successor agreement having been reached. On July 1, 2011, the
NBA exercised its right under federal labor law to lock out the NBA players. The lockout has
remained in effect continuously since July 1, 2011.
3.

The NBA and the NBPA take diametrically opposed legal positions with

respect to the lawfulness of the lockout. The NBA contends that the lockout is in all respects
lawful and does not violate the antitrust laws. I understand that the NBPA and the player
defendants contend that, at any moment of their choosing, they may “decertify” or “disclaim”
interest in having the Union continue to serve as the players’ collective bargaining representative
and that such action would convert the lockout into a violation of the antitrust laws, entitling

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defendants to an injunction against the lockout and a claim for treble damages. As I explain in
greater detail below:
(a)
The NBPA has, throughout the parties’ current negotiations,
threatened to employ the disclaimer tactic. (See infra ¶¶ 4–28.)
(b)
The NBPA’s threats to disclaim and commence antitrust litigation,
and its preparedness and ability to do so, are confirmed by the collection
of authorization cards that enable the NBPA, in its view, to disclaim and
launch an antitrust attack against the NBA’s lockout at any time the Union
itself decides that such an attack would serve its bargaining interests. (See
infra ¶¶ 12, 18.)
(c)
Earlier this year, the NBPA’s counsel, Mr. Jeffrey Kessler,
employed precisely the same disclaimer strategy on behalf of his other
client, the NFL Players Association (“NFLPA”), and, in order to ensure
that the NBA understood that it faced the same threat, reported during the
current bargaining sessions on the “chaos” that had befallen the NFL by
reason of the antitrust litigation brought by the NFL players. (See infra ¶¶
14–17.)
(d)
The threats of disclaimer and antitrust litigation have had and are
having a direct, immediate, and harmful effect on the ability of the parties
to reach a new collective bargaining agreement because the players have
taken the position that if they do not succeed in getting what they want in
collective bargaining negotiations, they can disclaim interest and
challenge the NBA lockout in an antitrust complaint. This Court can
remove this collective bargaining impediment by clarifying and resolving
the controversy that now exists between the parties over the legality of the
NBA’s lockout. (See infra ¶¶ 4, 15–17, 21, 27.)
II.

THE REPEATED THREATS OF DISCLAIMER AND ANTITRUST
LITIGATION THAT HAVE BEEN MADE IN THE CURRENT ROUND OF
BARGAINING
4.

On October 29, 2009, the NBA informed the NBPA that it had chosen not

to exercise its option to extend the 2005 CBA for the 2011–12 NBA season, with the result that
the 2005 CBA would expire on June 30, 2011. The NBA wanted to reach a successor agreement
at the earliest possible date so, on January 29, 2010, it made its first collective bargaining
proposal to the NBPA for a new CBA. As set forth in detail below, throughout the bargaining
process, defendants and their counsel have, on numerous occasions, expressly or by clear
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implication, threatened to disclaim or decertify and bring antitrust litigation against the NBA if
defendants did not get their way at the bargaining table.

5.

On February 12, 2010, the NBA and NBPA met to discuss the NBA’s first

proposal. During that session, NBPA counsel Mr. Kessler stated expressly that the NBA’s
proposal had “radicalized” the players, that “decertification is very much on their minds,” and
that, if the NBA did not alter its bargaining position, “in the future, there may not be a union with
whom to negotiate.” In response, NBA Commissioner Stern expressed concern over the Union’s
bargaining tactics, “particularly the threat made by Mr. Kessler to decertify.” After the meeting,
defendant Derek Fisher, President of the NBPA, explained the significance and reality of Mr.
Kessler’s threat, saying: “That wasn’t the plan going in to create fear . . . . (That) was just
something that Jeffrey felt that he wanted to say. He’s a very experienced attorney. . . . I don’t
think it was as a scare tactic. It was as much to express to us what the potential realities are.”
Chris Tomasson, Union President Fisher: Premature to Say NBA Salaries Too High, AOL
Fanhouse, (Mar. 1, 2010, 4:45 PM), attached hereto as Exhibit 1.
6.

On May 24, 2010, Mr. Kessler again reiterated his view that

decertification and antitrust litigation were potential weapons that could at any time be wielded
against the NBA. In discussing the Supreme Court’s decision in American Needle, Inc. v. NFL,
130 S. Ct. 2201 (2010), Mr. Kessler was quoted in Sports Business Daily, a leading national
trade publication: “[T]he fact that [this verdict] is unanimous means the single entity argument
for sports leagues is basically dead. It means that the option to decertify and assert antitrust
rights is as strong as it has ever been.” Liz Mullen, U.S. Supreme Court Overturns Ruling in
American Needle Case, Sports Business Daily, (May 24, 2010), attached hereto as Exhibit 2.
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7.

In my experience, statements to the news media during collective

bargaining negotiations are used as a means of communicating positions both to the speaker’s
own constituents as well as to the other party to the negotiations. Thus, when Mr. Kessler or
NBPA leaders or members state to the press that their de-unionization/antitrust litigation strategy
is “as strong as it has ever been,” or that such a strategy is an “option” the Union can always
pursue, they know and intend that the statement will be read and considered by their bargaining
counterparts at the NBA.

8.

Throughout the summer of 2010 the parties continued to exchange

information and hold staff-level meetings in New York, and the NBPA provided the NBA with
the Union’s first bargaining proposal. The principal negotiators met for one meeting each on
August 12, September 22, and October 19, at the Omni Hotel in Manhattan.
9.

During this period, Mr. Kessler again sought to convey the Union’s

position that it possessed the ability, at any moment of its choosing, to render the lockout illegal
through disclaimer or decertification. Referring to that strategy in another interview with the
Sports Business Journal, Mr. Kessler stated, “It is absolutely an option . . . . During the
negotiation, there was a discussion of a lockout and it was discussed, if there was a lockout, one
of the options we had was decertifying, which would make a lockout illegal.” Liz Mullen, With
NFL players taking decertification vote, will NBPA be next?, Sports Business Journal, (Oct. 4,
2010), attached hereto as Exhibit 3. In the same article, player agent David Falk (who currently
represents NBA players Mike Bibby, Elton Brand, Toney Douglas, Patrick Ewing Jr., Jeff Green,
Roy Hibbert, Juwan Howard, Greg Monroe, and Evan Turner) described decertification as “an

5

arrow in the quiver of the players” and asserted that “[a]s a matter of law, most of the restrictions
in professional sports . . . are generally considered to be illegal under the antitrust laws.” Id.

10.

In December 2010, Union executive director Hunter explained that

“[d]ecertification is just one of the options that the union would have in the event of a protracted
lockout . . . . When you look at what your options are, you’ve got to look at everything. It’s just
one of the thing we may have to contemplate . . . .” Jonathan Abrams, Union Chief Pays a Visit
to the Knicks, N.Y. Times N.B.A. Blog, (Dec. 14, 2010, 3:00 PM), attached hereto as Exhibit 4.
On the same day, USA Today quoted defendant James Jones, the Secretary-Treasurer of the
NBPA, as stating that decertification is “one of the options for us. This is a very serious time for
us in these negotiations. You have to be prepared to use all available means to get something
done.” Michael McCarthy, Decertification looming for NBA players union?, USA Today, Dec.
15, 2010, attached hereto as Exhibit 5. Another article reported that NBA player agent Mark
Bartelstein (who represents forty-five NBA players, including Mo Williams) was “advising his
clients to vote in favor of decertification.” Howard Beck, N.B.A. Players Voting on Step Toward
Dissolving Union, N.Y. Times, Dec. 13, 2010, attached hereto as Exhibit 6.
11.

Two days later, NBPA President Fisher reportedly said that although he

was “staying focused on what we’re trying to get accomplished in terms of a collective
bargaining agreement,” he was “still recognizing that decertification is something is real and it’s
tangible.” Broderick Turner, Derek Fisher says NBA players won't rule out decertification, L.A.
Times, Dec. 16, 2010, attached hereto as Exhibit 7. Mr. Fisher was also quoted as saying that
“it’s more about preparing ourselves for what may come. There hasn’t been any final decision

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made on our part as far as that being something we are definitely going to do. We’re preparing
ourselves for whatever happens as this process unfolds.” Id.
12.

During the same week, additional NBA players offered similar statements.

NBA player Spencer Hawes was quoted on decertification, stating that “[t]here has been no vote,
but it’s something we talked about . . . . It is an option that is being weighed heavily.” Marc
Narducci, Sixers Notes: Report: Union ponders decertification, Phila. Enquirer, Dec. 16, 2010
(emphasis added), attached hereto as Exhibit 8. Mr. Jones was again quoted on decertification in
an article that described Jones as stating that “the team has been briefed on the [decertification]
option.” Ira Winderman, NBA Extra, Sun-Sentinel (Fort Lauderdale, Fla.), Dec. 19, 2010, at 3C
(emphasis added), attached hereto as Exhibit 9. The article quoted Jones as stating that “[g]uys
understand what [decertification] means . . . . If it comes to it, that’s what we’ll do. This is a
very serious time. You have to be prepared and willing to do whatever it takes.” Id.
13.

Immediately following a collective bargaining session in February 2011,

Mr. Hunter confirmed that the NBPA had taken concrete steps to further its disclaimer/antitrust
strategy. Mr. Hunter said, “What we’ve been doing is, during the team meetings over the first
half of the season, we have gone around and collected decert forms. Because if it becomes an
issue, we want to make sure have done the preliminary steps that we would have to do in order to
present the matter to the National Labor Relations Board.” Sean Deveney, ‘Nuclear option’ not
currently in play, but may be in the future, Sporting News, (Feb. 19, 2011, 12:29 AM) (emphasis
added), attached hereto as Exhibit 10. Based on my long experience in the sports industry,
including my previous involvement in collective bargaining for the NBA, it is my understanding
that these “decert forms” collected by the Union authorize the NBPA to disclaim its status as the

7

players’ exclusive bargaining representative, enabling NBA players to bring antitrust litigation
against the NBA at the moment of the NBPA’s choosing.

14.

The NFL CBA expired in March 2011, and the NFL players threatened

and eventually filed an antitrust class action (Brady v. NFL) after the players’ union disclaimed
interest in serving as their collective bargaining representative. The NFLPA had collected
renunciation cards ahead of time – as the NBPA has done here – and filed an antitrust class
action within minutes of disclaiming and concluding a formal collective bargaining session.
15.

Shortly after Brady was filed, defendant Etan Thomas, Vice President of

the NBPA, discussed the case on his blog: “I was granted permission by Billy Hunter to speak
for the union, so I wanted to say that the NBPA is in full support of our NFL brothers and their
stance against the NFL. We are convinced that an NFLPA decision to litigate will help our cause
since any decision will be applicable to our situation, and we thank them for setting a precedent.
How seriously should the NBPA consider decertifying the union in order to keep the NBA from
legally locking out the players? Should the NBPA and NBA follow the decision of the NFLPA
and NFL by hiring a mediator to facilitate discussions and postponing a lockout deadline?” Etan
Thomas, My New 21 Questions, HoopsHype, (Mar. 21, 2011, 11:20 AM), attached hereto as
Exhibit 11.
16.

Similarly supportive statements of the NFLPA’s litigation strategy

continued throughout March and April 2011. In March, the Minnesota Timberwolves’ players’
union representative, Anthony Tolliver, was quoted as stating that decertification was
“something that’s looming as an option . . . . It’s been talked about, but we’re not sure we’re
going to do it. We’re just keeping our options open.” Ray Richardson, Union following NFL
8

brethren, St. Paul Pioneer Press, Mar. 12, 2011, at B5 (emphasis added), attached hereto as
Exhibit 12. In April, Mr. Hunter was quoted as follows: “I think the owners are waiting to see
what happens with the NFL case, just as we are . . . . We’ve talked about decertifying, like the
NFL players have. We might want to go that route, too, but let’s see what happens in
Minneapolis first.” Mitch Lawrence, NBA Union May Tackle NFL Players’ Strategy, N.Y. Daily
News, Apr. 6, 2011, at 62 (emphasis added), attached hereto as Exhibit 13. Mr. Fisher was
similarly quoted on the NFL situation as stating, “I don’t think there’s any question that how
some of the things on the NFL side are playing out are going to impact the way our NBA labor
situation plays out. . . . [T]here are also some similarities that I think will give us as players as
well as our owners a little bit of an indication of how things would play out if we went down
certain paths. So I’m sure both sides will continue to watch the NFL situation closely.” J.A.
Adande, Fisher reaction to NFL lockout ruling, ESPN.com: TrueHoop, (Apr. 25, 2011, 11:16
PM), attached hereto as Exhibit 14.
17.

Mr. Hunter expressly acknowledged that Brady was affecting the NBA’s

bargaining. In an interview in late-March, CBS Sports quoted Hunter as follows: “‘What we’ve
done is, we’re now reviewing it in view of the decision that happened with football,’ Hunter
said.” Ken Berger, Post-Ups: NBPA looks to learn from NFLPA's decertification tactics, (Mar.
29, 2011), attached hereto as Exhibit 15.
18.

In an interview in March, union representative Tolliver acknowledged that

because the NBPA had already collected the “decert forms,” the strategy of disclaimer and
antitrust litigation could be pursued at any moment it suited the bargaining tactics of the Union.
Answering a question about decertification, Mr. Tolliver explained, “It’s something that is
looming. . . . It’s something that’s been talked about. But it’s not like we are for sure doing it,

9

it’s just something that is an option. We’ve taken the necessary steps to make it to where if it
does come down to that, it’s a quick transition. We don’t have to do too much but make it
happen.” Dana Wessel, NBPA, Owners are 'way further apart' than NFL, Tolliver says,
1500ESPN.com SportsWire, (Mar. 11, 2011, 9:24 PM) (emphasis added), attached hereto as
Exhibit 16.

19.

Against this backdrop of repeated statements from the NBA players that

they were “considering” the “option” of decertification because it was “real” and “tangible,” as
well as their statements that the Union’s collection of “decert forms” had provided the Union
with the ability to disclaim and litigate at a moment’s notice, the parties held another collective
bargaining session on May 5, 2011. It was at this meeting that Mr. Kessler offered his first
“update” on the litigation in Brady. In providing this update, Mr. Kessler described what he
termed the “chaotic” situation that antitrust litigation had created for the NFL and explained that,
if the Eighth Circuit did not disturb the ruling of the district court (which had granted a
preliminary injunction against the NFL’s lockout), the NFL was exposed to treble antitrust
damages during the period of adjudication over the ultimate antitrust legality of the lockout. To
those of us on the NBA’s negotiating team, the clear implication of Mr. Kessler’s “update” was
that the NBA players could employ the same strategy and cause the same chaos in the NBA if
they did not get what they wanted in the collective bargaining negotiations.
20.

Following this session, prominent NBA player agents continued to predict

that the NBA players would in fact decertify the Union. Two days after the bargaining session,
Arn Tellem, a player agent who currently represents forty-six NBA players, including NBPA
Executive Committee member and defendant Etan Thomas and players Pau Gasol, Derrick Rose
and Kendrick Perkins, authored an op-ed piece in the New York Times, in which he stated: “Pro
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football players voted to decertify their union in March immediately before the owners imposed
a long-expected lockout. Faced with a similar situation, pro basketball players will almost
certainly follow suit. . . . Decertification has allowed N.F.L. players to sue the league on
antitrust grounds . . . . At the very least decertification allowed the players to get an injunction
from a federal judge to stop the lockout, pending an appeal. Sure, the N.F.L. could attempt to
impose whatever salary and free-agency restrictions it wishes, but it will have to tread carefully.
If the league loses an antitrust suit, it will have to pay each player affected three times his actual
economic loss.” Arn Tellem, Op-Ed, When a Player's Union Doesn't Help the Players, N.Y.
Times, May 7, 2011, attached hereto as Exhibit 17. Two days later, player agent David Falk said
on WTEM radio that he “would predict that based on the success so far that the football players
have had, even though the injunction’s been stayed, I suspect the [NBA] players will decertify.”
Transcript of Lunch With A Legend: NBA v. NBPA, WTEM radio, Washington, D.C., May 5,
2011, at 45:25-46:4, attached hereto as Exhibit 18.
21.

Subsequent collective bargaining sessions produced similar threats. At a

May 13 collective bargaining session, Mr. Kessler provided another “update” on the NFL
litigation, adding that, regardless of whether the Eighth Circuit affirmed or reversed the district
court’s decision (it eventually reversed), the NFL would be subject to “continued chaos” wrought
by the antitrust litigation the NFL players had commenced. Similarly, at a June 23 bargaining
session, Mr. Hunter stated that the runway for making a deal had shortened and that he would
have to choose between “rallying the players to war” or working to convince them to make a
deal. The NBA understood these statements as yet another threat of antitrust litigation.
22.

With less than a month before the expiration of the CBA, Mr. Hunter and

Mr. Kessler continued to acknowledge that the Union’s antitrust position – that decertification or

11

disclaimer and an antitrust lawsuit was an “option” available to the NBPA at the moment of their
strategic choosing – was affecting the parties’ collective bargaining. After a June 8 collective
bargaining session, Mr. Hunter and Mr. Kessler gave an interview in which they explicitly
recognized that the viability of the Union’s antitrust claims was having this effect: Mr. Hunter
said that the outcome of Brady could “have some impact on our respected positions,” and Mr.
Kessler again acknowledged the value in bargaining leverage to the NBPA of a looming antitrust
threat, stating that “[t]here is uncertainty in the air and sometimes uncertainty is a helpful fact.
So I think everyone in basketball is aware of what is going on in football and as Billy said it[‘]s
going to have some influence and we’ll just have to see how that plays out.” NBPA, PostMeeting Scrum Transcript, June 8, 2011, at 2-3 (emphasis added), attached hereto as Exhibit 19.

23.

At midnight on June 30, 2011, the 2005 CBA expired by its terms and the

NBA lockout began. On July 9, an article in the New York Times described the lockout and the
potential likelihood of decertification, noting that “the path the N.F.L. Players Association chose
— decertification, coupled with an antitrust lawsuit — remains a weapon in the basketball
players’ arsenal should negotiations fail. ‘It’s not off the table in any way,’ said Jeffrey Kessler,
the outside counsel for the N.B.P.A. ‘There’s no immediate urgency to that issue. It’s an option
the players are actively considering.’” Howard Beck, Two Lockouts, Each With a Different
Playbook, N.Y. Times, July 9, 2011 (emphasis added), attached hereto as Exhibit 20.
24.

In late July, pressure intensified on the Union to disclaim or decertify and

bring antitrust litigation. On July 23, 2011, a group of NBA agents representing scores of NBA
players met with the NBPA, including Mr. Hunter, to urge the immediate implementation of the
decertification/antitrust litigation strategy. Yahoo! Sports quoted an unnamed NBA player agent,
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“We have one weapon left, and that’s decertification. . . . We need to use it.” Adrian
Wojnarowski, NBA agents want union to decertify, Yahoo Sports, (July 23, 2011, 12:42 PM),
attached hereto as Exhibit 21. The Business Insider reported that prominent NBA agents “Arn
Tellem of Wasserman Media Group, Mark Bartelstein of Priority Sports, and many other
prominent basketball agents met with [NBPA] Executive Director Billy Hunter on Friday [July
23] to talk about the NBA lockout (which began on July 1, 2011), including the possibility of
decertification of the union.” Powerful NBA Agents Are Thinking About Decertifying The NBPA,
Business Insider Sports Agent Blog, (July 25, 2011, 4:44 PM), attached hereto as Exhibit 22.
Describing the meeting, Sports Illustrated noted that the Union “is hoping to receive a ruling
from the National Labor Relations Board that could result in an injunction against the lockout. If
that complaint should fail and no headway can be made in negotiations, the executive director
says the union will strongly consider decertification. He says the union may reach that decision
before January . . . and that it may also encourage a group of players to file a lawsuit against the
NBA, even though such a move could take time to be resolved in the courts.” Ian Thomsen,
Derek Fisher Wants The Ball, Sports Illustrated Vault, July 25, 2011, attached hereto as Exhibit
23.

25.

On August 2, 2011, faced with defendants’ continued threats of antitrust

litigation over the legality of the lockout, and the resulting damage to the bargaining process, the
NBA commenced this action seeking a declaration that the lockout is lawful and does not violate
the antitrust laws, whether or not defendants choose to disclaim or decertify the Union.

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26.

Since the filing of this action, NBA player agents representing more than

200 players have continued to make it clear that antitrust litigation is not only increasingly likely,
but is also the course of action they have strongly urged the Union to pursue. For example, on
September 14, 2011 – just two days before defendants filed their papers on this motion – at least
five NBA player agents, who collectively represent 190 players, held a conference call to discuss
the decertification/antitrust litigation strategy. As reported by Sports Business Daily, “NBA
player agents Arn Tellem, Bill Duffy, Mark Bartelstein, Jeff Schwartz and Dan Fegan held a
conference call Monday to discuss ‘how they can help the players union in its stalemate with the
league’s owners,’ and their answer was to ‘blow the union up’ . . . . The agents’ view ‘is that the
owners currently have most, if not all, of the leverage in these talks and that something needs to
be done to turn the tide.’ They believe that ‘decertification will do the trick,’ and spoke Monday
‘about the process of decertifying the union.’” NBA Lockout Watch, Day 76: Agents May Try To
Force NBPA Decertification, Sports Business Daily, (Sept. 14, 2011) (citation omitted), attached
hereto as Exhibit 24. Because these agents, who are publicly advocating decertification,
represent more than forty percent of the players on NBA rosters during the 2010–11 season, they
represent well more than the percentage needed under federal labor law (i.e., 30%) to bring about
a decertification election, even over the Union’s and Mr. Hunter’s objection. Moreover, a sixth
prominent NBA agent, Leon Rose, who represents more than six percent of players on NBA
rosters during the 2010–11 season, including Chris Bosh, LeBron James, Dwayne Wade, and
defendant Chris Paul, has reportedly joined the decertification movement. See Sam Amick, NBA
Agents Growing in Favor of Players’ Union Decertification, Sports Illustrated.com, (Sept. 17,
2011, 1:57 AM), attached here to as Exhibit 25. Support for decertification and antitrust

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litigation by agents representing hundreds of players adds greater immediacy to the instant
antitrust dispute and its impact on bargaining.
27.

Recently, Mr. Hunter has said in an interview, “I refuse to treat

decertification as a game . . . . I won’t take it off the table because it’s still a last resort.” Mike
Wise, NBA lockout: Union chief Billy Hunter knows how to fight fairly, Wash. Post, Sept. 21,
2011, attached hereto as Exhibit 26. And following the October 4, 2011, bargaining session, Mr.
Hunter responded as follows when asked whether the parties’ failure to reach a negotiated
solution in the day’s session made decertification the next step: “Clearly that’s something we
may have to give some thought to.” Cindy Boren, NBA players, officials end talks with season
opener at risk, Wash. Post. The Early Lead Blog, (Oct. 4, 2011, 6:14 PM), attached here to as
Exhibit 27.
28.

The Union’s antitrust position – that at any moment of its choosing, it can

render the lockout a per se antitrust violation by decertifying or disclaiming – is having a current
impact on the parties’ ability to reach a new CBA. In Mr. Hunter’s words, the NBPA’s “last
resort” bargaining positions on a number of difficult “blood issues” is to disclaim and file an
antitrust suit. Thus, when the Union says it will “never” agree to a particular proposal (or
characterizes a proposal as a “blood issue”), it is clear to the NBA that the Union is implying that
it would never agree to such a proposal without first engaging in the de-unionization/antitrust
litigation strategy. If the Court were to declare, as the NBA requests in this declaratory judgment
action, that such a strategy is based on the Union’s incorrect understanding of the antitrust laws,
it is much more likely that the parties would reach a new collective agreement.

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