It’s official. The 2011-2012 NBA season will not start on time, if at all. David Stern, commissioner of the NBA, announced on Monday that the first two weeks of the 2011-2012 season would be cancelled and that there could be more games cancelled if the NBA lockout continues. The NBA players’ union and team owners continue to disagree over the terms of a new collective bargaining agreement.

The main point of contention is the players’ share of BRI (basketball related income). Under the old agreement, players received 57% of BRI, a figure the owners seek to reduce to below 50%. In the most recent negotiations, the players have proposed 53% while the owners have proposed 47%. This is just one of the issues separating the parties. Owners and players disagree on almost everything, from the luxury tax on teams going over the salary cap, to salary cap exceptions for players that meet certain requirements. Thus, the two parties still remain very far from an agreement.

The cancellation of regular season games will result in major losses for the league and for players. Billy Hunter, the head of the players’ union, estimates that players will collectively lose $350 million each month the lockout continues from lost salaries. These grave financial consequences have led ESPN analyst Bill Simmons to propose (though partly in jest) that the players should create their own league to cut their losses. While the details of Simmons’ plan may seem like a fantasy, his article raises an interesting question. Could NBA players legally form their own league and play for new teams?

This issue seems settled on its face, as David Stern has previously said that the league would allow players to do what they wish in the event of a lockout; however, this has not really been put to the test. While NBA players have been successfully organizing and participating in well-attended charity tournaments, to create a successful new league would be an entirely different beast. This action would really challenge the NBA owners’ fortitude as well as Mr. Stern’s commitment to allowing the NBA players to do what they want during the lockout. It is likely that a well-planned and well-funded “renegade league” composed of a majority of NBA players would threaten the owners and the NBA.

If the commissioner decided to go back on his word, it is unclear whether NBA players would legally be allowed to proceed playing for new teams in a new league. According to Gabriel Feldman, a Tulane Law professor, in most industries the end of a collective bargaining agreement marks the end of an employment contract; however, in sports leagues, players’ contracts often last beyond the collective bargaining agreement. Therefore, the players who remain under contract may not actually be entitled to play for other teams. As per the terms of most NBA contracts, players may not risk injury by playing for other teams. However, this would obviously have to be balanced with the strong policy argument that the players should not be liable for breach of contract because the owners are responsible for the players’ inability to play basketball in the NBA.

While it is unlikely that the players will actually follow Simmons’ suggestion, it is not impossible to conceive how this could happen if the lockout persists much longer. If that point were reached, it would be interesting to see if the players would actually be allowed to play or if the owners would take legal action.

– Raymond Rufat

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