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NBA lockout: Law professor predicts players' union to file more lawsuits

November 17, 2011 |  1:41 pm

The Lakers' Derek Fisher, left, president of the NBA players' union, with union Executive Director Billy Hunter

Below are excepts of an interview with Notre Dame law professor Joseph Bauer on the NBA players' union filing antitrust lawsuits against the league. Bauer specializes in antitrust law. 

On the NBA players union filing two antitrust lawsuits at federal courts in Oakland and Minneapolis:

"I don't think this is the end of the lawsuits. What's going on with these multiple lawsuits is that both parties are looking for what they perceive to be the friendliest courts." 

Will this give the players' union additional leverage?

"Only if they can persuade the court that the labor exemption from the antitrust laws can no longer be invoked by the owners and the courts should run at the antitrust claims on the merits. That could get the owners' attention. A court can't come up with a labor contract, but can they make the parties more amenable to an agreement? That's certainly possible." 

Based on past precedents of antitrust lawsuits, how do you see it playing out?

"Different courts can look at precisely the same facts and legal standards and can come to different conclusions. The best evidence is the NFL lockout. The trial courts ruled one way and the appellate courts ruled another. They're more likely to be successful in pressing the antitrust claim than the NFL, but I can't say that with any certainty."

Why's that?

"They seem to have a more judicious selection of the court they're in. California tends to be more liberal than in Minnesota. I'm sure David Boise and others have done their homework. I'm sure the NFL also did well, but [litagator] David Boise and other good lawyers learn from experience. They'll pick up on what arguments did or didn't work. The reliefs the NFL were asking for was an injunction and the reliefs the players are asking for here is monetary. It's easier to award monetary relief than an injunction. With an injunction, you have to craft everything to the facts. A court can easily measure the damages done in dollars and cents." 

How long do these suits last?

"Antitrust cases are notorious for being protracted. We would be further down the road into the season before there's an antitrust ruling. If that's what either parties is counting on to resolve this question, then that's the end of the season." 

What could cause hope for a season?

"The antitrust case will put pressure on the parties and their perceptions on whether or not they'll prevail. The owners could come back to the bargaining table with different terms.  But they foresaw this might be one strategy the players might pursue. Litigation can also harden parties' positions. Many high-powered lawsuits entail both parties simultaneously preparing for the litigation and seeing if they can settle."


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Photo: Lakers point guard Derek Fisher, left, president of the NBA players' union, speaks during a news conference Tuesday in front of union Executive Director Billy Hunter. A handful of players are pursuing antitrust lawsuits against the NBA. Credit: Patrick McDermott / Getty Images / Nov. 15, 2011)