Most fans of professional basketball were probably delighted to learn of the recent agreement between the NBA owners and their players which will make possible a 66-game regular season beginning on Christmas Day.
However, for fans of sports law (like myself), the resolution was disappointing. Had the players’ antitrust suit gone to trial, followed by the inevitable sequence of appeals, we might finally have received conclusive answers to some of the most perplexing questions in the field of sports law.
For example, we might have learned if the “decertify/recertify the union for negotiation leverage” strategy is really a permissible alternative under U. S. labor law, and we might have found out what sorts of owner-imposed restraints could survive “rule of reason” scrutiny under the antitrust laws. Alas, we will simply continue to argue about the proper answers to such questions until the next major disruption of the professional sports labor-management front raises a new possibility of judicial resolution.
If I had been running the NBA, I would have responded to the NBAPA’s decertification and subsequent antitrust lawsuit by declaring the lockout over and immediately opening the training camps to the now non-unionized players. I would have then have imposed mandatory drug testing rules and an absolutely rigid, exception-free salary cap.
The cap would apply to all forms of player compensation including the costs of signing new players out of the amateur ranks. I am confident that both a reasonable drug testing regime and a fixed ceiling on salaries would be upheld under the antitrust laws as reasonable restraints on trade necessary to maintain competitive balance.
I would not have reinstituted the player draft or any restrictions on the signing of free agents — those matters would be adequately dealt with by the salary cap and do little to assure competitive balance.
Of course, for this to work, the NBA owners would all have to be on the same page, which is unlikely. Moreover, such an approach would almost certainly have led to a reformation of the union which would likely then go on strike. But at that point the sports law carousel would be turning again.