11/29/2011 10:48 am ET Updated Jan 29, 2012

Recertifying the NBAPA: A "Must Do" in the Quest to Begin the NBA Season

To the delight of NBA fans everywhere, the 2011 NBA lockout is over. At 3:30 AM on Saturday
November 26th, David Stern, Adam Silver, Billy Hunter and select NBA player representatives sat at a
long wooden table and announced that a compromise had finally been reached -- an abbreviated 66-game
season would start in about a month. No, there will not be a "nuclear winter" which David Stern
threatened the NBA players with, and yes, NBA fans will be treated to what will surely be an eventful slate
of Christmas Day games.

While the season schedule is almost ready to go, and blogs all across the internet are already pegging
the "winners and losers" of the lockout, there is still a lot of work to do behind the scenes.

One of the biggest roadblocks to starting NBA training camps and getting the season underway is the
ratification of a new collective bargaining agreement, or "CBA." The impediment to this "new CBA puzzle"
is to recertify the Union. Per federal law, recertifying the National Basketball Players Association, also
known as the NBAPA, falls at the whim of the National Labor Relations Board, also known as the NLRB.
The NLRB is a United States government agency that was created under the National Labor Relations
Act of 1935. In its role, the NLRB is responsible for "protecting the rights of private sector employees."

Why did the NBAPA decertify the Union in the first place?

The reason that the NBAPA decertified in the first place is simple, leverage. It seemed that the NBA
owners had the upper hand in CBA negotiations and were attempting to strong arm the players into a
deal that was more favorable to the league's elite owners. To gain some bargaining power, the players
decided to use the tactic of decertification, which was previously employed by the NFL Players
Association only a few months prior. Ultimately, the decertification process would allow the players to
form what is known as a "trade organization," giving the players the ability to sue under antitrust law,
attempting to bring an end to the lockout via court system.

Why recertify the Union?

The Union must reform in order to negotiate and complete the new collective bargaining
agreement. A collective bargaining agreement requires give and take bargaining, also known as a "quid pro quo" in labor circles, between an employer and a union/players' association. Under federal labor law,
a union acts as the exclusive representative for the players for purposes of collective bargaining. Once a
union is in place, the union is then empowered to negotiate -- on behalf of all players -- mandatory and
permissive subjects of bargaining such as "rates of pay, wages, hours of employment and other
conditions of employment." Therefore, a collective bargaining agreement cannot exist without the quid pro
quo bargaining mentioned above. While the sides may have a handshake deal on the "big issues" such
as BRI, revenue sharing, and other components, the new collective bargaining agreement cannot be put
into place before the Union reforms.

Why do the owners want the players to reform their union?

The simple answer: Because the owners do not want to be subject to any antitrust litigation. Under the doctrine known as the "non-statutory labor exemption," the NBA and its owners are exempt from any inquiries into potential anti-competitive procedures. Without the "exemption," rules regarding the salary cap and the annual NBA draft could face attack in a court of law. The exemption immunizes the complete terms of a collective bargaining agreement from attack under antitrust law. Essentially, players are required to choose labor law (and collective bargaining) over antitrust law (and individual bargaining and antitrust litigation).

Of course, the lack of a collective bargaining agreement does not completely bar the NBA from operating. The NBA could operate without a collective bargaining agreement, "unilaterally" instituting rules on the salary cap, NBA draft, and free agency. That, however, would subject those terms to antitrust litigation.

The non-statutory labor exemption has been inferred by federal labor law courts to protect the collective bargaining process, even when a collective bargaining agreement results in certain restraints on competition.

Without antitrust immunity for NBA rules, individual NBA players could file antitrust litigation, at any time, challenging the rules implemented by the league, arguing that they are anti-competitive and violative of the Sherman Antitrust Act -- a path of intense litigation that the NBA does not want to even step near.

What is the process to recertify the NBAPA?

As part of its core function, the NLRB is responsible for holding elections which permit employees to vote on whether they wish to be represented by a particular labor union. Since the NBAPA decertified, the NBA players need to now vote on whether they wish to have the NBAPA represent them once again.

Under the National Labor Relations Act, a union, in this case the NBAPA, can become the exclusive bargaining representative of a group of employees in two ways:

(1) through an NLRB-conducted secret ballot election; or

(2) by voluntary recognition -- where the union presents evidence (typically signed cards indicating that the employees "authorize" the union to be their exclusive bargaining representative) that a majority of the employees want the union to be their exclusive bargaining representative. The cards usually are examined by a mutually-acceptable third party and, if the third party is satisfied, the employer the voluntarily recognizes the union as the exclusive bargaining representative without an election.

In this case, it is likely the NBA players will ask the NBA owners for voluntary recognition. The NBA owners will be foolish not to oblige because the owners have a significant vested interest in getting the union reformed as quickly as possible, so that the CBA can be ratified and the season can begin on Christmas Day.

If for some reason the owners don't accept this course, the players can recertify by petitioning the National Labor Relations Board, following an alternate and slightly more complicated route. However, there isn't any clear reason at this point in time why the NBA
owners would not accept voluntary recognition. There is a tremendous amount of money to be had now that both sides have come to an agreement on the "major" points.

Why might the NBAPA want to be careful with its recertification process?

Recertifying the union may take a bit of time for a variety of reasons. One overriding reason is that the NBAPA should want to protect itself from any allegations that their attempt to decertify only a few weeks ago was a sham. There could be some concern among NBAPA counsel that recertifying too quickly could potentially be used against the NBAPA the next time both sides find themselves in a similar situation during collective bargaining negotiations. In a somewhat parallel situation, during the NFL players' attempt at recertification, NFLPA Executive Director DeMaurice Smith stated: "I certainly remember comments from some of the owners about how we may not even be a real union," Smith said. "Well, guess what? The decision to decertify was important because at the time we were a real union. And the decision for our players, as men, to come back as a union is going to be an equally serious and sober one that they have to make." Smith's careful choice of words will most likely be echoed by NBAPA head
honcho Billy Hunter, ensuring the legitimacy of the NBA players union is very important for all future labor relations with the league's owners.


Matthew Weinberger is a sports business enthusiast who is passionate about the intersection between the law and the sports business industry. He regularly writes on timely topics relating to sports business, law, entertainment, media, and technology.