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Possible Arbitration on Bird Rights after waiver claims

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Post#76 Re: Possible Arbitration on Bird Rights after
Mon Jun 25, 2012 1:38 pm by d-train

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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Post#77 Re: Possible Arbitration on Bird Rights after
Mon Jun 25, 2012 1:52 pm by d-train

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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Post#78 Re: Possible Arbitration on Bird Rights after
Mon Jun 25, 2012 7:00 pm by DBoys

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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Post#79 Re: Possible Arbitration on Bird Rights after
Mon Jun 25, 2012 10:34 pm by d-train

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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Post#80 Re: Possible Arbitration on Bird Rights after
Tue Jun 26, 2012 12:50 am by DBoys

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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Post#81 Re: Possible Arbitration on Bird Rights after
Tue Jun 26, 2012 9:12 am by d-train

Tell me which team according to the NBA is the "Prior Team” Billups has to be playing for prior to becoming a free agent in order to have the bird rights the NBA believes he doesn't have?

I wouldn't say "trade" and "assignment" are synonymous. I say for the purpose of understanding what is an "early" and "qualifying" veteran free agent the terms are interchangeable.

We do have a final decision. The matter has been adjudicated in accordance with the agreement and unless overruled by appeal the decision is final.

DBoys wrote: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.


You are wrong according to the arbitrator.
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Post#82 Re: Possible Arbitration on Bird Rights after
Tue Jun 26, 2012 4:28 pm by DBoys

What the arbitrator decided is virtually meaningless. From what I understand, the appeal basically will consider the issues from scratch, and the NBA's interpretation still governs. The union will have to win their case with a completely different "jury" before anything is altered.
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Post#83 Re: Possible Arbitration on Bird Rights after
Tue Jun 26, 2012 5:55 pm by gelek

There is an article on grantland (http://www.grantland.com/blog/the-trian ... n-decision) which details what the nbapa lawyers argued. it's really interesting but it actually seems that the NBAPA argued the CBA by the letter.

There is the fact that in regards to the traded player exception a traded player is defined as “player whose Player Contract is assigned by one Team to another Team other than by means of the NBA waiver procedure.”

So at that particular point in the CBA they excluded waived players when talking about a "traded player". However when talking about Bird Rights, the definition used is not a "traded player" but "by means of a trade" which the Union argued is not the same thing since its broader in its meaning (they also argued that Steve Novaks waiver pickup by the Knicks is in essence a trade, if not by the means of a "traded player", because the Knicks had to pay $1000 to the spurs). So it actually seems like some sloppy wording won the Union this round.

If you think about the fact that arguably waiver-pickups should be viewed as the same as other traded players (players are never FA in these processes) then you can even argue with the spirit of the law.

So the Union has both bases pretty much covered. Not a bad place to be for the negotiations for a settlement that apparently are starting.

If you then look from a PR-Standpoint this probably becomes a Nightmare for the NBA (they "refuse" player rights that they have earned because of a technicality) and if you look at a likely injunction that the NBAPA has hinted at that would halt Free Agency alltogether then I'd say odds of a settlement are pretty good.
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Post#84 Re: Possible Arbitration on Bird Rights after
Tue Jun 26, 2012 7:07 pm by Nanogeek

Thanks Gelek. Seems rather than argue definitional points in relation to the Prior Team definition the NBAPA is simply saying the "by means of a trade" includes the exchange that occurs between teams when a player is claimed off of waivers. The contract definition argument is a classic one - if you didn't explicitly exclude something in one place but did in another the absence of exclusion in the first instance must imply inclusion rather than exclusion.
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Post#85 Re: Possible Arbitration on Bird Rights after
Tue Jun 26, 2012 9:31 pm by d-train

Here is a good point made by the arbitrator I didn't even consider:

Dam also noted that the two- or three-year “waiting period” requirement for Bird rights was designed to prevent a player from moving as a free agent to a new team and immediately exercising his Bird rights, thus allowing the new team to spend above the salary cap without using a valid cap exception. Dam concluded that the “waiting period” requirement is not applicable, or necessary, when a player is transferred from one team to another via a traditional trade or via the waiver process. In each case, the player is “traded” and has no choice over his new team.
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Post#86 Re: Possible Arbitration on Bird Rights after
Wed Jun 27, 2012 3:03 am by DBoys

Dam also noted that the two- or three-year “waiting period” requirement for Bird rights was designed to prevent a player from moving as a free agent to a new team and immediately exercising his Bird rights, thus ...


The concept of a player "exercising his Bird rights" and arising from the narrative that a player "earns" or "owns" Bird rights is an approach to the definitions in the CBA that I think is technically inconsistent with the way the cap and CBA actually operate. It's one of those explanatory concepts - like the one of a Bird clock stopping and starting - that make easier comprehension of some rules, but that aren't really accurately conveying what the CBA says or how it works.

Does the CBA actually say it bestows anything to the player in this situation? I'm not seeing it. When there's a player who meets certain criteria, it gives something to a TEAM - the opportunity for the team to go over the cap - that the team can use if they wish. But the player owns nothing.

So if I'm the NBA, I think I'd strenuously fight for accuracy in the appeal, and try to keep the discussion on the technically precise grounds that the issue is about whether a team has done what it takes to merit extra cap latitude, or not. Acquire a player in a trade where you've had to give negotiated value in return, and you've earned the right as a team to get continuing Bird rights with him ...but claim him via waivers off the league's scrap heap, and you haven't.

To further underscore the point, who would be the big beneficiary of a rules change in this case? It's not Lin. Lin will get paid by the MLE, or by the EB, but he'll still get the same pay either way. The one who would gain an MLE to use elsewhere by being given an Early Bird exemption to use on Lin would be the Knicks.

And if the case is framed more accurately like that, the potentially aggrieved party (if there is an aggrieved party) would then become the team in question, and not any individual player. The NBA should recognize that It's easier for a jury to offer a sympathetic ruling to a player theoretically being bullied by a league, but a billion-dollar monolith like the Knicks is far less likely to be seen as someone needing rules altered to benefit them.
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Post#87 Re: Possible Arbitration on Bird Rights after
Wed Jun 27, 2012 3:38 am by gelek

DBoys wrote:
Dam also noted that the two- or three-year “waiting period” requirement for Bird rights was designed to prevent a player from moving as a free agent to a new team and immediately exercising his Bird rights, thus ...


The concept of a player "exercising his Bird rights" and arising from the narrative that a player "earns" or "owns" Bird rights is an approach to the definitions in the CBA that I think is technically inconsistent with the way the cap and CBA actually operate. It's one of those explanatory concepts - like the one of a Bird clock stopping and starting - that make easier comprehension of some rules, but that aren't really accurately conveying what the CBA says or how it works.

Does the CBA actually say it bestows anything to the player in this situation? I'm not seeing it. When there's a player who meets certain criteria, it gives something to a TEAM - the opportunity for the team to go over the cap - that the team can use if they wish. But the player owns nothing.

So if I'm the NBA, I think I'd strenuously fight for accuracy in the appeal, and try to keep the discussion on the technically precise grounds that the issue is about whether a team has done what it takes to merit extra cap latitude, or not. Acquire a player in a trade where you've had to give negotiated value in return, and you've earned the right as a team to get continuing Bird rights with him ...but claim him via waivers off the league's scrap heap, and you haven't.

To further underscore the point, who would be the big beneficiary of a rules change in this case? It's not Lin. Lin will get paid by the MLE, or by the EB, but he'll still get the same pay either way. The one who would gain an MLE to use elsewhere by being given an Early Bird exemption to use on Lin would be the Knicks.

And if the case is framed more accurately like that, the potentially aggrieved party (if there is an aggrieved party) would then become the team in question, and not any individual player. The NBA should recognize that It's easier for a jury to offer a sympathetic ruling to a player theoretically being bullied by a league, but a billion-dollar monolith like the Knicks is far less likely to be seen as someone needing rules altered to benefit them.


Where do you actually stand on this issue. Initially you seemed to be kind of unbiased and more interested in the proceedings than anything else. Now more and more it just seems like either you want to save face because it looks like you're initial judgement might have been too prematurely or you have a hidden agenda where you'd like to see the Union lose.

I'm hard-strung to find another explanation as to why you seem to consistently change your argumentation once it is proven a moot point.
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Post#88 Re: Possible Arbitration on Bird Rights after
Wed Jun 27, 2012 4:17 am by DBoys

What issue do you think I've changed? And what do you think is moot?

I have read the rules and examined the terminology first-hand, and to me the meaning of "only by trade" is clear wording. Always was, and still is. We all know what an NBA trade is, and we know that waivers and trades are different.

So I thought from the outset, before we knew the text of his ruling, that the arbitrator may have gone away from the CBA and ruled based on what he thought it "should say" rather than what it actually says.

Now that we have more info, I do see where he makes an issue of the meaning of the word "trade" but to me that's a stretch in trying to create ambiguity where none exists. And the bulk of what I have read of his ruling (I haven't been able to find the actual full text online) focuses on issues of "should say" rather than allowing the document to speak for itself. Just as I feared, in other words.

In light of that, if that's all he has, then yeah I've progressed from curious, to being in favor of his (what I see as) convoluted reasoning being overturned and things going back to the obvious intent in the CBA as written. My thoughts haven't changed - except, now that I know his reasoning, I see nothing worth a bucket of warm spit to validate the result..

So now it's clear to me that the arb made a ruling that went far afield, since "only by trade" is simple-to-follow wording. But he can do that, so I'm offering thoughts on what the league can do to foreclose the ability for the NBPA to make this about "rights" of players rather than about processes for teams to follow.

You do follow that the arb ruling was effectively meaningless and that as we stand, nothing has changed and the next round will start all over with a brand new consideration of the arguments, right?

In that context, I'm now taking a look at what he asserts and where he comes from, and also the stuff from d-train, and opining about the best approach for the NBA that might ensure a more rational verdict on appeal.

As I read what he says, and read what d-train writes, it appears to me much of the argument is based on a repeated recasting of the CBA's provisions into an analogy that isn't accurate ...and worse, it's one that if taken to its conclusion, leads to rulings and "should have said' approaches from left field like this. That's why I am opining that if the NBA wants a greater chance of success in the appeal process, it should focus on moving the terminology back to something more precise, where this is an argument not about the league giving something to players (and then taking it away) or about players earning something (and then it being taken away), which are ideas not within the CBA ...but rather about TEAMS being required to obtain players in a certain fashion in order to have additional opportunities - which is what the CBA actually says and does.
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Post#89 Re: Possible Arbitration on Bird Rights after
Wed Jun 27, 2012 6:15 am by gelek

DBoys wrote:What issue do you think I've changed? And what do you think is moot?

I have read the rules and examined the terminology first-hand, and to me the meaning of "only by trade" is clear wording. Always was, and still is. We all know what an NBA trade is, and we know that waivers and trades are different.

So I thought from the outset, before we knew the text of his ruling, that the arbitrator may have gone away from the CBA and ruled based on what he thought it "should say" rather than what it actually says.

Now that we have more info, I do see where he makes an issue of the meaning of the word "trade" but to me that's a stretch in trying to create ambiguity where none exists. And the bulk of what I have read of his ruling (I haven't been able to find the actual full text online) focuses on issues of "should say" rather than allowing the document to speak for itself. Just as I feared, in other words.

In light of that, if that's all he has, then yeah I've progressed from curious, to being in favor of his (what I see as) convoluted reasoning being overturned and things going back to the obvious intent in the CBA as written. My thoughts haven't changed - except, now that I know his reasoning, I see nothing worth a bucket of warm spit to validate the result..

So now it's clear to me that the arb made a ruling that went far afield, since "only by trade" is simple-to-follow wording. But he can do that, so I'm offering thoughts on what the league can do to foreclose the ability for the NBPA to make this about "rights" of players rather than about processes for teams to follow.

You do follow that the arb ruling was effectively meaningless and that as we stand, nothing has changed and the next round will start all over with a brand new consideration of the arguments, right?

In that context, I'm now taking a look at what he asserts and where he comes from, and also the stuff from d-train, and opining about the best approach for the NBA that might ensure a more rational verdict on appeal.

As I read what he says, and read what d-train writes, it appears to me much of the argument is based on a repeated recasting of the CBA's provisions into an analogy that isn't accurate ...and worse, it's one that if taken to its conclusion, leads to rulings and "should have said' approaches from left field like this. That's why I am opining that if the NBA wants a greater chance of success in the appeal process, it should focus on moving the terminology back to something more precise, where this is an argument not about the league giving something to players (and then taking it away) or about players earning something (and then it being taken away), which are ideas not within the CBA ...but rather about TEAMS being required to obtain players in a certain fashion in order to have additional opportunities - which is what the CBA actually says and does.


I don't know how the american common sense law works, but intuitively shouldn't the appeal have other dynamics then the first arbitration? The arbitration was basically two parties asking for clarification of a matter, something were both are on equal footing. Now that we have an appeal, shouldn't it be usually that the burden of proof falls on the side arguing the appeal? I.e. shouldn't it be on the leage to prove why the unions argumentation is wrong? And since the contract definition argument is very hard to disprove (saying we didn't mean that isn't enough) there is enough leeway to assume that the wording ("traded player" with further exclusion of waived player vs. "by means of a trade") was indeed intentional.

Contract law lawyers are so expensive for a reason, they should make things like that tight-knit and not fail with semantics. If nothing else this is a huge blunder from whoever wrote that passage.

As for what you changed, initially you argued that this issue will be resolved in the leagues favor because it's simply "letter of the law" vs. "spirit of the law" and that in your mind (and probably rightfully so, don't know the specifics in the cba about arbitration) the arbitrator has no leeway to interpret the spirit.

But now it turns out that the Union very much argued with the letter of the law and the fact that the wording of what exclusions of rights are there is distinctively different in regards to QVFA exceptions then for say TPE.

So you start to fuzzy the wording as it benefits you, creating a superset called "only by trade" instead of the two subsets "traded player" and "means of a trade". Then you start arguing that the League should fight this on the basis of a PR-Campaing where they should try to make it look like the Knicks are trying to cheat the system.

I'm biased because I'd like the Knicks to get more flexibility, but here's the main points that I think decides this:

- I think the issue was never considered, not because they didn't want to discuss it but they just plain didn't think of it since it seems unlikely that a waiver-pickup becomes valuable enough that his bird-rights have an influence
- I think that arguably there can be made a stance for a player being given the same privilige after his contract expires if he did everything to honor it if he's a waiver-pickup than if he was never waived.
- I DO agree that once a player clears the waiver procedure, his "bird clock" should reset, so in Novak's case I don't think he should be available to sign with the knicks while using early bird rights.
- I do think that under contract definition arguments "traded players" and "by means of a trade" doesn't necessarily have to be the same thing, especially if one instance has a qualifier which the other does not.

So the question is:
- is the difference of wording in the two places enough leeway to necessitae an interpretation
- can the interpretation be made that from the spirit of the law a waiver pickup is similar to a trade

so you see the avenue for the interpretation of the spirit of the law is actually introduced in the cba (that is if the difference in wording counts as unprecise or distinctively different enough).

So I think the Union has a great shot at winning this.

From a homer perspective I do hope for some kind of settlement where they addend the cba effective from the next offseason or such since otherwise the appeal process can just be misused to deny the players their rights, in essence rendering a judgement useless (a very dangerous slope btw since this would leave things open for a) an injunction from the union against the free agency and b) damage claims from the knicks since they were unfairly "weakened" by the appeal process)
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Post#90 Re: Possible Arbitration on Bird Rights after
Wed Jun 27, 2012 7:30 am by DBoys

Apparently you misunderstand what I've said.

1 You said - "So you start to fuzzy the wording as it benefits you, creating a superset called "only by trade" instead of the two subsets "traded player" and "means of a trade" "

I wasn't trying to create anything new. When I said "only by trade" rather than "only by means of trade" it wasn't an attempt to revise anything, but was rather the shorthand one uses when typing the same quote over and over online. Sheesh. I also typed "arb" for arbitrator, but I wasn't creating a new person by doing so. If the fact I elided words here or there in an attempt to save time typing and it confused you, it wasn't intentional.

2You said - "Then you start arguing that the League should fight this on the basis of a PR-Campaing where .."

Again you've misunderstood. None of this is about PR. What I was suggesting was a better approach for the NBA in the next round of arbitration over the matter, the one that matters ...I'm saying "This time, NBA, be more precise with the way you allow the issue to be framed. Make the discussion stick to the CBA's actual concepts rather than analogies that don't exist with the document."

---

I understand your arguments, though I happen to disagree. I think when a team is told they get extra flexibility if they acquire a player "only by means of trade" that they would never have been puzzled over whether this meant by means of waiver ...and therefore, further definition would have been redundant.

As for the idea that there was some import to wording being different in two places, I think he's quibbling over a meaningless difference in synonymous terms. It's also crucial to note that where each term appears it's chosen precisely - with "Traded Player" being reserved for (and only for) sections of the CBA that pertain to the "Traded Player Exception," and apart from that context the idea of a trade is always referred to as a "trade" (all other places, and those are many). With that understanding, by using the word "trade" in this rule to refer to what we know as a trade, they used exactly what they should have used to be consistent (and therefore to communicate meaning in the proper fashion).

Therefore his assertion that "only by means of trade" might have better been worded "Traded Player" is inconsistent with the usage in the rest of the CBA, and his ensuing assertion that "trade" is therefore somehow a term meant to include the waiver process is in my view an imaginative idea he's adopted.

As for whether the ruling was based on the letter or spirit of the law, an essential argument he gave for his ruling was his assertion that a waiver pickup was LIKE a trade in some ways, therefore it had to be treated like one (no matter the CBA's wording) ...and that's entirely an imposition of "what we wish it said" rather than simply deferring to the doc's actual wording ...and combined with the weakness of the idea that what constitutes a "trade" is somehow fuzzy to everyone in the NBA circles, I believe he worked backward from "this is what I want the rule to say" to "let me find some excuse to rule that way."
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Post#91 Re: Possible Arbitration on Bird Rights after
Wed Jun 27, 2012 10:35 am by d-train

DBoys was right about one thing. The literal wording of the CBA rather than arguments about the intended agreement persuaded the arbitrator. At least that is how it went according to Feldman who seems to have access to the details of the case.

The NBPA argument was the agreements literal wording "by means of trade" has to be strictly adhered to. And, a waiver assignment is a trade between 2 NBA teams. The assignor receives cash and is relieved of a contractual obligation. The assignee receives a player. Both teams have to be motivated to deal by consideration or there is no trade.

The NBA argument was that a waiver claim isn't a trade because the NBA doesn't call it a trade. They call it a waiver claim. And, if the agreement intended waiver claims to be included, the agreement would have said "by means of trade or by means of waivers."

The arbitrator decided that if the NBA wanted to exclude a type of trade they had to do it in the CBA. The arbitrator even pointed out that the CBA defined "Traded Player" as a player assigned by trade other than waivers and could have defined "Trade" to exclude trades by waiver if that was the agreement.

The NBA argument was based on what they believed was the intent of the agreement and the arbitrator was not convinced. In fact, the arbitrator said he believed the intent of making players wait for bird rights was to close a loophole that allowed players to change teams by signing short 1-year agreements followed by a longer-term big contract that allowed their team to exceed the salary cap. And, the bird rights loophole doesn’t apply to trades because the player doesn’t control trades.
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Post#92 Re: Possible Arbitration on Bird Rights after
Wed Jun 27, 2012 3:34 pm by DBoys

d-train wrote:... the CBA defined "Traded Player" as a player assigned by trade other than waivers and ...


The CBA does NOT use the phraseology "assigned by trade other than waivers" - and properly so, since waivers is not a form of a trade. Edit - And neither does the arbitrator, so your argument based on nuances of non-existent wording is a non-starter of an argument.

"the arbitrator said he believed the intent of making players wait for bird rights" ...<. If the arb based his ruling on the players getting or not getting something, he was far afield and creating his own CBA concepts from his own imagination. The players don't "get Bird rights" or any "rights" at all in the situation in question. They are not waiting for something to be bestowed. The issue is whether a team might or might not get more latitude in signing a player.

"The NBA argument was based on what they believed was the intent of the agreement"...Again you make things up that are not factual. The NBA's argument is that their view is based on the obvious MEANING of the document itself, using the word "trade" in the same way it is always used in the NBA world, and that trying to insert something different for its meaning is nonsense.
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Post#93 Re: Possible Arbitration on Bird Rights after
Thu Jun 28, 2012 1:17 am by Dunkenstein

In the definitions section of the CBA it states: (qqq) "Traded Player" means a player whose Player Contract is assigned by one Team to another Team other than by means of the NBA waiver procedure.

This definition has been in every CBA since 1999.

Further, at no time does the arbitrator use the phrase "assigned by trade other than waivers" in his ruling. In fact he quotes the definition of "Traded Player" which I opened with.

The arbitrator does point out that: "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.' "

As an aside, it's interesting to note that prior to the 2005 CBA, what the CBA now refers to as the "Traded Player Exception" was called the "Assigned Player Exception".
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Post#94 Re: Possible Arbitration on Bird Rights after
Thu Jun 28, 2012 4:12 am by DBoys

Thanks for that factual information.

Is the full text of the arbitrator's ruling available online anywhere? I've looked for it without any luck.
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Post#95 Re: Possible Arbitration on Bird Rights after
Thu Jun 28, 2012 4:44 pm by Dunkenstein

The N.B.A. and its players union are moving toward a settlement in the so-called Bird rights case that has temporarily clouded the future of the Knicks’ Jeremy Lin, according to two people briefed on the talks.

The most likely outcome is that Lin and three other players — including the Knicks’ Steve Novak — will retain some form of Bird rights, as affirmed last week by an arbitrator, according to one of the people briefed on the talks. But the talks were continuing Thursday, and the details of a settlement remained in flux.

An announcement could be made as soon as Friday, but no later than Saturday night, so that the affected players and their teams will have clarity before the free-agent period opens, at 12:01 a.m. Sunday.

http://www.nytimes.com/2012/06/29/sport ... .html?_r=1
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