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)