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MarionDeputy
11-22-2004, 08:18 PM
I have never talked about my full time job on this board. As was pointed out in a big discussion last year, I am a Reserve Deputy not a full time one. My full time job is working for a quasi-governmental agency. One that has over 500 union employees. I work in the Human Resources department and have sat in and participated in both bargaining contracts and arbitration concerning discipline matters. Although I don't pretend to be an expert on the subject I can't shake the feeling that David Stern has made some mistakes that will cost him dearly in arbitration. I will do my best to explain my thoughts, I am not the greatest writer. Also I will officially place a waiver on my opinon, with this being such a huge national event that could trump any of my arbitration arguments and that I have never seen any official "Code of Conduct" from the NBA.

With that said:

1. First lets start with the arbitrator. Most arbitrators are picked exactly like a jury system with both sides getting challenges to remove a certain arbitrator from the pool that they feel would not be in favor of their systems. The results of these challenges is supposed to leave the most "middle of the road" impartial type person. In this case I feel that the management will have the advatage. The fact that most arbitrators are senior lawyers or judges means that they will be more educated and possibly more sophisticated. Those types of people will be much more inclined to understand Sterns view of the situation. Hope for a closet NBA fan here!!

2. Progressive Discipline & Past Practice - I think the players will have the advantage here. Most code of conducts are based on progressive discipline, meaning that you usually have a tiered system of sanctions starting with usually a minor penalty and working your way up to the most serious as infractions are repeated. Obviously in all cases there are certain actions that will trigger serious sanctions upon there first offense and I am sure this will be one of them. However the NBA has showed a gross deviation from past penalties for similar events. Most of the past transgressions have shown 10 game suspensions or less for fighting with fans or non participants. With most of the suspensions doubling and tripiling the norm without giving prior notice, the Union can make a good case that the penalties are excessive and not consistent with past penalties. I do agree with the idea that Stern made the penalties that stiff knowing that they would be challenged and possibly reduced.

3. Swift Investigations- This is one that will normally really set an arbitrator against management. If its obvious to an arbitrator that a management investigator/disciplinarian (stern) does not complete an accurate investigation before dealing stiff penalties,they normally will side for the worker. In this case I think you can make a good case that the decision was very quick, the NBA could not have possibly spoken to all the Pacers players, coaches and staffs. Obviously the Pacer's players will use their fear of being injured as a defense, if management did not hear about these concerns or ignored them simply to met out swift penalties, they will most likely suffer for it. I can think of a case where we investigated an incident for over a month to determine if an employee attempted to steal some company assets. Advantage players.

4. Sending Messages, Personal Feelings - One of the worst things management can do is to allow their discipline to become personal. Once it does it shows an arbitrator that there could be more than just representing the managements interests, but that you may be representing your own personal ones and attempting to circumvent the code of conduct that you have agreed on. In my opinion this was obvious in David Stern's "1-0" vote comment.

I personally feel that the all of the sanctions were over the top, in a typical Union Vs. Management situation, I think this type of excessive discipline that is not specifically spelled out would see an employee returning to work with back pay. In this case with it being such a national event I'm not sure what effect it will have.

The last and most important thing to remember is arbitrations are mini-negotiations, the most sucessful arbitrators are the ones that can get both sides to make some concessions. What form those concessions take no one can guess at this time. But I would not be surprised to see an offer of reducing the JO and JAX suspensions in lieu of not reducing the Artest one. Of course this is dependant that either side wants to negotiate or just go all or nothing.

My best guess: Artest will be back before the end of the season and the JO/JAX suspensions will be reduced by 10 or 15 percent. But to quote a famous comedian "I could be wrong" ;)

Kstat
11-22-2004, 08:25 PM
That was a very lucid, consise post.

That said, its all moot.

The union filed a grievance, but under the current CBA, the arbitrator is DAVID STERN.

Sprewell got his suspension reduced because his incident happened off the court, outside of an NBA arena. Therefore, he was allowed to seek an outside arbitrator.

Artest's incident occured during a game, so he has the final say over anything that happens, and any appeal.

The appeal was a formality. The most Billy Hunter can do is get down on his knees and beg for leniency.

MarionDeputy
11-22-2004, 08:43 PM
That was a very lucid, consise post.

That said, its all moot.

The union filed a grievance, but under the current CBA, the arbitrator is DAVID STERN.

Sprewell got his suspension reduced because his incident happened off the court, outside of an NBA arena. Therefore, he was allowed to seek an outside arbitrator.

Artest's incident occured during a game, so he has the final say over anything that happens, and any appeal.

The appeal was a formality. The most Billy Hunter can do is get down on his knees and beg for leniency.


Like I said I'm not familar with the players contract or their code of conduct, but I have never seen a contract between labor and management where the person who mets out the discipline is the same guy who hears and finalizes the decison. Whats the point of filing a grievance than and having a contract? If thats true, that would be my argument in a lawsuit forcing outside arbitration. If it is true I find it disgusting that there is not an appeal process for this totalitarian dicipline. Doesn't the NFL and Baseball use outside arbitration?

ABADays
11-22-2004, 08:55 PM
I thought individuals were asured of due process. If it's denied, I would think the courts could step in to make certain there was such a mechanism.

Kstat
11-22-2004, 08:56 PM
That was a very lucid, consise post.

That said, its all moot.

The union filed a grievance, but under the current CBA, the arbitrator is DAVID STERN.

Sprewell got his suspension reduced because his incident happened off the court, outside of an NBA arena. Therefore, he was allowed to seek an outside arbitrator.

Artest's incident occured during a game, so he has the final say over anything that happens, and any appeal.

The appeal was a formality. The most Billy Hunter can do is get down on his knees and beg for leniency.


Like I said I'm not familar with the players contract or their code of conduct, but I have never seen a contract between labor and management where the person who mets out the discipline is the same guy who hears and finalizes the decison. Whats the point of filing a grievance than and having a contract? If thats true, that would be my argument in a lawsuit forcing outside arbitration. If it is true I find it disgusting that there is not an appeal process for this totalitarian dicipline. Doesn't the NFL and Baseball use outside arbitration?

Well, Ron ARtest has already signed an agreement saying he CAN'T seek outside legal arbitration.

The players' union signed that agreement in 1998.

Ron Artest signed his name to the players' union.

Therefore, he agrees to abide with everything they abide by.

Plain and simple, his hands are tied.

MarionDeputy
11-22-2004, 09:31 PM
That was a very lucid, consise post.

That said, its all moot.

The union filed a grievance, but under the current CBA, the arbitrator is DAVID STERN.

Sprewell got his suspension reduced because his incident happened off the court, outside of an NBA arena. Therefore, he was allowed to seek an outside arbitrator.

Artest's incident occured during a game, so he has the final say over anything that happens, and any appeal.

The appeal was a formality. The most Billy Hunter can do is get down on his knees and beg for leniency.


Like I said I'm not familar with the players contract or their code of conduct, but I have never seen a contract between labor and management where the person who mets out the discipline is the same guy who hears and finalizes the decison. Whats the point of filing a grievance than and having a contract? If thats true, that would be my argument in a lawsuit forcing outside arbitration. If it is true I find it disgusting that there is not an appeal process for this totalitarian dicipline. Doesn't the NFL and Baseball use outside arbitration?

Well, Ron ARtest has already signed an agreement saying he CAN'T seek outside legal arbitration.

The players' union signed that agreement in 1998.

Ron Artest signed his name to the players' union.

Therefore, he agrees to abide with everything they abide by.

Plain and simple, his hands are tied.

Respectfully KSTAT I think your wrong. I just read this from the Player's Associations CBA:


(c) In any Grievance that involves an action taken by the Commissioner (or his designee) concerning (i) the preservation of the integrity of, or the maintenance of public confidence in, the game of basketball, and (ii) a fine and/or suspension that results in a financial impact to the player of more than $25,000, the Grievance Arbitrator shall apply an "arbitrary and capricious" standard of review

That means an arbitrator is used for any fine or finacial impact to a player of more than 25 grand. Which in the cases of our players is true. Notice that this does not mention on-court stuff.



[quote]Section 8. Special Procedure with Respect to Player Discipline.


(a) Any dispute involving (i) a fine or suspension imposed upon a player by the Commissioner (or his designee) for conduct on the playing court (regardless of its financial impact on the player), or (ii) action taken by the Commissioner (or his designee) concerning the preservation of the integrity of, or the maintenance of public confidence in, the game of basketball resulting in a financial impact to the player of $25,000 or less, shall be processed exclusively as follows:


(i)Within twenty (20) days following written notification of the action taken by the Commissioner (or his designee), a player affected thereby or the Players Association may appeal in writing to the Commissioner.

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

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

(iv) In the event such appeal involves a fine or suspension imposed by the Commissionerís designee, the Commissioner, as a consequence of such appeal and hearing, shall have authority only to affirm or reduce such fine or suspension, and shall not have authority to increase such fine or suspension.
(b) In the event a matter filed as a Grievance in accordance with the provisions of Section 2(d) gives rise to issues involving the integrity of, or public confidence in, the game of basketball, and the financial impact on the player of the action being grieved is $25,000 or less, the Commissioner may, at any stage of its processing,
order that the matter be withdrawn from such processing and thereafter be processed in accordance with the procedure provided in
Section 8(a).

Now this section is poorly written and I am assuming this is the part to which you are referring to. Notice it does not define "On-Court" whatsoever. By the letter of the law Artest did nothing "on court" except punch the fans that were moving to attack him. The other stuff took place in the stands. I know its nit-picky but if I was Ron I would push it as far as I could.

Stryder
11-22-2004, 10:09 PM
The lesson here: Beat your wife and do illegal drugs to your hearts content, but FOR GOD'S SAKE pretend to be a good guy on TV.

Ain't that the truth!

obnoxiousmodesty
11-22-2004, 10:23 PM
Well Billy Hunter was on TBDSSP tonight and he said he's going to do all he can to get the suspensions reduced, up to and including going to U.S. District Courts. I was encouraged by this emphatic support of the players involved. He expects to begin the appeals process in the next 24-48 hours.

3Ball
11-22-2004, 10:31 PM
I still think that the only guy that could get these reduced is Lary Bird. If he put his neck out and went all out to get these reduced, then I think that the NBA community will go along. Whether he's willing to lay down all those years of good will for the likes of Ron Artest remains to be seen.

pb777
11-22-2004, 10:36 PM
Is billy hunter the president of the players union? I know this is common knowledge so pls dont clown me for not knowing:confused:

MagicRat
11-22-2004, 10:56 PM
Is billy hunter the president of the players union?

:nod:

Outlaw
11-22-2004, 11:01 PM
That was a very lucid, consise post.

That said, its all moot.

The union filed a grievance, but under the current CBA, the arbitrator is DAVID STERN.

Sprewell got his suspension reduced because his incident happened off the court, outside of an NBA arena. Therefore, he was allowed to seek an outside arbitrator.

Artest's incident occured during a game, so he has the final say over anything that happens, and any appeal.

The appeal was a formality. The most Billy Hunter can do is get down on his knees and beg for leniency.


I believe Kstat is right on this one because it happened during a game that was still in progress at the time therefore is considered an on court incident.

McKeyFan
11-22-2004, 11:43 PM
I'm not a lawyer, but I'm thinking some of these these can be challenged--like the previous suggestion that if the constitutional right to due process is denied than a contract is voided.

I think its possible that challenges haven't occured on a large scale because everyone has sort of played the "decent and civilized" game for the sake of the game. But when the gloves come off, then, possibly, things change on a legal level.

How bout if Ron and/or Birdlisle and/or JO-Jax decided to start their own league? THAT would provide some leverage on Stern.

P.S. This new league could actually call traveling.

BrooklynJosh
11-22-2004, 11:46 PM
letterman just said it was all the fans fault.

he should be the commissioner.

LouisvilleLip
11-22-2004, 11:48 PM
Doesn't that defeat the whole purpose of what an arbitrator is?

Isn't it supposed to be an outside judge so you will get an unbiased decision/opinion?

Baffles me.:confused:

McKeyFan
11-22-2004, 11:58 PM
(double post)

Arcadian
11-23-2004, 12:52 AM
Kstat is correct most don't think arbitration will help...

This is why Hunter mentioned the courts. I expext that the Players Union will file/threaten to file an unsafe work place suit or the like.

Stern actions will have the PU seeking to put a limit on the Comish's power. There is a battle brewing. Artest might be done for the season but the Union will do all it can so this won't ever happen again.

Kstat
11-23-2004, 12:54 AM
Kstat is correct most don't think arbitration will help...

This is why Hunter mentioned the courts. I expext that the Players Union will file/threaten to file an unsafe work place suit or the like.

Stern actions will have the PU seeking to put a limit on the Comish's power. There is a battle brewing. Artest might be done for the season but the Union will do all it can so this won't ever happen again.

Yeah, that kind of lawsuit won't affect the suspensions at all, all they can do it sue for money and stricter protection.

Keep in mind, David Stern is a very successful lawyer himself. Deafeating NBA players in the courts is nothing new to him. In the 1970's he was able to keep connie Hawkins out of the NBA, until facts came out later that proved him innocent. He knows eash clause word for word, and I'm sure he made sure there weren't any loopholes for this kind of thing.

Arcadian
11-23-2004, 01:08 AM
I'm fine with Ron being done for the season. But if it does get reduced it will be because a deal is cut using the laws suits as leverage.

Either way it shakes out for Ron this summer Stern will be in a fight with the Union. I'm not sure Stern will make it out unscathed.

Steveman
11-23-2004, 02:22 AM
I'm fine with Ron being done for the season. But if it does get reduced it will be because a deal is cut using the laws suits as leverage.

Either way it shakes out for Ron this summer Stern will be in a fight with the Union. I'm not sure Stern will make it out unscathed.

I agree. No one should be allowed to command such absolute power in this country ... just plain absurd. Not even the president has that much power. Stern and his policies need swept out the door.

Outsider
11-23-2004, 11:48 AM
Here is a scary thought... What if Stern felt that the fact some player's shirt was untucked during the game was grounds for a 10 game suspension. With the way this is being played out the player would have no way to fight the suspension. Because Stern is the end-all-say-all of what happens on the court he dosen't have to give his reasons, but merely issue the suspension.

This doesn't sound right but is exactly how I see his power being...am I wrong?

McKeyFan
11-23-2004, 03:04 PM
Maybe Stern knew his unilateral suspension powers would be reigned in at the next negotiation. Knowing that, he went ahead and blew his wad on Ron while he had the chance.

Gyron
11-23-2004, 04:21 PM
No matter what happens, I think the next contract the players union signs with the NBA is going to have some changes in it due to this exact situation where stern has absolute power, with the players having no right of appeal.