History likes to repeat itself. Just a few months after NFL players tried to decertify-and-antitrust their way to a better labour deal, their NBA brethren are now running the same play. The big difference this time is that the NBA has already cancelled games and yesterday’s decertification announcement effectively kills the 2011–2012 season.
Another difference is that antitrust guru David Boies — one of my Hall of Famers — has switched sides. Boies previously argued for the NFL owners; now he’ll spearhead the NBA players’ antitrust litigation along with Jeffrey Kessler, who also worked for the NFL players.
The antitrust lawyers always do well in these disputes, and that’s a testament to how much the “labour negotiations” process reeks of government intervention. While the storyline is always presented as “billionaires vs. millionaires,” with many media folks livid that the parties can’t come to a timely agreement, we don’t see any blame assigned to the state that created the conditions for these disputes. It’s come to the point where we think of work stoppages in sports like business cycles — something that’s just inevitable with no identifiable cause (beyond “greed,” of course).
The idea of a “collective bargaining agreement” itself is a state invention. Individual players already have contracts with NBA clubs. Antitrust rules forbid the owners from collectively setting prices or restricting player movement. Yet the government exempts the owners from these rules so long as they negotiate with a government-recognised labour union that holds a monopsony over NBA players.
The union itself can override the individual preferences of players, thanks to its government powers. Indeed, the leadership of the NBA players’ union has steadfastly refused to allow its membership to even vote on the league’s proposals — and it was the leadership that voted to decertify and initiate antitrust proceedings. The individual player’s economic rights are completely subsumed to the state-imposed labour system.
As for the lockout, that is nothing more than an ongoing breach of existing individual player contracts by the owners, and as we saw in the NFL case, the courts will refuse to remedy the breach so long as there is a government-sanctioned labour dispute.
In a free market, the owners could certainly band together and boycott the players until they agreed to accept certain rules or working conditions. But the owners could not refuse to honour existing contracts. Nor could they insist on dealing with a single monopsony union. (Remember, the NBA and NFL want unions, as it makes it easier to enforce their bureaucratic mandates.) And neither side could resort to litigation over the other’s refusal to enter into prospective agreements.
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