COMPARING THE PLAYER DISCIPLINE PROVISIONS OF THE NFL AND NBA COLLECTIVE BARGAINING AGREEMENTS: Should there be a move toward uniform standards across Professional Sports?

In media remarks following Judge Berman’s decision rescinding Tom Brady’s 4-game suspension in the “Deflate”gate case, Brady’s attorney, Jeffrey Kessler advocated for the adoption of a new NFL personal conduct model. He compared what he viewed as the NFL’s fundamentally unfair process with the procedure adopted by Major League Baseball.

Although there are obvious differences between the major professional sports leagues, they have a commonality of interests in the need for fundamental fairness in all aspects of player-team contractual relationships. A review of the provisions governing arbitration in the player discipline context supports the argument that uniform language and procedures would have benefits for all parties. Concerns about due process and procedural guarantees exist whether the subject is the NFL, NBA, NHL or MLB.

Judge Berman’s decision was rooted in non-sports cases governing procedural due process in the arbitration context in addition to relying on the Ray Rice case as football-specific precedent. If the law applicable to ensuring due process is the same regardless of subject matter, should the language of the CBA’s arbitration provisions be uniform?

Mr. Kessler has pointed out that for over 80 years in the NFL the Commissioner has had the right to sit as an arbitrator. There was never a major controversy about this until 2012 when Commissioner Goodell began to press the bounds of his authority. There have been half a dozen disciplinary decisions overturned by courts since then; do we view these as the isolated results of one man’s overreaching that don’t signal the process itself is broken? Or the advent of a new antagonistic attitude toward player relations that warrants negotiating a change to the CBA?

Below are excerpts from the NFL and NBA Collective Bargaining Agreements. “Deflate”gate from start to finish took about 9 months. It may be surprising to some people that the rules governing the disciplinary response from the NFL Commissioner’s Office are found in only 3 pages of the 255-page CBA (excluding Appendices). The cases decided by the federal courts in the past 3 years now provide additional interpretative guidance.

NFL COLLECTIVE BARGAINING AGREEMENT

ARTICLE 46 COMMISSIONER DISCIPLINE (pp. 204-206)

Section 1. League Discipline: Notwithstanding anything stated in Article 43[1]:

(a) All disputes involving a fine or suspension imposed upon a player for conduct on the playing field (other than as described in Subsection (b) below) or involving action taken against a player by the Commissioner for conduct detrimental to the integrity of, or public confidence in, the game of professional football, will be processed exclusively as follows: the Commissioner will promptly send written notice of his action to the player, with a copy to the NFLPA. Within three (3) business days following such written notification, the player affected thereby, or the NFLPA with the player’s approval, may appeal in writing to the Commissioner.

(b) Fines or suspensions imposed upon players for unnecessary roughness or unsportsmanlike conduct on the playing field with respect to an opposing player or players shall be determined initially by a person appointed by the Commissioner after consultation concerning the person being appointed with the Executive Director of the NFLPA, as promptly as possible after the event(s) in question. Such person will send written notice of his action to the player, with a copy to the NFLPA. Within three (3) business days following such notification, the player, or the NFLPA with his approval, may appeal in writing to the Commissioner.

(c) The Commissioner (under Subsection (a)), or the person appointed by the Commissioner under Subsection (b), shall consult with the Executive Director of the NFLPA prior to issuing, for on-field conduct, any suspension or fine in excess of $50,000

(d) The schedule of fines for on-field conduct will be provided to the NFLPA prior to the start of training camp in each season covered under this Agreement. The 2011 schedule of fines, which has been provided to and accepted by the NFLPA, shall serve as the basis of discipline for the infractions identified on that schedule. The designated minimum fine amounts will increase by 5% for the 2012 League Year, and each League Year thereafter during the term of this Agreement. Where circumstances warrant, including, but not limited to, infractions that were flagrant and gratuitous, larger fines, suspension or other discipline may be imposed. On appeal, a player may assert, among other defenses, that any fine should be reduced because it is excessive when compared to the player’s expected earnings for the season in question. However, a fine may be reduced on this basis only if it exceeds 25 percent of one week of a player’s salary for a first offense, and 50 percent of one week of a player’s salary for a second offense. A player may also argue on appeal that the circumstances do not warrant his receiving a fine above the amount stated in the schedule of fines.

Section 2. Hearings:


(a) Hearing Officers. For appeals under Section 1(a) above, the Commissioner shall, after consultation with the Executive Director of the NFLPA, appoint one or more designees to serve as hearing officers. For appeals under Section 1(b) above, the parties shall, on an annual basis, jointly select two (2) or more designees to serve as hearing officers. The salary and reasonable expenses for the designees’ services shall be shared equally by the NFL and the NFLPA. Notwithstanding the foregoing, the Commissioner may serve as hearing officer in any appeal under Section 1(a) of this Article at his discretion. (emphasis added to original text)

(b) Representation. In any hearing provided for in this Article, a player may be accompanied by counsel of his choice. The NFLPA and NFL have the right to attend all hearings provided for in this Article and to present, by testimony or otherwise, any evidence relevant to the hearing.

(c) Telephone Hearings. Upon agreement of the parties, hearings under this Article may be conducted by telephone conference call or videoconference.

(d) Decision. As soon as practicable following the conclusion of the hearing, the hearing officer will render a written decision which will constitute full, final and complete disposition of the dispute and will be binding upon the player(s), Club(s) and the parties to this Agreement with respect to that dispute. Any discipline imposed pursuant to Section 1(b) may only be affirmed, reduced, or vacated by the hearing officer, and may not be increased.

(e) Costs. Unless the Commissioner determines otherwise, each party will bear the cost of its own witnesses, counsel and other expenses associated with the appeal.

(f) Additional Procedures for Appeals Under Section 1(a).

(i) Scheduling. Appeal hearings under Section 1(a) will be scheduled to commence within ten (10) days following receipt of the notice of appeal, except that hearings on suspensions issued during the playing season (defined for this Section as the first preseason game through the Super Bowl) will be scheduled for the second Tuesday following the receipt of the notice of appeal, with the intent that the appeal shall be heard no fewer than eight (8) days and no more than thirteen (13) days following the suspension, absent mutual agreement of the parties or a finding by the hearing officer of extenuating circumstances. If unavailability of counsel is the basis for a continuance, a new hearing shall be scheduled on or before the Tuesday following the original hearing date, without exception.

(ii) Discovery. In appeals under Section 1(a), the parties shall exchange copies of any exhibits upon which they intend to rely no later than three (3) calendar days prior to the hearing. Failure to timely provide any intended exhibit shall preclude its introduction at the hearing.

(iii) Record; Post-hearing Briefs. Unless the parties agree otherwise, all hearings conducted under Section 1(a) of this Article shall be transcribed. Post-hearing briefs will not be permitted absent agreement of the NFL and NFLPA or the request of the hearing officer. If permitted, such briefs shall be limited to five pages (single-spaced) and must be filed no later than three (3) business days following the conclusion of the hearing.

Section 3. Time Limits: Each of the time limits set forth in this Article may be ex- tended by mutual agreement of the parties or by the hearing officer upon appropriate motion.

Section 4. One Penalty: The Commissioner and a Club will not both discipline a player for the same act or conduct. The Commissioner’s disciplinary action will preclude or supersede disciplinary action by any Club for the same act or conduct.

Section 5. Fine Money:
(a) Fines will be deducted at the rate of no more than $2,500 from each pay period, if sufficient pay periods remain; or, if less than sufficient pay periods remain, the fine will be deducted in equal installments over the number of remaining pay periods. For the 2016–2020 League Years, the amount will increase from a rate of $2,500 to $3,500 from each pay period.

(b) For any fine imposed upon a player under Section 1(b), no amount of the fine will be withheld from the player’s pay pending the outcome of the appeal, except that if: (i) the fine is imposed on or after the thirteenth (13th) week of the regular season; (ii) the player or the NFLPA does not timely appeal; or (iii) the hearing on a fine imposed for conduct occurring through the thirteenth (13th) week of the regular season is delayed by the player or the NFLPA for any reason beyond the time provided for in Section 2(b) of this Article, the full amount of the fine shall be promptly collected.

(c) Unless otherwise agreed by the parties, fine money collected pursuant to this Article shall be allocated as follows: 50% to the Players Assistance Trust and 50% to charitable organizations jointly determined by the NFL and the NFLPA. In the absence of said joint determination, the NFL and the NFLPA shall each determine a charitable organization or organizations to which half of the second 50% shall be allocated.

NBA COLLECTIVE BARGAINING AGREEMENT

ARTICLE XXXI

Section 9– Special Procedures with Respect to Player Discipline (pp. 314-319)

(a) A dispute involving (i) a fine of $50,000 or less or a suspension of twelve (12) games or less (or both such fine and suspension) imposed upon a player by the Commissioner (or his designee) for (x) conduct on the playing court (as defined in Section 9(c)(i) below) or (y) for in-game conduct involving another player (as defined in Section 9(c)(ii) below), or (ii) action taken by the Commissioner (or his designee) (A) concerning the preservation of the integrity of, or the maintenance of public confidence in, the game of basketball and (B) resulting in a financial impact on the player of $50,000 or less, shall not give rise to a Grievance, shall not be subject to a hearing before, or resolution by, the Grievance Arbitrator, and shall not be determined by arbitration; but instead shall be processed exclusively as follows:

(1) Within twenty (20) days following written notification of the action taken by the Commissioner (or his designee), the Players Association (with the approval of the player involved) may appeal in writing to the Commissioner.

(2) Upon the written request of the Players Association, the Commissioner shall designate a time and place for hearing as soon as is reasonably practicable following his receipt of the notice of appeal.

(3) As soon as reasonably practicable, but not later than twenty (20) days, following the conclusion of such hearing, the Commissioner shall render a written decision, which decision shall, absent further proceedings pursuant to Section 9(a)(5) below, constitute full, final and complete disposition of the dispute, and shall be binding upon the player(s) and Team(s) involved and the parties to this Agreement.

(4) In the event such appeal involves a fine and/or suspension imposed by the Commissioner’s designee, the Commissioner, as a consequence of such appeal and hearing, shall have authority only to affirm or reduce such fine and/or suspension, and shall not have authority to increase such fine and/or suspension.

(5) If a dispute under Section 9(a)(i)(y) above is not resolved in a manner satisfactory to the player as a result of the procedures set forth in Section 9(a)(1)-(4) above, then the Players Association may (with the approval of such player) seek review of the financial impact of the Commissioner’s decision by filing a written request for such review with the Player Discipline Arbitrator (as provided for below) within ten (10) days following the issuance of such decision, and the following procedures shall apply:

(a) Following receipt of the written request for review, the Player Discipline Arbitrator shall schedule a meeting with the player, the Players Association, and the NBA (and such representatives as each may designate), shall review the relevant facts and circumstances, and shall issue a decision affirming or reducing the financial penalty imposed by the Commissioner. All such meetings shall be in person, shall be held in New York (alternating between the NBA and Players Association offices), and shall be conducted during the month of September following the conclusion of the Season in which the in-game conduct involving another player occurred.

(b) In reviewing the fine and/or suspension imposed upon the player by the Commissioner, the Player Discipline Arbitrator shall have authority only to affirm or reduce the financial penalty associated with such fine and/or suspension (including lost salary). The Player Discipline Arbitrator shall have no authority to review financial penalties automatically imposed as a result of technical fouls, ejections, or the violation of other similar NBA rules that result in the imposition of an automatic penalty (such as the “leaving the bench”rule). The review by the Player Discipline Arbitrator shall be de novo.[2]

(c) The decision of the Player Discipline Arbitrator shall constitute full, final and complete disposition of the dispute, and shall be binding upon the player(s) and

Team(s) involved and the parties to this Agreement. The Player Discipline Arbitrator shall make no public comment regarding the matter.

(d) The Player Discipline Arbitrator shall be selected by agreement between the NBA and the Players Association, shall be a person with experience in professional basketball (such as a former NBA coach, general manager, or player), and shall have expertise with respect to the rules applicable to and conduct of NBA games. In the event that the NBA and the Players Association cannot agree on the identity of the Player Discipline Arbitrator, each party shall simultaneously serve upon the other a list of the names of five (5) individuals meeting the criteria set forth in this Section 9(a)(5)(d) and shall alternate in striking names from such list until only one (1) such name remains; and the individual whose name remains on the list shall be selected as the Player Discipline Arbitrator. (A coin-flip or such other procedure as agreed upon by the NBA and the Players Association shall determine which of such parties shall exercise the first strike.)

(e) The Player Discipline Arbitrator shall serve for the duration of this Agreement; provided, however, that as of January 1, 2013, and as of each successive January 1, either of the parties to this Agreement may discharge the Player Discipline Arbitrator by serving written notice upon him and upon the other party to this Agreement during the period from November 1 through December 1 immediately preceding each such January 1.

(f) If the Player Discipline Arbitrator is discharged (or resigns), the parties shall select a successor Player Discipline Arbitrator in accordance with the procedures set forth in Section 9(a)(5)(d) above.

(b) A dispute involving (i) a fine of more than $50,000 and/or a suspension of more than twelve (12) games that is imposed upon a player by the Commissioner (or his designee) for conduct on the playing court, or

(ii) an action taken by the Commissioner (or his designee) that (A) concerns the preservation of the integrity of, or the maintenance of public confidence in, the game of basketball and (B) results in a financial impact on the player of more than $50,000, shall be processed and determined in the same manner as a Grievance under Sections 2-7 above; provided, however, that the Grievance Arbitrator shall apply an “arbitrary and capricious” standard of review.[3]

(c) (i) As used in this Agreement, “conduct on the playing court” shall mean conduct in any area within an arena (including, but not limited to, locker rooms, vomitories, loading docks, and other back-of-house and underground areas, including those used by television production and other vehicles), at, during or in connection with an NBA Exhibition, All-Star, Regular Season or Playoff game. (By way of example and not limitation, conduct “at” and/or “in connection with” an NBA game shall include conduct engaged in by a player within an arena from the time the player arrives at the arena for an NBA game until the time the player has left the premises of the arena following the conclusion of such game.) Conduct engaged in by a player outside an arena such as, for example, in a parking lot adjacent to an arena, shall not constitute “conduct on the playing court.”

(ii) As used in this Agreement, “in-game conduct involving another player” shall mean conduct occurring during the course of an NBA Exhibition, All-Star, Regular Season or Playoff Game that is exclusively between or among players (and not, for example, involving in any manner a referee, fan, or coach) and that takes place on or adjacent to the playing floor (including the area of the benches), and shall include, but not be limited to, fights, altercations, flagrant fouls, and other similar conduct.

(d)        In the event a matter filed as a Grievance in accordance with the provisions of this Article XXXI gives rise to issues involving the integrity of, or public confidence in, the game of basketball, and the financial impact on the player of the action being grieved is $50,000 or less, the Commissioner may, at any stage of its processing, order that the matter be withdrawn from such processing and thereafter be processed in accordance with the appeal procedure provided in Sections 9(a)(1)-(4) above.

The NFL and NBA CBA’s have certain similarities. Each sets $50,000 as the threshold under which the disciplined player is subject to the Commissioner’s imposition of a penalty without resort to arbitration.

Each carves out a special procedure for dealing with actions taken against other players. For example, in the NFL agreement in instances of unsportsmanlike conduct on the field toward another player, the Commissioner may impose a fine and/or suspension but the appeal is heard by two hearing officers, one selected by each party.

In the NBA, for “in-game conduct involving another player” where a fine of $50,000 or less and/or a suspension of 12 games or less is imposed, the Player’s Association can appeal the Commissioner’s punishment to the Player Discipline Arbitrator. The parties are required under the Agreement to meet with the Player Discipline Arbitrator in person in New York City in September following the season in which the discipline was imposed.

However, for discipline imposed by the NBA Commissioner for conduct “on the court” or necessary for the preservation of the integrity of, or the maintenance of public confidence in the game of basketball, the procedure varies and depends upon whether (1) the fine is over or under $50,000 and/or the suspension is less or more than 12 games[4]. If the penalty assessed is under $50,000 and/or a suspension of 12 games or less, it is not grievable. That is, the player is not entitled to arbitration with a Grievance Arbitrator. The Players’ Association can take an appeal in writing to the Commissioner who conducts a hearing and issues a decision.

If the penalty exceeds the $50,000 fine or a 12-game suspension, the process is different in that it calls for an appeal to a Grievance Arbitrator.  In the more serious category of cases, there is no ability for the NBA Commissioner to appoint himself in his discretion to review the reasonableness of the penalty that he or his designee imposed. This is in stark contrast to the NFL CBA which, while using a similar $50,000 threshold, only requires that where a financial penalty in excess of that amount is to be imposed, the NFL Commissioner first has to consult with the Executive Director of the NFL Players Association.

The NFL Commissioner can, without restriction to cases involving penalties under or over $50,000, serve as the arbitrator who hears the appeal where the incident involves on-the-field conduct or is detrimental to or undermines public confidence in the game. The NBA CBA ensures a more independent process where the alleged violation is severe; in less serious cases with caps on the penalty that the Commissioner can impose, his office is permitted to act as arbitrator for purposes of an appeal.

“On the playing court” discipline was the subject of a lawsuit filed by the NBA seeking declaratory judgment, or a court determination, interpreting the player discipline provision of the CBA ten years ago.

In National Basketball Association v. National Basketball Players Association, Ron Artest, Stephen Jackson, Anthony Johnson & Jermaine O’Neal, 2005 WL 22869 (SDNY 2005) (unreported), the main issue was the Commissioner’s authority to impose a suspension on players for misconduct during a game. On November 19, 2004, the Indiana Pacers and Detroit Pistons played in Detroit. With less than a minute to go in the game, Ron Artest of the Pacers committed a flagrant foul against Ben Wallace which resulted in a shoving match and other players had to separate them. While the referees were trying to sort out the penalties, a fan threw a beverage at Artest and he retaliated by going after the fan in the stands. Stephen Jackson followed behind him and also got involved in the fight. Anthony Johnson left his team bench and confronted a fan. Jermaine O’Neal was stopped by an usher as he tried to run into the seats. A fan got down onto the playing floor and O’Neal hit him.

The day after the game, then-Commissioner David Stern suspended all the players indefinitely until the incident could be investigated. The next day he announced that Artest would be suspended for the entire season; Jackson for 30 games; O’Neal for 25 games; and Johnson for 5 games.[5]

Ronald Klempner appeared for the NBPA and Richard Buchanan was General Counsel to the NBA. Klempner was Deputy General Counsel to the NBPA until Commissioner Michele Roberts replaced him last year with Gary Kohlman and made Klempner senior counsel for collective bargaining.

Each of the players received a letter from the Senior Vice President of NBA Operations, Stu Jackson, informing them of the suspensions. According to the letter from Jackson, the suspensions were based on Section 35(d) of the NBA Constitution. [6] The players’ union took an appeal under the CBA to the Grievance Arbitrator pursuant to Article XXXI. Under that section, the NBPA argued it was entitled to an arbitration hearing because the discipline imposed by the Commissioner was not authorized by the CBA. The NBA objected to having the Grievance Arbitrator hearing the dispute, argued that he had no jurisdiction and indicated it would refuse to participate in any proceedings. The NBA took the position that the Commissioner had the exclusive authority to hear the appeal.

On December 3, 2004, the Grievance Arbitrator, Roger P. Kaplan, Esq,[7] issued a decision In the matter of Arbitration Between the National Basketball Players Association and the National Basketball Association, holding that: “Notwithstanding the provisions of Article XXXI, Section 5(b), I find that the broad arbitration clauses contained in Article XXXI, Section 1 of the CBA and paragraph 17 of the Uniform Player Contract, warrant a finding that I have jurisdiction to determine whether the arbitrability issue raised by the NBA is meritorious.”

The NBA filed a lawsuit the same day in federal court for a legal declaration of the rights of the parties under the CBA. While that was pending, the Grievance Arbitrator conducted an arbitration hearing on December 9, 2004 and issued his arbitration award on December 21, 2004. He found that he had authority to determine whether the dispute could be arbitrated. Having that authority he decided, yes, the case was subject to arbitration; the reason the Commissioner did not have sole authority is because the incident did not take place “on the playing court” as that term was used in Article XXXI, Section 8 of the CBA; and that the Commissioner had just cause to suspend Artest, Jackson and Johnson but O’Neal’s suspension should be reduced to 15 games.

O’Neal had already sat out 15 games so the NBPA moved for emergency relief to force the NBA to comply with the Grievance Arbitrator’s ruling. The federal court ordered that the additional 10 game suspension imposed by the Commissioner should not be enforced at least until the Court could review the underlying issues.

The Court first examined the issue of whether the disciplinary decision by the League could be arbitrated. The NBA argued that the CBA contained both a broadly worded arbitration clause in which all disputes would be arbitrated and a conflicting specific clause assigning certain decisions to the exclusive purview of the Commissioner. Id citing Katz v. Feinberg, 290 F.3d 95 (2d Cir. 2002) (when the language regarding the parties’ intentions to arbitrate are ambiguous, the district court, not the arbitrator, must resolve the issue). The Court’s opinion was that there was no ambiguity and that the NBA Constitution[8] and CBA both reflected the parties’ intention to arbitrate disciplinary disputes.

Next, the Court looked at the NBA’s argument that the Grievance Arbitrator lacked jurisdiction over an issue of substantive, as opposed to procedural, arbitrability. Under the federal Labor Management Relations Act, Congress assigned the Courts the duty of determining whether one side or another broke its contractual promise to arbitrate. The Court found that the issue before the Grievance Arbitrator was not whether the parties intended to arbitrate (see discussion above) but through which process the appeal must be sought (to the Commissioner or to the Grievance Arbitrator) and, therefore, was procedural not substantive.

The Court reasoned as follows:

  • Section 35(h) of the NBA constitution (“Misconduct”) requires any appeal of decisions of the Commissioner must be resolved by the Grievance Arbitrator under the CBA.
  • Article XXXI of the CBA sets forth the general grievance and arbitration procedures that must be followed
  • Article XXXI, Section 8 (“Special Procedure With Respect to Player Discipline) requires any fine or suspension imposed by the Commissioner for a player’s “conduct on the playing court” OR to preserve public confidence in the game resulting in a financial impact to the player of $25,000 or less, is processed exclusively under the authority of the Commissioner to hear any appeal.

Since the financial impact to the players in this case was more than $25,000, the only question was whether the fight should be considered “conduct on the playing court”. If it was, then the Commissioner had exclusive authority. If not, then the Grievance Arbitrator should hear the appeal.

The NBA argued “conduct on the playing court” should mean broadly any “misconduct at or during a game”. The Players’ Union argued it should be narrowly interpreted to mean only “conduct which occurs as part of the playing of the game (such as flagrant fouls, fights between players, confronting referees, etc). The Court looked at the CBA, Player Conduct Memos[9] sent to the players and the history of past grievances. It determined that the meaning of “conduct on the playing court” fell somewhere between the competing definitions offered by the parties.

The Court launched into an extensive review of the use of the competing phrases “on the court” and “off the court” as they were used in the CBA, Uniform Player Contract, Annual Player Conduct Memos and past grievance decisions[10]. The Court reviewed all of the instances of past player discipline for misconduct which was deemed not subject to appeal. It found in every case, unlike the factual circumstance involving Jermaine O’Neal, that the conduct fell under the definition of “on the court” misconduct not subject to appeal by arbitration: “Fighting with or striking a fan has never been characterized as conduct on the playing court. This is understandable since it has absolutely no place in the play of the game of professional basketball…This dispute is not about the Commissioner’s authority to take strong and decisive action to discipline players who strike fans. That authority is unquestionable. However, the NBA’s Player Conduct Memo supports [the Grievance Arbitrator’s] finding that Jermaine O’Neal’s actions in shoving an arena employee and punching a spectator, falls in the category of violence off the court as defined by the NBA’s Player Conduct Memo.

The Court was not asked by the NBA to determine the merits of the Grievance Arbitrator’s decision to reduce Jermaine O’Neal’s suspension to 15 games so it simply denied the NBA’s motion to vacate the Grievance Arbitrator’s award and granted the Players’ Union motion to confirm it. As to the suspensions of the other players the Court, in footnote 10 to its decision wrote:

“Given the unique facts of this case, this decision is limited to the application by defendant O’Neal to confirm the arbitration award as to him. Defendants Johnson, Jackson, and Artest have not moved to confirm the arbitration award as to them. The record as to them, therefore, will not be confirmed and has no force and effect. The arbitration award relating to defendants Artest, Jackson and Johnson does not change the period of their suspensions…”

In other words, because the Grievance Arbitrator upheld the Commissioner’s suspensions of those players and neither the NBA (because it was arguing the Grievance Arbitrator lacked authority over the issue) nor the NBPA (because the Grievance Arbitrator’s award did not reduce the suspensions) moved to confirm the award, the issue was not before the Court to decide.

***********************************************

The NBA arbitration rules for player discipline are more detailed and multi-dimensional than the NFL counterpart. An argument can be made that a “serious” penalty in the NBA, one which can be appealed to a Grievance Arbitrator, constitutes 15.8% (at least 13/82 games) of the season. If a suspension of 13 games or more is imposed by the Commissioner, he does not have authority to hear the appeal.

The equivalent percentage of game suspensions in football is between 2 and 3 games (2/16th of the season or 12.5% or 3/16 games or 18.75%). Had the same procedure used in the NBA CBA been used in the case of the NFL “Deflate”gate case, Tom Brady would have been entitled to have a Grievance Arbitrator review the penalties imposed by the Commissioner’s Office. The parties still may have wound up in Court but at least there would have been procedural safeguards in place to ensure less conflict-ridden decision-making.

ENDNOTES:

[1] Article 43 governs non-injury grievance procedures

[2] Under this standard, appellate courts consider legal issues anew, and decide how to interpret and apply the law. Although a trial court’s reasoning on a legal issue may provide a point of comparison for an appellate court, the trial court is not given any deference. The appellate court can, and frequently does, decide the legal issue differently from the trial court.

[3] Arbitrary and capricious is a legal standard by which an appellate court determines whether a previous ruling is invalid because it was made on unreasonable grounds or without any proper consideration of circumstances.

[4] The NBA season is 82 games long. The threshold for determining the applicable arbitration procedure is a suspension lasting under or over approximately 15% of the season.

[5] Five other players were also suspended for their involvement in the incident

[6] NBA Constitution Section 35(d): “If in the opinion of the Commissioner any other act or conduct of a Player at or during an Exhibition, Regular Season, or Playoff game has been prejudicial to or against the best interests of the Association or the game of basketball, the Commissioner shall impose upon such Player a fine not exceeding $35,000 or may order for a time the suspension of any such Player from any connection or duties with Exhibition, Regular Season, or Playoff games, or he may order both such fine and suspension.”

[7] Kaplan graduated from George Washington University Law School in 1968. Kaplan, whose office is in Alexandria Virginia, has been a sports arbitrator since 1989. He has been the grievance arbitrator for the NBA and NBA Players Association and has decided many cases involving Major League Baseball and the NFL Players Association.

[8] NBA Constitution Section 35(h) (attached as an addendum to the Uniform Player Contract): “[e]xcept for a penalty imposed under Paragraph (g) of this Article 35 [relating to players gambling on the outcome of any game]…[a]ny such challenge by a player [to the decisions and acts of the Commissioner pursuant to Article 35] shall be resolved by the Grievance Arbitrator in accordance with the grievance and arbitration procedures of the collective bargaining agreement.”

[9] Every year since 1997 the NBA had sent the players an annual player conduct memo summarizing their duties “on and off the playing court”

[10] The NBA cited the following examples: Patrick Ewing left the bench in connection with an altercation during a game; Clarence Weatherspoon fought with Kevin Willis during a game; Tim Hardaway engaged in improper conduct with a referee and refused to immediately leave the court when ejected; Reggie Miller fought with Kobe Bryant after a game; Ron Mercer fought with another player in the locker room; Gary Trent went into the visiting lockerroom and fought with a player; PJ Brown fought Charlie Ward; Vernon Maxwell entered the spectator area during a game; JoJo English fought with Derek Harper during a game; Shaquille O’Neal used an obscenity during a live tv interview.

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