The NBA Lockout: the Players are Waiting for a Buzzer Beater
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The last few days of the negotiations between the NBA players and owners have not gone particularly well. Early signs of some modest progress have been lost by differing positions by both sides on dividning the basketball revenue. Since then the negotiations have slowed and more games will surely be cancelled.
Now it seems that the players' union is hoping that the National Labor Relations Board ("NLRB") comes to the rescue. The union has filed a charge against the owners for alleged bad faith bargaining and an improper use of a lockout. The players want the NLRB to end the lockout as an unfair labor practice by the owners. The problem is there is absolutely no prohibition against the use of a lockout as a tool by an employer in a labor dispute.
There also seems to be consensus among legal commentators that bad faith really means "bad faith." The owners have not cut off all talks and they are certainly not naive enough to strike an "unbending posiition" with no room to give. In sum, as long as the owners keep meeting and talking with the players (even if it doens't go anywhere), they have little risk of being in bad faith.
The risk for both sides remains the same: a lost season with little public outcry.
My name is Christopher Fusco. I am the managing partner of Callahan & Fusco, LLC with offices in New York, New Jersey, and Pennsylvania.