Yes, NBA Players Should Make More Money: How the Nlrb Can Change the Future of Collective Bargaining Agreements in Professional Sports

As lockouts in professional sports have become increasingly common in recent years, the means to resolve these lockouts have also become more important. The 2011 National Basketball Association (NBA) lockout was one of the most significant in the league's history, lasting 161 days and resulting in the cancellation of twenty-six regular season games. In addition to its length, the 2011 NBA lockout was significant because the NBA players and the National Basketball Players' Association contested the legality of the NBA owners' lockout through an approach grounded in labor law; not through antitrust law as the National Football League players did earlier in 2011.The NBA players and the players' association filed a complaint with the National Labor Relations Board (NLRB), but the players and the league came to terms on a new collective bargaining agreement before the NLRB had a chance to make a decision. What that NLRB decision would have been and the impact it would have had has not been analyzed until this Comment. This Comment argues that if the NBA players and the players' association had been able to hold out for an NLRB decision, the NLRB would have ruled in favor of the players, given the players more bargaining power during negotiations, and encouraged future players' associations to challenge collective bargaining agreements through a labor law route to the NLRB instead of an antitrust law route through federal court.INTRODUCTIONOn January 20, 1998, the National Basketball Players Association (NBPA) and the National Basketball Association (NBA or "the league") finalized a collective bargaining agreement (CBA) that would be enforced until 2011.1 The parties were only able to reach this agreement after the NBA instituted a lockout, cancelled thirty- two games of the 1998-1999 season, and NBA commissioner, David Stern, threatened to cancel the entire season and hire replacement players.2 In the spring of 2010, the NBPA and the NBA started negotiations in an attempt to ensure that the 2011-2012 season would not be cancelled due to the end of the 1999 CBA.3 Negotiations broke down several times and, with fundamental differences on key issues unresolved, the NBA owners officially locked out the players on July 1, 2011.4 The 2011 NBA lockout lasted 161 days and forced the cancellation of twenty-six regular season games.5 Eventually, on December 8, the NBA and NBPA ratified a new CBA that forced the players to give up $270 million-an average of $610,000 per player-to team owners.6Prior to the start of the 2011 NBA lockout, the NBPA filed a complaint with the National Labor Relations Board (NLRB).7 The NBPA accused the league of negotiating in bad faith by failing to provide critical financial data, engaging in surface bargaining,8 and repeatedly threatening to lockout the players.9 Because the NBPA and the NBA came to a tentative agreement on terms for a new CBA and ended their labor dispute, the NLRB never had a chance to make a ruling on the NBPA's claims against the NBA.10 Accordingly, the question remains: how would the NLRB have ruled on the issue of whether the league was refusing to bargain in good faith?11 This is an important question to examine because a favorable result for the NBPA would provide concrete proof that the labor law route through the NLRB is more beneficial for players' associations than the antitrust law route through federal court, which the National Football League (NFL) players took in a previous suit against the NFL.In contrast to the NLRB intervention in the NBA lockout in 2011, the NFL lockout in 2011 led to litigation in federal court. In Brady v. NFL,12 the U.S. Court of Appeals for the Eighth Circuit held that the NFL lockout was allowed to continue despite the players' challenge to the lockout's legality.13 In that case, the National Football League Players Association (NFLPA) decertified as a union and took a litigation approach grounded in antitrust law.14 The Eighth Circuit ruling prevented players from entering team facilities; receiving any compensation or benefits; and from performing any employment duties, including playing, practicing, or working out. …