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NBA players announced Monday they were rejecting the league’s latest offer and disclaiming interest in their union _ and, no longer governed by labor law, would sue under antitrust law, something they did Tuesday in California and Minnesota.

But it was the NBA that first went to federal court, filing a complaint Aug. 2 in New York, saying the players were threatening to dissolve their union. At the time, Stern told The Associated Press that players were “preparing to use the same strategy that the NFL _ who uses the same lawyer _ used.”

That would be Kessler, the top negotiator for both sports’ players, and he’s hardly the only familiar face. Cohen, for example, tried mediating between the NBA and basketball players, too, but couldn’t help them get a deal done, either.

Kessler recently was joined on the NBA players’ legal team by David Boies, who gained fame representing Al Gore during the recount fight in the disputed 2000 presidential election _ and, it so happens, was one of the lawyers who opposed Kessler only months ago while working for the NFL.

A lawyer who helped Boies defend the NFL against the antitrust claim filed by Brady and others, former U.S. Solicitor General Paul Clement, is now working for the NBA. And a firm that represented NFL owners during their lockout, and NHL owners during their lost-season lockout, is working for NBA owners, too.

Asked to compare the NFL and NBA situations, Clement said in a telephone interview: “If anything, it may be that in the NBA case, it’s even more transparent that the NBA players’ supposed disclaimer is only designed to achieve a more favorable result in collective bargaining. One thing I think that’s true in both cases is that no one thinks that the union is gone forever or that the collective bargaining is really over at the point of the disclaimer. Right now, with the NBA, that should be clear.”

Later, he added: “It’s not like a light switch. You can’t run from the bargaining table, flip the switch, and say, `All right, we’re not a union anymore.’”

The players say Stern issued a “take-it-or-leave-it” offer last week, leading to the end of talks; in private conversations, the league disputes the characterization of the most recent proposal as a hard ultimatum.

Here’s what the sides do agree about: They were pretty much ready to settle on a 50-50 split of revenues _ with the players giving up the 57-43 guarantee they had under the old CBA, and the owners giving up the idea of reducing the values of existing contracts _ but could not get on the same page when it came to how the contract system would work.

“All the pundits were saying (about the NFL) … `when they get close to losing the games and the season, there will be a deal.’ And lo and behold that happened,” NBPA head Billy Hunter told the AP. “Unlike our case. We’re trying, but the owners have decided all along not to negotiate.”

Clement’s response?

“To say, `Well, I really didn’t like the way the other side was behaving at the bargaining table and therefore I’m going to disclaim and file an antitrust lawsuit so I have better leverage to get a better-negotiated agreement at the end of the day,’ is really kind of a non sequitur and the law is pretty clear that kind of maneuver is just invalid.”

The last time NBA owners locked out players, Stern and Hunter barely beat an early January 1999 deadline to cancel the entire season, using an all-night bargaining session to salvage 50 of 82 games.

So it can be done.

But, as Tulane’s Feldman put it: “The clock is ticking.”

Story Continues →