Possible Arbitration on Bird Rights after waiver claims

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Re: Possible Arbitration on Bird Rights after waiver claims 

Post#61 » by Nanogeek » Sun Jun 24, 2012 3:13 am

Actually, I believe the procedure is an Appeals Panel would hear the matter rather than any court. The league and the NBAPA have to agree to a panel or if they cannot agree then the Center of Public Resources is utilized.
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Re: Possible Arbitration on Bird Rights after waiver claims 

Post#62 » by DBoys » Sun Jun 24, 2012 4:16 am

Nanogeek wrote: I understand your point. But a intern from the local law school can tell us what the agreement's plain language says. This obviously is a not a matter of what the plain language says.


Well yeah. That's my point. The CBA says one thing, and when an arbitrator overrides what any intern can divine, it's not a ruling based on the CBA.

Nanogeek wrote:Again - we will see what the courts have to say


Clearly that's where it's going. But it's regrettable that by the time the courts rule, the horse will sorta be out of the barn already with no way to reverse the situation. And the vagaries of an arbitrator will have changed the rules mid-stream for those deciding (for example) what to bid on Billups' waiver, or on whether to make waiver claims on players like Lin and Novak in the final year of their contracts.

EDIT - Whoops I spoke too soon ...see next post for better info.
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Re: Possible Arbitration on Bird Rights after waiver claims 

Post#63 » by DBoys » Sun Jun 24, 2012 4:19 am

Nanogeek wrote:Actually, I believe the procedure is an Appeals Panel would hear the matter rather than any court. The league and the NBAPA have to agree to a panel or if they cannot agree then the Center of Public Resources is utilized.


I hope you're right, and if so, that's encouraging ...as it offers the theoretical possibility of an expedited resolution of an appeal. With free agency signings still almost 3 weeks away, there's time (perhaps) to appeal and argue, and get a decision before anything permanent has been put into place contractually that would make a reversal problematic.

EDIT - You are correct, and I found this interesting piece in the CBA

"Any party seeking to appeal (in whole or in part) an award of the System Arbitrator must serve on the other party and file with the System Arbitrator a notice of appeal, within ten (10) days of the date of the award appealed from. The timely service and filing of a notice of appeal shall automatically stay the award of the System Arbitrator pending resolution by the Appeals Panel."

In other words, until the appeal is heard and a decision rendered, nothing has changed despite the arbitrator's ruling.
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Re: Possible Arbitration on Bird Rights after waiver claims 

Post#64 » by d-train » Sun Jun 24, 2012 5:56 pm

There is an easy resolution to this predicament if both parties innocently find themselves in a situation that wasn't anticipated when the CBA was negotiated. The middle ground is to allow players claimed off waivers an option of either allowing their contract to be assigned and surrendering their bird rights or becoming a free agent.

I suspect there is no party in the agreement that innocently didn't consider this problem when the CBA was negotiated. I suspect this logical compromise represents a problem for both parties and the CBA doesn't address the bird rights of players claimed off waivers because the parties don't agree.
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Re: Possible Arbitration on Bird Rights after waiver claims 

Post#65 » by DBoys » Sun Jun 24, 2012 7:14 pm

d-train wrote:... the CBA doesn't address the bird rights of players claimed off waivers because ....


Since the CBA does define who qualifies for Bird rights, this statement is not true. Per the CBA definition, waiver claimees do not meet the qualification criteria.
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Re: Possible Arbitration on Bird Rights after waiver claims 

Post#66 » by d-train » Sun Jun 24, 2012 7:23 pm

DBoys wrote:
d-train wrote:... the CBA doesn't address the bird rights of players claimed off waivers because ....


Since the CBA does define who qualifies for Bird rights, this statement is not true. Per the CBA definition, waiver claimees do not meet the qualification criteria.

The CBA grants bird rights to players that enter into 2 or 3-year agreements and don't change teams via free agency.

Edit: The CBA also grants bird rights to players that enter into multiple 1-year agreements if they don't change teams via free agency. If a player changes teams via free agency, they can still acquire bird rights if they don't change teams again after a period less than 2-years.
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Re: Possible Arbitration on Bird Rights after waiver claims 

Post#67 » by d-train » Sun Jun 24, 2012 10:53 pm

Thinking a little more about this controversy, the issue arises because of the new amnesty provision. The NBA and NBPA knew the amnesty provision created a new issue regarding bird rights if a player is claimed off waivers. There was always a waiver procedure but there was no disputed issue under the old CBA because the likelihood of the issue arising was so miniscule and it was agreed that the players would have bird rights. But, the introduction of the amnesty provision assured it would be a significant issue because the NBA doesn't want amnestied players to have bird rights. And, in addition to Billups having his contract assigned via waivers, 3 other players tabbed off waivers have bird rights from contracts beginning with other teams.
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Re: Possible Arbitration on Bird Rights after waiver claims 

Post#68 » by DBoys » Sun Jun 24, 2012 11:24 pm

d-train wrote:The CBA grants bird rights to players that enter into 2 or 3-year agreements and don't change teams via free agency..


Nope. "Free agency" isn't in the definition at all in relation to a player's history, and neither is a requirement for a certain length of agreement. The issue is changing teams, and it says it can ONLY be via trade during the 2 or 3 years prior in order to qualify for Bird/EB status.
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Re: Possible Arbitration on Bird Rights after waiver claims 

Post#69 » by DBoys » Sun Jun 24, 2012 11:27 pm

d-train wrote:There was always a waiver procedure but there was no disputed issue under the old CBA because the likelihood of the issue arising was so miniscule and it was agreed that the players would have bird rights..


Where do you come up with this fantasy world nonsense? Your narrative is pure fiction.
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Re: Possible Arbitration on Bird Rights after waiver claims 

Post#70 » by d-train » Mon Jun 25, 2012 12:38 am

DBoys wrote:
d-train wrote:The CBA grants bird rights to players that enter into 2 or 3-year agreements and don't change teams via free agency..


Nope. "Free agency" isn't in the definition at all in relation to a player's history, and neither is a requirement for a certain length of agreement. The issue is changing teams, and it says it can ONLY be via trade during the 2 or 3 years prior in order to qualify for Bird/EB status.

You are wrong as evidenced by the arbitrator’s decision.

DBoys wrote:
d-train wrote:There was always a waiver procedure but there was no disputed issue under the old CBA because the likelihood of the issue arising was so miniscule and it was agreed that the players would have bird rights..


Where do you come up with this fantasy world nonsense? Your narrative is pure fiction.

In a prior post I asked, "Where does the CBA say "bird rights" are conditioned on a player being on 1 team for 3 years?" To which you replied with the following citation: "“Qualifying Veteran Free Agent” means a Veteran Free Agent who, prior to becoming a Veteran Free Agent, played under one or more Player Contracts covering some or all of each of the three preceding Seasons and either played exclusively with his Prior Team during such three Seasons, or, if he played with more than one Team during such period, changed Teams only (i) by means of trade, or (ii) by signing with his Prior Team during the first of the three Seasons."

The same definition is in the prior CBA with the following insignificant difference: "if he played with more than one Team during such period, changed Teams only (x) by means of assignment, or (y) by signing with his Prior Team during the first of the three Seasons"

The substitution of the word "assignment" with the word "trade" is insignificant in meaning but it does evidence a change in how the NBA views the meaning of the document as opposed to how the NBPA views the meaning.

Clearly, by the words used in the prior CBA and your erroneous interpretation of the current CBA, there would be no dispute that Lin, Billups, Hickson, and Novak would all have bird rights.
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Re: Possible Arbitration on Bird Rights after waiver claims 

Post#71 » by DBoys » Mon Jun 25, 2012 2:57 am

I don't agree that the CBA says something that I can clearly see it doesn't say ....but I agree (as I'm sure you do as well) that the accurate "interpretation" will effectively be whatever the appeals panel says it is. But we don't yet know what they will say, and at this moment, the NBA's position is still the one that's effectively the rule.
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Re: Possible Arbitration on Bird Rights after waiver claims 

Post#72 » by DBoys » Mon Jun 25, 2012 3:36 am

d-train wrote:The same definition is in the prior CBA with the following insignificant difference: "if he played with more than one Team during such period, changed Teams only (x) by means of assignment, or (y) by signing with his Prior Team during the first of the three Seasons"

The substitution of the word "assignment" with the word "trade" is insignificant in meaning but ....


Your above assertion is not true.

In the 2005 CBA on the NBPA's website, the CBA says:

“Qualifying Veteran Free Agent” means a Veteran Free Agent who, prior to becoming a Veteran Free Agent, played under one or more Player Contracts covering some or all of each of the three preceding Seasons and either played exclusively with his Prior Team during such three Seasons, or, if he played with more than one Team during such period, changed Teams only (i) by means of trade, or (ii) by signing with his Prior Team during the first of the three Seasons.

Your claim that the wording changed in the 2011 CBA is a falsehood.
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Re: Possible Arbitration on Bird Rights after waiver claims 

Post#73 » by Dunkenstein » Mon Jun 25, 2012 8:25 am

DBoys is correct that there is no change in the definition of "Qualifying Veteran Free Agent" between the 2005 and 2011 CBAs. Both refer to changing teams by means of "trade". However, in the 1999 CBA the definition of a QVFA refers to the changing of teams by means of "assignment".

To quote the arbitrator in his ruling: "Prior to 2005 a player who changed teams via the waiver process would have had Bird (or Early Bird) rights. Although there was some hesitation on the NBA side to take a position on that question, I rely on the statement by Richard S. Buchanan, the General Counsel of the NBA, to the effect that the term 'assignment' under the prior CBA was 'broad enough to have covered both waivers and trades.' ” When the arbitrator refers to the "prior CBA" he is talking about the 1999 CBA.

He goes on to say, "So the issue is whether changes made to the CBA in 2005 altered that result. It is therefore imperative to review the changes made in 2005. The principal changes were that the word “assignment” was changed to “trade” in more than 20 separate provisions. . . "

The arbitrator concludes in his ruling that "on the basis of the terms of the CBA, interpreted in the context of what was changed from the prior CBA to the present CBA (and was specifically agreed to, included and not included) that players who change teams pursuant to the waiver process are entitled to rely on Bird and Early Bird rights that they are otherwise entitled to. And it follows, since these provisions affect Salary Cap calculations, that the Salary Cap effects do not depend on the fact that the players changed teams through the waiver process rather than through a team-to-team negotiations process."

In essence he ruled that changing the word "assignment" to "trade" more than 20 times from the 1999 CBA to the 2005 CBA (and subsequently the 2011 CBA) should not have changed the rights of players claimed off waivers to retain their Bird or Early Bird rights.
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Re: Possible Arbitration on Bird Rights after waiver claims 

Post#74 » by Three34 » Mon Jun 25, 2012 9:49 am

Well that's lame.
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Re: Possible Arbitration on Bird Rights after waiver claims 

Post#75 » by DBoys » Mon Jun 25, 2012 10:34 am

One of the things that happens in each new CBA is that one side or another is afforded the opportunity to clean up unintended consequences of sloppy wording, which created loopholes to be closed. The closing of the loophole that allowed the Mavs to use a retired Van Horn in trade is one such loophole that the league didn't like, but that had to wait until 2011 to be eliminated.

From what Dunkenstein has provided, it appears that the NBA did just that in 2005 with this wording, and the arbitrator has chosen to say "But let's return it back to the broader meaning despite the fact it was clearly changed to where it doesn't say that any longer." That would make this arbitrator's verdict a triumph of one side's "wish it said this" over the language of the negotiated and agreed-to doc itself, in fact two generations of CBAs. I'll be curious to see if the appeals panel decides he has overstepped his authority by doing so.

Is that initial ruling online anywhere?

My understanding is that per the CBA rules, the appeals panel will be using a "de novo" standard for this sort of issue, which (if true) means it's starting over. Can anyone confirm that?
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Re: Possible Arbitration on Bird Rights after waiver claims 

Post#76 » by d-train » Mon Jun 25, 2012 6:38 pm

DBoys wrote:
d-train wrote:The same definition is in the prior CBA with the following insignificant difference: "if he played with more than one Team during such period, changed Teams only (x) by means of assignment, or (y) by signing with his Prior Team during the first of the three Seasons"

The substitution of the word "assignment" with the word "trade" is insignificant in meaning but ....


Your above assertion is not true.

In the 2005 CBA on the NBPA's website, the CBA says:

“Qualifying Veteran Free Agent” means a Veteran Free Agent who, prior to becoming a Veteran Free Agent, played under one or more Player Contracts covering some or all of each of the three preceding Seasons and either played exclusively with his Prior Team during such three Seasons, or, if he played with more than one Team during such period, changed Teams only (i) by means of trade, or (ii) by signing with his Prior Team during the first of the three Seasons.

Your claim that the wording changed in the 2011 CBA is a falsehood.

Well, I downloaded a pdf from NBPA's website January of 2009 that I thought was the 2005 agreement but apparently, it was the 1999 agreement. So, the change to the word "trade" from the word "assignment" happened in the 2005 agreement. That kills my theory that the division in interpretation of the agreement was introduced by the amnesty provision but it doesn't change the fact that this dispute did not exist until the use of the word "assignment" was changed to “trade.”

The NBA's case is based on their belief that changing one word constituted an agreement with players to retroactively go back in time and take away an earned salary benefit anticipated by players at the time an employment agreement is executed. I disagree because the word "trade" from the POV of the players is the same as "assignment." Additionally, I believe the players win the case on the definition of Prior Team.

The NBA’s case is so goofy they must argue that a player that signs a 4-year agreement with team “A” and 3 years later team “A” assigns his contract to team “B,” then after the player completes the 4th year of his contract he retroactively loses salary benefits that he earned after completing his 2nd and 3rd years. Unless, team “B” trades the player back to team “A” during his 4th season, then the player’s salary benefits are restored. The obvious problem with the NBA’s interpretation besides its wacky effect is where is the evidence that the player agreed to an assignment without the full transfer of obligations.

I also still believe the clumsy wording is no accident. I believe both sides were aware in 2005 of the division in interpretation and they kicked the can down the road again in 2011.
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Re: Possible Arbitration on Bird Rights after waiver claims 

Post#77 » by d-train » Mon Jun 25, 2012 6:52 pm

DBoys wrote:I don't agree that the CBA says something that I can clearly see it doesn't say ....but I agree (as I'm sure you do as well) that the accurate "interpretation" will effectively be whatever the appeals panel says it is. But we don't yet know what they will say, and at this moment, the NBA's position is still the one that's effectively the rule.

Obviously, the arbitrator and appeals panel is in a better position to correctly interpret the agreement and resolve the controversy. I have spent limited time reviewing the incomplete and outdated information that I have and the experts will have all the current relevant facts and will thoroughly weigh the evidence.
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Re: Possible Arbitration on Bird Rights after waiver claims 

Post#78 » by DBoys » Tue Jun 26, 2012 12:00 am

d-train wrote:
DBoys wrote:
d-train wrote:The same definition is in the prior CBA with the following insignificant difference: "if he played with more than one Team during such period, changed Teams only (x) by means of assignment, or (y) by signing with his Prior Team during the first of the three Seasons"

The substitution of the word "assignment" with the word "trade" is insignificant in meaning but ....


Your above assertion is not true.

In the 2005 CBA on the NBPA's website, the CBA says:

“Qualifying Veteran Free Agent” means a Veteran Free Agent who, prior to becoming a Veteran Free Agent, played under one or more Player Contracts covering some or all of each of the three preceding Seasons and either played exclusively with his Prior Team during such three Seasons, or, if he played with more than one Team during such period, changed Teams only (i) by means of trade, or (ii) by signing with his Prior Team during the first of the three Seasons.

Your claim that the wording changed in the 2011 CBA is a falsehood.

Well, I downloaded a pdf from NBPA's website January of 2009 that I thought was the 2005 agreement but apparently, it was the 1999 agreement. So, the change to the word "trade" from the word "assignment" happened in the 2005 agreement. That kills my theory that the division in interpretation of the agreement was introduced by the amnesty provision but it doesn't change the fact that this dispute did not exist until the use of the word "assignment" was changed to “trade.”

The NBA's case is based on their belief that changing one word constituted an agreement with players to retroactively go back in time and take away an earned salary benefit anticipated by players at the time an employment agreement is executed. I disagree because the word "trade" from the POV of the players is the same as "assignment." Additionally, I believe the players win the case on the definition of Prior Team.

The NBA’s case is so goofy they must argue that a player that signs a 4-year agreement with team “A” and 3 years later team “A” assigns his contract to team “B,” then after the player completes the 4th year of his contract he retroactively loses salary benefits that he earned after completing his 2nd and 3rd years. Unless, team “B” trades the player back to team “A” during his 4th season, then the player’s salary benefits are restored. The obvious problem with the NBA’s interpretation besides its wacky effect is where is the evidence that the player agreed to an assignment without the full transfer of obligations.

I also still believe the clumsy wording is no accident. I believe both sides were aware in 2005 of the division in interpretation and they kicked the can down the road again in 2011.


Your understanding of the rule itself is erroneous, as well as multiple points you assert in the above.

1 The dispute actually didn't arise as a result of the change in wording ...because this wording has been in place since 2005 and has appeared MANY times in the product of TWO agreed-to negotiations where the lawyers chose the language of the docs.
2 The changes in 2005 were so widespread that they could have been neither accidental nor unnoticed.
3 If "assignment" and "trade" are identically synonymous as you assert, then there was no change in 2005. Which is it?
4 There was nothing "retroactive" in the change of the rule. It was part of TWO aggressively negotiated CBA deals, and there was plenty of opportunity to change the rule or wording in 2005 and/or 2011 in exchange for concessions on the other side had the PA chosen.
5 Bird rights is an earned benefit only to the extent that a player completes his contract without being waived. The act of signing the contract never confers anything.
6 The idea that a player could be traded back to a team and get Bird rights restored after previously losing them does not conform to ANYONE's interpretation of the rule - you are completely garbling that clause's wording and impact.
7 Your concept that a player otherwise MUST agree to an assignment is simply wrong, as a player's permission is not required for ANY assignment besides the initial act of sign-and-trade deals and the somewhat rare trade-only-by-permission situations in NBA rules.
8 The rule's wording is not clumsy - an attempt to garble its obvious wording or meaning only alters the comprehension of the one who does it, not the clarity or effect of the rule itself. The fact that the rule is consistent and created by a staff of lawyers on both sides means its syntax has been well vetted.
9 If the players thought there was a problem in the content of the wording since 2005, they certainly can't use that as a justification for a claim that the rule somehow accidentally harms them and needs to be revised. Did they know, or did they not?
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Re: Possible Arbitration on Bird Rights after waiver claims 

Post#79 » by d-train » Tue Jun 26, 2012 3:34 am

DBoys wrote:1 The dispute actually didn't arise as a result of the change in wording ...because this wording has been in place since 2005 and has appeared MANY times in the product of TWO agreed-to negotiations where the lawyers chose the language of the docs.
2 The changes in 2005 were so widespread that they could have been neither accidental nor unnoticed.

At least we agree changing the word "assignment" to "trade" wasn't an accident or unnoticed.

There is no dispute that the CBA prior to 2005 would have allowed Lin, Novak, Hickson, and Billups to enter free agency with bird rights. So, it follows that the current dispute between the NBA and NBPA originates from an interpretation disagreement originating with the 2005 agreement and continued with the 2011 agreement.

The perfect way to begin a dispute is from a negotiated written agreement between lawyers.

In this case, it appears the dispute started [or partially started] because the NBA believes the word "trade" has a different effect than the word "assignment." And, the NBPA believes the 2 words are interchangeable in the context of the agreement, a trade is an assignment and an assignment is a trade. The differences in meaning if there are any are business rules between teams and don't effect players.

DBoys wrote:3 If "assignment" and "trade" are identically synonymous as you assert, then there was no change in 2005. Which is it?

The NBPA says no change and the NBA says it’s a big change otherwise we wouldn't have a dispute.

Obviously, an arbitrator after hearing the arguments and reviewing the documents agrees with the NBPA.

DBoys wrote:4 There was nothing "retroactive" in the change of the rule. It was part of TWO aggressively negotiated CBA deals, and there was plenty of opportunity to change the rule or wording in 2005 and/or 2011 in exchange for concessions on the other side had the PA chosen.
5 Bird rights is an earned benefit only to the extent that a player completes his contract without being waived. The act of signing the contract never confers anything.

First, there was no substantial change in the rule. The arbitrator ruled in favor of the NBPA's position.

Players earn "bird rights" benefits after 2 years and additional benefits after 3 years if their contract(s) are bargained with the team that owns the player’s rights according to the CBA. The NBA asserted that certain players that earned "bird rights" subsequently lost that portion of their salary benefits because of a contract assignment. The arbitrator ruled that a contract assignment does not retroactively take back earned benefits.

DBoys wrote:6 The idea that a player could be traded back to a team and get Bird rights restored after previously losing them does not conform to ANYONE's interpretation of the rule - you are completely garbling that clause's wording and impact.

It is the NBA's position (and overruled by an arbitrator) that had the Clippers traded Billups to the Pistons he would have bird rights but because his contract was assigned by the Knicks to the Clippers via waivers and not subsequently traded back to the Pistons that his prior earned bird rights are retroactively taken away. Obviously, it is a goofy position to take but that is what the NBA argued was the rule.

DBoys wrote:7 Your concept that a player otherwise MUST agree to an assignment is simply wrong, as a player's permission is not required for ANY assignment besides the initial act of sign-and-trade deals and the somewhat rare trade-only-by-permission situations in NBA rules.

I have no idea what you are talking about.

I believe the CBA allows teams to assign players but doesn't allow players to have earned benefits taken away as result of the assignment.

DBoys wrote:8 The rule's wording is not clumsy - an attempt to garble its obvious wording or meaning only alters the comprehension of the one who does it, not the clarity or effect of the rule itself. The fact that the rule is consistent and created by a staff of lawyers on both sides means its syntax has been well vetted.

The above [Billups] example of the NBA's explanation of how they interpret the CBA's language can be described many ways.

DBoys wrote:9 If the players thought there was a problem in the content of the wording since 2005, they certainly can't use that as a justification for a claim that the rule somehow accidentally harms them and needs to be revised. Did they know, or did they not?

There is no problem with the wording of the 2005 or 2011 CBA's unless the NBA has an indefensible interpretation of the agreements, which appears to be the case according to the arbitrator.
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Re: Possible Arbitration on Bird Rights after waiver claims 

Post#80 » by DBoys » Tue Jun 26, 2012 5:50 am

1 "It is the NBA's position (and overruled by an arbitrator) that had the Clippers traded Billups to the Pistons he would have bird rights " ....I don't know where you came up with this fanciful idea. It's hard to discuss this with you when you make stuff up. The rule says no such thing, the NBA didn't argue any such thing, and the arb's decision didn't contemplate any such thing.

2 "Players earn "bird rights" benefits after 2 years and additional benefits after 3 years if their contract(s) are bargained with the team that owns the player’s rights according to the CBA"....That's not at all what the CBA says. Bird rights are not earned by the signing of or bargaining for the contract.They are earned by playing with the same team for 2 or 3 seasons - or if changing teams, only doing so by trade.

3 Your idea that "trade" and "assignment' are synonymous is absurd and I'm sure you know it. Despite your imaginative narrative, the arbitrator didn't rule them synonymous, he just chose to ignore the rule as written. Assignment is clearly the broad category, with trade just one specific item within that broader category.

4 As for whether the NBA's position is defensible or not, or whether it's the NBPA that is out in left field, we won't know until we have a final ruling, after they start over with the case in front of the appeals panel. At this point, nothing has changed at all.

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