An NBA lawyer urged a US federal judge Wednesday to help end a stalemate with the NBA players union by agreeing to consider the legality of its lockout. The league locked out its players on July 1, and NBA Commissioner David Stern has already canceled all November games. The NBA, which filed suit the players union in August, wants US District Judge Paul Gardephe to rule that the NBA's lockout would not be considered an antitrust violation if the players dissolve their union. In oral arguments in New York, NBA attorney Jeffrey Mishkin said the NBA Player's Association is using the possibility of an antitrust fight like “a loaded gun” in order to gain an upper hand at the negotiating table. “They prefer the uncertainty,” Mishkin said of the union's effort to get the lawsuit tossed out. “It's like taking a loaded gun and laying it on the table.” Gardephe, however, expressed reluctance to wade into the NBA's labor mess. He brushed aside Mishkin's argument, saying that posturing is part of negotiations. “If they've put the gun on the table, it's not clear there are any bullets in it,” the judge said. “The courts discount threats of litigation in the context of collective bargaining.” Progress has stalled since talks broke off last Friday over the revenue split. The union's executive committee plans to meet Thursday in New York, a person with knowledge of the plans said. The person requested anonymity because the plans have not been made public. Owners are seeking significant changes to the league's salary structure, claiming $300 million in losses last season and hundreds of millions more in each year of the previous collective bargaining agreement, which was ratified in 2005. Players have acknowledged the losses but dispute the size, and they've balked at the league's push for a hard salary cap and reduction in salaries and maximum contract lengths. Union lawyer Jeffrey Kessler said in court that the NBA case should be tossed out because the league was trying to get the court involved on the mere possibility there would be an antitrust fight. “They have no case,” he said. “They're seeking to do something unprecedented, inappropriate.” Mishkin insisted the league had to act to stop threats that were hampering negotiations. He said the union was prepared to dissolve itself, a necessary legal step before individual players could bring antitrust actions against the league in federal court. Gardephe did not immediately rule. He questioned Mishkin at length, saying at one point that the NBA lawsuit contained a “fair amount of speculation.” The reality of the lockout finally hit home Tuesday when the 2011-2012 curtain-raiser between the champion Dallas Mavericks and Chicago Bulls failed to go up. But if there was disappointment among NBA fan base they chose not to show it.There were no noisy protests, no vigils or pleas for players to return. Just dismissive silence and dark arenas.
