Possible Arbitration on Bird Rights after waiver claims

[HartfordWhalers]

Does anyone know where to get documents like the briefs from both sides?

I haven't seen them. It is arbitration so unless they are leaked we will probably just have to settle for the final verdict, although that should be here soon.

[Three34]

http://www.nytimes.com/2012/06/23/sport ... d=tw-share

How the bloody hell did that happen

[HartfordWhalers]

http://www.nytimes.com/2012/06/23/sports/basketball/jeremy-lin-granted-early-bird-rights.html?_r=1&smid=tw-share

How the bloody hell did that happen

Good to see that it was resolved pre-draft even.

And I agree, I'm surprised the players union won it. I think the ruling is a better, more consistent fit with what the shape and possible intent of the CBA was, but fully expected a tight letter of the law reading with the players losing.

[d-train]

The arbitrator made the only possible decision. The NBA had no case.

[DBoys]

I don't get the validity of the decision either, but what's done is done I guess. Not that it will make a huge difference, but it will do a bit of alteration to some of the landscape.

[DBoys]

The arbitrator made the only possible decision. The NBA had no case.

Your response is predictably extremely-NBAPA-sided ...and the idea that the NBA had "no case" in asserting that a negotiated, signed agreement should be enforced as written is goofy (and simply wrong from a legal standpoint).

[d-train]

The arbitrator made the only possible decision. The NBA had no case.

Your response is predictably extremely-NBAPA-sided ...and the idea that the NBA had "no case" in asserting that a negotiated, signed agreement should be enforced as written is goofy (and simply wrong from a legal standpoint).

lol the signed negotiated agreement is what the arbitrator is enforcing. He has no other authority.

[DBoys]

The arbitrator made the only possible decision. The NBA had no case.

Your response is predictably extremely-NBAPA-sided ...and the idea that the NBA had "no case" in asserting that a negotiated, signed agreement should be enforced as written is goofy (and simply wrong from a legal standpoint).

lol the signed negotiated agreement is what the arbitrator is enforcing. He has no other authority.

Actually he isn't ...which is what makes the ruling so odd and unexpected. The CBA says one thing (which has already been well outlined in this thread), and he says "Nah, it should have said something else, so let's go with that". Reportedly the NBA will take it to court.

[d-train]

Your response is predictably extremely-NBAPA-sided ...and the idea that the NBA had "no case" in asserting that a negotiated, signed agreement should be enforced as written is goofy (and simply wrong from a legal standpoint).

lol the signed negotiated agreement is what the arbitrator is enforcing. He has no other authority.

Actually he isn't ...which is what makes the ruling so odd and unexpected. The CBA says one thing (which has already been well outlined in this thread), and he says "Nah, it should have said something else, so let's go with that". Reportedly the NBA will take it to court.

The negotiated written agreement is clear and so is the arbitrator. If the CBA allows an appeal, the players will win that as well.

[Nanogeek]

Actually he isn't ...which is what makes the ruling so odd and unexpected. The CBA says one thing (which has already been well outlined in this thread), and he says "Nah, it should have said something else, so let's go with that". Reportedly the NBA will take it to court.

That's quite absurd. An arbitrator is never left to just make up something. An arbitrator effectively uses the principles of statutory construction when evaluating a legal document. The first question is whether or not wording is unambiguous and are all terms clearly defined? If not then the second question is can the principle of noscitur a sociis be applied to less than clear terms that are embedded in otherwise unambiguous provisions. If the structure of the provision is unclear but the terms are clearly defined then the arbitrator must determine the intent of the parties. The first document to appeal to is the agreement itself. Are there other areas in the document that inform as to the intent of the provision in question. If not then are their documents or material external to the agreement that inform as to the intent of the provision in question. If there are no external materials whatsoever then the arbitrator looks to the governing law of the document to determine how provisions must be construed - in favor of one party or the other - for example, the "reasonable person standard", etc. If there is still no conclusion after all this then the arbitrator looks to what conclusion flows most naturally from the agreement, i.e., what conclusion would be least disruptive to the agreement. Only in this last area is the arbitrator exercise any real discretion - before that he or she is just following where the law takes the matter. And with a document as heavily lawyered as the CBA I'm quite certain the arbitrator never got to that point.

[Nanogeek]

The reason the arbitrator came to the conclusion he did is because there is a "loophole" (at least from the league's perspective) in the definition of "Prior Team" within the CBA. Normally, you'd think that if a player moved from the Knicks to the Sixers and then the player's contract expired that the player would have two separate and distinct Prior Teams - the Knicks and the Sixers. However, based on the structure of the CBA, it appears the player has only one Prior Team - the Knicks AND the Sixers. Further, one might argue that this is not a result inconsistent with the CBA because in other instances where a player moves from one team to another while under the same contract (a trade) the player effectively has only one Prior Team because the player's years with the pre-trade team are effectively inherited by the post-trade team (akin to a successor concept). I suspect this is what the arbitrator looked to in determining that the conclusion that he did - that such a conclusion was the one most internally consistent with the CBA. In fact, I find it hard to defend any other conclusion on this matter. The league might take this to court because it has to as a matter of diligence on behalf of the owners but I think their chances of prevailing are dim at best. The league lawyers didn't tighten the language sufficiently and now the league is left holding the bag. Its a classic lawyer screw up not dissimilar to the screw up with JPM realized they had provided an open ended guarantee to Bears Stearns before acquiring them that would have lasted in perpetuity even if they never acquired Bear Stearns.

[DBoys]

The reason the arbitrator came to the conclusion he did is because there is a "loophole" (at least from the league's perspective) in the definition of "Prior Team" within the CBA. Normally, you'd think that if a player moved from the Knicks to the Sixers and then the player's contract expired that the player would have two separate and distinct Prior Teams - the Knicks and the Sixers. However, based on the structure of the CBA, it appears the player has only one Prior Team - the Knicks AND the Sixers. Further, one might argue that this is not a result inconsistent with the CBA because in other instances where a player moves from one team to another while under the same contract (a trade) the player effectively has only one Prior Team because the player's years with the pre-trade team are effectively inherited by the post-trade team (akin to a successor concept). I suspect this is what the arbitrator looked to in determining that the conclusion that he did - that such a conclusion was the one most internally consistent with the CBA. In fact, I find it hard to defend any other conclusion on this matter. The league might take this to court because it has to as a matter of diligence on behalf of the owners but I think their chances of prevailing are dim at best. The league lawyers didn't tighten the language sufficiently and now the league is left holding the bag. Its a classic lawyer screw up not dissimilar to the screw up with JPM realized they had provided an open ended guarantee to Bears Stearns before acquiring them that would have lasted in perpetuity even if they never acquired Bear Stearns.

Where do you think the term "Prior Team" is contradictory? The CBA explicitly defines one Prior Team, the team immediately prior to free agency. Where is there a conflict?

“Prior Team” means the Team for which a player was last under Contract prior to becoming a Qualifying Veteran Free Agent, Early Qualifying Veteran Free Agent or a Non-Qualifying Veteran Free Agent.

You said: "Normally, you'd think that if a player moved from the Knicks to the Sixers and then the player's contract expired that the player would have two separate and distinct Prior Teams - the Knicks and the Sixers. However, based on the structure of the CBA, it appears the player has only one Prior Team - the Knicks AND the Sixers. "

I don't think any of that or find that to be "normal" - particularly when the term itself is defined for me. In my normal understanding - which is the same as the CBA definition - when a player is a free agent, their prior team would be the one just before free agency, that the player was with when the contract ran out.

[DBoys]

Actually he isn't ...which is what makes the ruling so odd and unexpected. The CBA says one thing (which has already been well outlined in this thread), and he says "Nah, it should have said something else, so let's go with that". Reportedly the NBA will take it to court.

That's quite absurd. An arbitrator is never left to just make up something. An arbitrator effectively uses the principles of statutory construction when evaluating a legal document. The first question is whether or not wording is unambiguous and are all terms clearly defined? If not then the second question is can the principle of noscitur a sociis be applied to less than clear terms that are embedded in otherwise unambiguous provisions. If the structure of the provision is unclear but the terms are clearly defined then the arbitrator must determine the intent of the parties. The first document to appeal to is the agreement itself. Are there other areas in the document that inform as to the intent of the provision in question. If not then are their documents or material external to the agreement that inform as to the intent of the provision in question. If there are no external materials whatsoever then the arbitrator looks to the governing law of the document to determine how provisions must be construed - in favor of one party or the other - for example, the "reasonable person standard", etc. If there is still no conclusion after all this then the arbitrator looks to what conclusion flows most naturally from the agreement, i.e., what conclusion would be least disruptive to the agreement. Only in this last area is the arbitrator exercise any real discretion - before that he or she is just following where the law takes the matter. And with a document as heavily lawyered as the CBA I'm quite certain the arbitrator never got to that point.

I agree with the concept that an arbitrator is SUPPOSED TO defer to the document and only rule when it's ambiguous. But the only "ambiguity" I see is not in the CBA itself, but rather that the document says one thing, but there's an argument that the trade and waiver-claim results are somewhat similar and therefore should have been given the same Bird status.

And unless there is actual ambiguity in the doc, it would seem to me that the arbitrator overstepped his bounds, as you have so painstakingly outlined.

[Nanogeek]

Where do you think the term "Prior Team" is contradictory? The CBA explicitly defines one Prior Team, the team immediately prior to free agency. Where is there a conflict?

“Prior Team” means the Team for which a player was last under Contract prior to becoming a Qualifying Veteran Free Agent, Early Qualifying Veteran Free Agent or a Non-Qualifying Veteran Free Agent.

You said: "Normally, you'd think that if a player moved from the Knicks to the Sixers and then the player's contract expired that the player would have two separate and distinct Prior Teams - the Knicks and the Sixers. However, based on the structure of the CBA, it appears the player has only one Prior Team - the Knicks AND the Sixers. "

I don't think any of that or find that to be "normal" - particularly when the term itself is defined for me. In my normal understanding - which is the same as the CBA definition - when a player is a free agent, their prior team would be the one just before free agency, that the player was with when the contract ran out.

I think the question is whether the player ever is a free agent in the first place if he is claimed off waivers. A free agent is a player whose contract terminates either due to the terms of the contract itself or the operation of the waiver procedures. If a team claims a waived player off of waivers then the player's contract never terminates. This is why I think the player's former team (the "Waiving Team") and the player's new team (the "Claiming Team") are conflated into a single entity for purposes of the CBA and the definition of Prior Team. I know there has been much hay made about the "by means of trade" language in the CBA EQVFA definition but I think that misses the point. The second prong in the EQVFA definition is not the relevant definition. Its the first prong focusing on the Prior Team definition, i.e., the player played each of the two preceding seasons with his Prior Team. If a player played for the Waiving Team and the Claiming Team without ever becoming a Free Agent then those two teams could be considered the same team. That is the "loophole", if you want to call it that, that exists in the current CBA. The arbitrator may view the spirit of the CBA and the waiver procedure as striving to put a player who is claimed off waivers in the same position as if the team continued to play with the same team and in that case the Waiving Team and the Claiming Team should be considered the player's Prior Team when his contract expires.

[DBoys]

I don't think any of what you've said is relevant to the issue.

“Free Agent” means: (i) a Veteran Free Agent; (ii) a Rookie Free Agent; (iii) a Veteran whose Player Contract has been terminated in accordance with the NBA waiver procedure; or (iv) a player whose last Player Contract was a 10-Day Contract and who either completed the Contract by rendering the playing services called for thereunder or was released early from such Contract.

By that definition, a waiver-claimee is not a free agent. But that issue per se really doesn't matter, since Prior Team simply looks back at the team the player was on just before becoming a free agent and no farther.

“Prior Team” means the Team for which a player was last under Contract prior to becoming a Qualifying Veteran Free Agent, Early Qualifying Veteran Free Agent or a Non-Qualifying Veteran Free Agent.

There's no ambiguity in any of that.

You say "This is why I think the player's former team (the "Waiving Team") and the player's new team (the "Claiming Team") are conflated into a single entity for purposes of the CBA and the definition of Prior Team." ...But does the CBA conflate the two into such a single entity? I think they are very distinct, and are never grouped as "Prior Team". Do you have a CBA instance where such is the case?

[Nanogeek]

You misunderstand my point. The CBA is silent as to the status of a player claimed off of waivers because there is nothing within the agreement the classifies what a player is that moves from the Waiving Team to the Claiming Team. The free agency machinery in the CBA operates to stop the tolling of "Bird Years" for example. However, nothing in the CBA stops the tolling for a player claimed off waivers. Again - the spirit of the waiver procedure is such that a player claimed off waivers continues with the Claiming Team as if the Claiming Team were the Waiving Team. The Claiming Team steps into the shoes of the Waiving Team with respect to the contract, the cap consequences, etc. The arbitrator likely concluded that the Prior Team definition conflates the Waiving Team and the Claiming Team for purposes of that definition when determining EQVFA or QVFA status.

You can't piece that together from the explicit terms of the CBA because of course if you could then there'd be no need for arbitration. I think the conclusion that the Waiving Team and the Claiming Team are conflated for Prior Team determination purposes is more consistent with the waiver procedures than to say otherwise. To say otherwise inexplicably causes the player to be treated differently for one particular purpose while treating him the same for others (e.g., the contract itself).

We'll see what the courts have to say I suppose.

[Three34]

because there is nothing within the agreement the classifies what a player is that moves from the Waiving Team to the Claiming Team.

That's as may be, I couldn't say. It surely does not need to, however. The definition of early qualifying free agent stipulates that a player has to be traded to retain their rights, and the definition of traded explicitly states that it is not the same as the waivers process. It's all pretty clear cut, which is why the decision is weird.

[Nanogeek]

because there is nothing within the agreement the classifies what a player is that moves from the Waiving Team to the Claiming Team.

That's as may be, I couldn't say. It surely does not need to, however. The definition of early qualifying free agent stipulates that a player has to be traded to retain their rights, and the definition of traded explicitly states that it is not the same as the waivers process. It's all pretty clear cut, which is why the decision is weird.

You're focusing on the second prong of the EQVFA definition which I don't think it relevant. I think everyone can agree that no player claimed off waivers can rely upon the second prong of the EQVFA definition to be a EQVFA. The question is whether such a player can rely on the first prong which in turn depends on the Prior Team definition. When one reads the Prior Team definition it seems fairly clear that the use of the word "Team" would mean the Waiving Team and the Claiming Team are different. However, I believe (I don't know for certain) that the arbitrator is relying upon the waiver procedures and the effects claiming a player off of wavers has (e.g., successor to contract obligations, cap impact, etc.) to conclude that for purposes of Prior Team definition evaluation that the Waiving Team and Claiming Team are the same Team or that the Claiming Team is a successor to the Waiving Team for purposes of the Prior Team definition.

[DBoys]

The CBA does not start or stop "the tolling of Bird years" anywhere at any time - and therefore has no need to address it as stopping or continuing - because the idea of a "Bird clock" is an analogy, not something within the CBA.

Instead, it confers added rights to certain players who meet a definition. Waiver-claimees like these don't meet that definition.

In addition, there's no fuzziness about who the Prior Team is, in the definition. There's no fuzziness about which is the Waiving team, and which is the Claiming Team. They are not conflated, but distinct. The argument can be (and has been) proffered that EVERYTHING should stay the same in a waiver claim, but the rules clearly don't say that.

I see no ambiguity in the Bird definition, or in the terms used. They are clearly defined within the CBA in a manner that creates no waiver-claim fuzziness.

In total, I believe your argument, as well as that of the union, is one of what they wish the CBA said, rather than fuzziness over it's actual wording ...which is why I think the arbitrator overstepped his bounds. I have yet to see any example offered in the wording of the CBA in which the issue isn't defined as the league says ...all I have ever seen are discussions about items that are irrelevant and not within the definitions. Red herrings imo.

Your argument that "the spirit of the waiver procedure is such that a player claimed off waivers continues with the Claiming Team as if the Claiming Team were the Waiving Team" offers something to argue, but again any supposed ambiguity is NOT based on fuzziness in what is said, but rather in an assertion of what it could have said. To me that makes it a decision in which the "wish it said" has been given preference over "it did say" since what it says is about who gets Bird rights clearly excludes those waiver-claimees.

[Nanogeek]

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. This has gone beyond that. As an aside, we don't know what other rules have been developed in relation to waiver procedures that are external to the CBA. I'm sure there is nothing explicitly on point but if those procedures further perpetuate the spirit of the Claiming Team stepping into the shoes of the Waiving Team and the player being in the same position before and after then the Prior Team definition angle is that much clearer. Again - we will see what the courts have to say.