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Ham: Have The NBA Players Met The Real Enemy?

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By Eldon Ham

(WSCR) LeBron James might be a load to handle on the court, but in the NBA labor quagmire he’s got nothing on a swamp turtle named Pogo, a comic pages pundit with a labor lesson for LeBron and the NBA players. “We have met the enemy, and the enemy is us,” said Pogo, the resident sage of cartoonist Walt Kelly’s Okefenokee Swamp.

The players have few viable options—even fewer now that some of their colleagues are returning from overseas with horror tales of long bus rides, demanding coaches, playing time squabbles, mediocre accommodations, and paltry paydays, not to mention the occasional team that might have trouble making payroll at all. Meanwhile, the NBA has offered half the gross receipts of its basketball empire without risk, expense, or creative accounting, but with plenty of pampering. Yet now the players threaten to decertify as a union—for what, just to sue the NBA for antitrust? Why don’t they save the trouble and just hold their breath until they turn blue?

The NBA owners are not lily white, of course—well, mostly white, yes, but not so innocent. Most are wealthy fat cats who own NBA teams largely as toys, the ultimate in conspicuous consumption outdone only occasionally, like by billionaire Paul Allen and his 414-foot yacht—which he owns in addition to an NBA franchise, the Portland Trailblazers. But they are the owners, and although the players have been offered a lesser deal than last time, it’s still a blockbuster windfall for them.

If the players truly decertify, they will lose the labor law protections of being a union. This means they would then be colluding among themselves, a violation of antitrust laws that also makes them vulnerable to a plethora of counterclaims if the union were to sue the NBA invoking antitrust laws. Plus, even if they do sue the NBA, there is no guarantee they would win. They could shoot themselves in the foot and lose, too. A court might rule the decertification is merely a bargaining ploy, which apparently it is, and the players could lose. Moreover, there is also an antitrust exception called the “rule of reason.” If the NBA can justify its league operations as helping competition a smidge more than harming it, then the players could lose. And losing an antitrust claim is a genuine possibility in the enigmatic world of sports, where cooperation and competition are both necessary all the time. Moreover, a loss would leave the players without a union, a lawsuit, or a place to work, or show off, or strut. (One wonders if they will continue to pay their vast entourages if the labor stoppage goes a whole season—even legions on hangers-on might be out of a payday, too.)

The NBA is mired in a murky swamp, to be sure, but the owners have dug in. Period. Maybe there is more on the table than readily meets the eye, but the owners do have leverage while the players fail to grasp a simple axiom of American capitalism: if a rich fat-cat offers you 50% of the gross, take it before he changes his mind. So what if he gave you 57% last time? He made a mistake. If the league could take it back, it would, so don’t rock the boat. The players should consider themselves extra lucky then, not unlucky now.

Do the players know what a coup 50% of gross really is? “Gross” means the top line without any expenses deducted, a rare no-waffling panacea uncompromised by gray areas like “net” or “profit.”

So what if billionaire NBA owners control millionaire players? Who cares? Not only are most players still multi-millionaires, they are free to become owners or even billionaires themselves. But they would have to take a big risk and invest wisely. They can even own NBA teams after retirement, just as Michael Jordan chose to do, or they can become entrepreneurs like former Mav’s star Jamal Mashburn who owns 34 Outback steakhouses and 37 Papa John’s restaurants, or former Buck player Junior Bridgeman whose company owns over 160 Wendy’s franchises, or Magic Johnson who seems to own a little of everything including a chunk of the Lakers.

Some players can even become agents, like former Bull B. J. Armstrong. But all of them have to first succeed on the court and in the wallet. Haggling over the last two percent when the first 50% is already a windfall is not even as smart as, well, a swamp turtle.

There is an old Vaudeville story about a guy with a dubious two-dollar parking ticket. Instead of paying the two dollars, he spends years fighting the ticket and ends up in the gas chamber with his lawyer still pleading, “Just pay the two dollars.” Many athletes are much smarter than they get credit for, but right now too many are failing to grasp the difference between making and losing money. Pro athletes too often believe that if they make $10 million this year and just $8 million next, they are losing $2 million. No, they did not actually lose money, they made $18 million. But thanks to a very smart little guy in New York who looks a bit more like Pogo than a commissioner, the players are about to learn what losing is really like.

The union chief Billy Hunter seems to have no way out. If he caves in, he may lose his job even if that is the best long-term move for his players. If he digs in, the players will lose and so will he. It’s a lose-lose dilemma for Hunter, but if the players want to know who’s really at fault, it’s not the fat-cat owners, the savvy David Stern, or even the ineffective Hunter. It’s the guys in the mirror: they control their own destiny.

Sure, tweak the specific deal points on caps and free agency, just don’t prove Pogo right. But if the players don’t want to take their cue from a turtle, there’s always Kenny Rodgers, the entertainer who “knows when to hold ’em and when to fold ’em.” Either way, just pay the two dollars. It may tough for some players to swallow, but it sure will be lucrative. All the way to the bank.

Eldon L. Ham is the legal analyst for WSCR sports radio. He is author of The PlayMasters: An Unauthorized History of the NBA, and of the newly released Broadcasting Baseball (McFarland & Co.), a history of baseball broadcasting on radio and television. He has taught Sports, Law & Society at Chicago-Kent College of Law for 17 years where he won the Distinguished Service Award in 2010. He is also the three-time past chair of the Chicago Bar Association Law & Literature Committee and the author of four books on topics of sports history. He has been nationally quoted in such venues as the New York Times, USA Today, Business Week, ESPN.com, Chicago Sun-Times, Washington Post, and many more, and his articles have been published by the Harvard University Sports Law Journal, Street & Smith Sports Business Journal, Chicago Tribune, Baltimore Sun, Trial Magazine, Seton Hall Sports Law Journal, Marquette Sports Law Review, and others. Mr. Ham has practiced law in Chicago since 1976, and has represented scores of athletes, agents, and sports entrepreneurs.

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