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ChicagoJ
12-16-2004, 03:30 PM
Arbitrator Could Reduce Pacers' Suspensions




By Greg Sandoval
Washington Post Staff Writer
Wednesday, December 15, 2004; 4:31 PM

An abritrator in New York could decide as early as Friday to reduce the suspensions of three Indiana Pacers involved in the Nov. 19 brawl with fans in Auburn Hills, Mich. Should he rule against the NBA, the league may have little hope of reversing the decision, according to a prominent labor lawyer.

The NBA players' union argued during a hearing last week before arbitrator Roger Kaplan that the suspensions of Ron Artest (73 games), Jermaine O'Neal (25 games) and Stephen Jackson (30 games) handed down by NBA commissioner David Stern were excessive. The three players were videotaped throwing punches at fans at the end of the Pacers' victory over the Detroit Pistons.

The NBA refused to participate in last week's hearing, claiming that the players union agreed in the current labor contract that Stern would have the final word for on-court disciplinary matters, a risky move according to legal experts.

The league filed a complaint in federal court, maintaining that Kaplan had no jurisdiction in the matter. But according to labor lawyers, once an arbitrator rules, the federal courts almost never overturns their decisions.

"The nice thing about arbitration, from the employee's view, is that it's effectively unreviewable," said Neal Mollen, who heads the employment law department for the Paul Hastings law firm in Washington. "The courts have shown an enormous reluctance to overturn arbitration decisions. It happens but it's extremely rare."

Should Kaplan reduce the suspensions and the courts decline to overturn his ruling, then it's conceivable that Artest could return this season.

The NBA and players' union could have avoided the legal fight had Stern and NBA players' union executive director Billy Hunter fostered a better working relationship, said a player agent who requested anonymity.

By handing down unprecedented punishments, Stern pushed Hunter into a corner, the agent said, adding that in a year when the league and union must hammer out a new collective bargaining agreement, Hunter had no choice but to go to war on the issue. Had he not, the former federal prosecutor would have appeared weak to some of memberships' hardliners, he believes.

But by fighting Stern's decision, and possibly winning a reduction, Hunter and the league risk further alienating fans, the agent said. "The two of them should have gone somewhere quiet and hashed out a compromise," said the agent, who represents multiple NBA players.

"The union could have agreed not to fight if the league agreed to go soft on O'Neal and Jackson. Something. But fighting it out only hurts the game in the eyes of the fans."

. . . Los Angeles Lakers guard Kobe Bryant paid $40 million to get out of his Adidas shoe contract, and many of his other endorsers, such as McDonalds and Nike, have complained that Bryant and his agent, Rob Pelinka, were difficult to work with and "high-handed," according to the Los Angeles Times. Bryant last week fired a fusillade of accusations at former teammate and mentor Karl Malone. Bryant claims that Malone has made unwanted sexual advances at Bryant's wife, Vanessa. In the past three years, Bryant has become estranged with a long list of former teammates, friends and family, including his parents, sisters, Shaquille O'Neal, and Phil Jackson.

. . . The NBA has said there is no truth to the theory offered by Chicago Bulls operations chief John Paxson that referees are less likely to send teams without all-stars to the foul line, the Chicago Sun-Times reports. Paxson argues that his team gets fewer calls, as do other NBA teams that lack a recognizable all-star."They call it a myth that the four teams without all-star players don't get calls," Paxson said. "So I have to trust that they're telling everybody the truth. But it's hard to watch night in and night out when you feel like there are calls throughout the game that go one way, then at the end of the game they tend to go another."

In Monday night's 94-93 loss to the Dallas Mavericks at the United Center, Mavs All-Star Dirk Nowitzki made more free throws (13) than the Bulls attempted (12).

. . . LeBron James tells the Cleveland Plain Dealer that one area of his game is more important to him than high-flying dunks and dizzying moves to the basket.

Steals.

James averages 2.62 steals a night, third in the league behind the Washington Wizards Larry Hughes (3.17) and the Indiana Pacers' Jamaal Tinsley (2.75).

He hopes teams will overlook that skill, so he "can try to lead the league in steals," James said. "It's just instinct. I put myself in the right position to get that steal. I get a big one every game."

James sealed a victory for the Cavaliers when he snatched a pass away from the Memphis Grizzlies on Monday and scored on a dunk.

"I told coach right before that play happened that I was going to get a big steal," said James, last season's rookie of the year winner. "And when I came off the court I said, I told you coach, I was going to get it.' A steal is a momentum changer."

. . . Conventional wisdom had it that the loss of the Avalanche in the NHL lockout would be a boon to the drawing power of the Nuggets, especially to their television ratings. So far, it has been the opposite, says the Denver Post.

Ratings for Nuggets games on the new Altitude network are down 39 percent from the same point last season, when Fox Sports Net broadcast the games. Figures from Nielsen Media Research Data show the Nuggets averaged a 1.9 rating through the first 15 broadcasts on Altitude. The first 15 Nuggets games broadcast by FSN last season drew a 3.1 average rating. Each ratings point equals approximately 14,000 metropolitan Denver households.





2004 The Washington Post Company
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http://www.washingtonpost.com/ac2/wp-dyn/A1930-2004Dec15?language=printer

Will Galen
12-16-2004, 03:42 PM
I think Kaplan will rule that he has the authority and that the suspensions were excessive. I think JO and Jackson will be back before the end of the year and Artest by the all star break if not as early as the other two.

recap
12-16-2004, 03:44 PM
This article makes it sound like the NBA made a mistake by not getting an injunction before the hearing. Interesting. Any lawyers out there have a take on this?

LAPacer
12-16-2004, 03:44 PM
Saweeeeeet!!! I hope they rule as soon as possible. It would suck if they ruled to lessen the suspension for O'neal 24 games into his suspension.

Doug in CO
12-16-2004, 03:45 PM
Why do we not get this from the Star?

Doug in CO
12-16-2004, 03:46 PM
I think Artest will be reduced to 50 or 60. I personaally would not reduce Jax - and O'Neal perhaps 20.

ChicagoJ
12-16-2004, 03:53 PM
Will, do you think the courts, who have moved quickly in order to rule in favor of Stern in the past, would issue an injunction forcing the league to abide by the arbitrator *that quickly*?

Have they even set a court date for a hearing on the initial motion yet?

This is what the so-called experts quoted above are missing: the dispute to be settled by the courts isn't about overturning whatever ruling Kaplan may announce. The dispute is whether Kaplan's ruling is any more binding on the league than any ruling made by, say... me. That's why the NBA didn't participate.

If the courts rule Kaplan has jurisdiction, which is not a slam-dunk, I predict the courts would throw out the original session and force them to repeat the hearing as to whether the suspensions should be reduced with the league's representation present.

ChicagoJ
12-16-2004, 03:57 PM
This article makes it sound like the NBA made a mistake by not getting an injunction before the hearing. Interesting. Any lawyers out there have a take on this?I wouldn't bank on that. Stern's a fairly bright lawyer. The league is not going to lose on a protocol issue.

The league had already filed a complaint stating that Kaplan doesn't have jurisdiction. All they did was choose not to have a restraining order preventing Kaplan from having a meeting with Billy Hunter and the Union's lawyers until after the courts heard that particular case.

Kstat
12-16-2004, 04:19 PM
I wouldn't bank on that. Stern's a fairly bright lawyer. The league is not going to lose on a protocol issue.

The league had already filed a complaint stating that Kaplan doesn't have jurisdiction. All they did was choose not to have a restraining order preventing Kaplan from having a meeting the Billy Hunter and the Union's lawyers until after the courts heard that particular case.

So basically......the only reason the players were able to meet with the arbitrator AT ALL, was because Stern allowed them to?

Ouch.

I guess he wouldn't have done that if he thought it could hurt him....

In any case, I;m guessing Stern figures that by the time all the litigation and appeals are over, both JO and Jax will have already served their suspension, and it will only become an issue of lost salary......it will basically be the union fighting soley on Artest's behalf, and he's got a longer shot at leniency than JO....

3Ball
12-16-2004, 04:57 PM
The only way Stern will allow them back is if he can make it somehow look like "the lawyers" forced him to. That said, I think he would LOVE it if Artest came back. He tried to apply the death penalty for the Pacers for the publicity. Well, think of the publicity that Artest returning would draw. And he could blame it on those darn lawyers.

Unclebuck
12-16-2004, 04:59 PM
Interesting article, I dont want to get too excited or anything. I think it would have ben better for all concerned, I mean evryone if the league and the players union worked together on this

sixthman
12-16-2004, 05:14 PM
Don't think the article gets into conjecture about how long it would take the Courts to decide something, if the arbritrator rules in the players favor. I have read the decision might not take as long as one might think, but we are still looking at a January decision which would not help JO or Jack much.

ChicagoJ
12-16-2004, 05:22 PM
But if the decision doesn't take too long, its because the courts have previously sided with the league. For the arbitrator to actuallay accomplish anything, its going to require the entire appeals process before Stern lets Artest back on the court.

ABADays
12-16-2004, 05:46 PM
I'm impressed fellas. Well, thought out responses. I would have nothing to add except maybe my usual "uhhh . . . derrrrrr . . . ummmmmm screw Stern".

Bball
12-16-2004, 06:33 PM
I thought the NBA made a mistake in not appearing in the argument whether the arbitor could hear the appeals.

Isn't that what that process is for? Wasn't there first a hearing where is it was to be decided whether the arbitrator had jurisdiction here? I'm not looking at the CBA but it seems the NBA, by not putting up a fight to that, pretty much gave that to the players. I think the court would find against the NBA on that issue on a common sense basis. "You chose not to fight it then. You refused your bite of the apple. You had your chance and chose not to participate. There's no compelling reason for us to revisit that now. The arbitor made his decision on the basis of the facts as presented to him, and you made a decision not to appear"

Of course there is no guarantee the arbritrator will find that he could actually hear the player's appeal.

OTOH, the players had a two pronged argument (AFAIK) that was:
1- This was an 'off' court incident
2- That the wording of the contract is actually not what is meant/intended.

In the case of 2... that is weak.... Unless the other side doesn't appear at the hearing to refute it!

There is always the chance Stern knew of the issue I am speaking too (well, there's the chance I am wrong too ;) ) and this is a backdoor way to appear tough but allow the suspensions to be cut. "I tried to rule with an iron fist and the courts interferred this time"

-Bball

sixthman
12-16-2004, 06:39 PM
There is always the chance Stern knew of the issue I am speaking too (well, there's the chance I am wrong too ;) ) and this is a backdoor way to appear tough but allow the suspensions to be cut. "I tried to rule with an iron fist and the courts interferred this time"

-Bball

I'd accept that scenario. ;)

Arcadian
12-16-2004, 06:43 PM
I think Stern is less concerned about the suspensions holding up than he is about maintaining his committee of one in deciding these matters. If the players win there will be a precident for the union going around Stern.

Lord Helmet
12-16-2004, 06:47 PM
Well when I first read this article I got the impression that the suspensions would be reduced.But now after reading a lot of peoples replies :( IMO I think J.O. should get 10 Jack 20 Artest 35-40.If the suspensions have a chance to be reduced they need to hurry up or else it won't even matter with J.O.'s and Jack's.

BigMac
12-16-2004, 07:35 PM
This article makes it sound like the NBA made a mistake by not getting an injunction before the hearing. Interesting. Any lawyers out there have a take on this?

My brother is a Washington D.C. big time attorney. Here is his response to this information for what it is worth-very good information and explanation to what we may see coming up.


"The law on arbitrations is essentially that you cannot get court review of an arbitration decision except on very narrow grounds. One of those narrow grounds, however, is where the arbitrator did not have the authority to make the ruling. (Arbitrations are creatures of contract; all parties have to have agreed to arbitration to give an arbitrator any power.) Here, the NBA will argue in federal court that the Collective Bargaining Agreement (the contract) does not provide for arbitration of these sorts of disputes. That argument will still be available to the NBA."

Makes sense.

ChicagoJ
12-16-2004, 07:41 PM
Let's revisit exactly what Granik/ The NBA said when it chose not to get a TRO against the hearing last week:

Associated Press

NEW YORK -- The NBA informed the players' union Sunday it will not seek a temporary restraining order in federal court, clearing the way for a grievance hearing over suspensions for the Pacers-Pistons brawl.

Arbitrator Roger Kaplan will preside over the hearing Thursday and Friday at a Manhattan law office. Suspended players Ron Artest, Jermaine O'Neal and Stephen Jackson are expected to attend. Artest was sidelined for the season, Jackson for 30 games, and O'Neal for 25 for fighting with fans Nov. 19.

The NBA has already filed a lawsuit in U.S. District Court challenging Kaplan's authority to hear the grievance, and the league was expected to try Monday to prevent the hearing from going forward.

But in phone calls Sunday between attorneys for the two sides, the league told the union it would not be seeking a restraining order.

"Our position hasn't changed. We've started a proceeding in federal court, and it will remain pending while we see what the arbitrator does," NBA deputy commissioner Russ Granik said.

The union categorized the league's decision as a significant change of course.

"Our goal all along has been to secure a hearing on the merits of the case as soon as possible. Now, the last impediment from that happening has been removed," union spokesman Dan Wasserman said.

Kaplan must rule on two issues: Whether commissioner David Stern's penalties can even be appealed to an arbitrator, and the underlying matter of whether the commissioner had just cause for some of the longest fight-related suspensions in league history.

The league contends the commissioner has sole authority to discipline players for on-court behavior -- and is the only avenue of appeal.

Indiana's Anthony Johnson, who has already served a six-game suspension, also is contesting his punishment.

Granik said that because the league does not want to forfeit its right to possibly challenge Kaplan's eventual ruling in federal court, it will not take part in the first segment of Thursday's hearing to argue whether the arbitrator has jurisdiction.

The second part of the hearing will be the actual grievance itself, and the league's attorneys will argue that Stern's punishments were both fair and consistent with terms of the collective bargaining agreement.

Kaplan will hear arguments on both issues -- jurisdiction and just cause -- before issuing a ruling on either. If he rules against the union on the jurisdictional issue, the second part of the hearing will have been rendered moot.

If he rules in the union's favor on both arguments, the league would take immediate action in federal court, Granik said.


================================================== =

In other words, had the league actually shown up at Kaplan's office last week, they would have been signalling that they believed he had jurisdiction. For numerous reasons, they could not afford that risk.

Further, once the jurisdiction issue is resolved, if the judge actually rules that Kaplan has jurisdiction, the NBA is going to to say, "Okay, Kaplan, when would you like to meet to get this process started?" I can't imagine a scenario in which a judge would simultaneously give Kaplan jurisdiction and also rule that the first meeting, held before the jurisdicition issue was resolved, was valid or binding.

TheSauceMaster
12-16-2004, 08:05 PM
Will, do you think the courts, who have moved quickly in order to rule in favor of Stern in the past, would issue an injunction forcing the league to abide by the arbitrator *that quickly*?

Have they even set a court date for a hearing on the initial motion yet?

Jay hit the nail on the head , this thing is far from over the NBA will fight. J.O and Jax will serve there full suspensions before this all get's worked out. Basically J.O and Jax are in this because if they can get the suspensions reduced they could posiably get lost salary back..same with AJ.

Will Galen
12-16-2004, 08:21 PM
I think Stern is less concerned about the suspensions holding up than he is about maintaining his committee of one in deciding these matters. If the players win there will be a precident for the union going around Stern.

I disagree. He's going to lose that right in the next contract anyway. What I think Stern will do if Kaplan rules in favor of the players is just say, "Okay we'll go along with what he decided just to promote harmony."

I think Stern's more concerned with getting along with the union than punishing player's. He's punished them and got his point across, why push it if it hurts relations with the union?

I've thought all along his reason for coming down so hard was then he could back off a little and look like a good guy, while still scaring the 'heck' out of the players.

Remember what Granik said? " . . . the league does not want to forfeit its right to possibly challenge Kaplan's eventual ruling in federal court . . . "

They didn't say they were going to challenge Kaplan's ruling, just that they didn't want to forfeit the right. There's the possibly that they won't challenge the ruling too. I don't think they will challenge it.

Unclebuck
12-16-2004, 08:30 PM
I have said for about 3 weeks now that Stern will compromise this thing if the arbitrator rules in the players favor, and I firmly believe that

Will Galen
12-16-2004, 08:33 PM
Will, do you think the courts, who have moved quickly in order to rule in favor of Stern in the past, would issue an injunction forcing the league to abide by the arbitrator *that quickly*?



No, I don't think the league will challenge the ruling.

Lord Helmet
12-16-2004, 08:39 PM
No, I don't think the league will challenge the ruling. So you think that if the arbitator reduces the suspensions the league will not do anything and we will have JO and everyone back soon?And Unclebuck you think that Stern will compromise a deal?I dunno I myself think the league will challenge it.But I could be wrong. :)

Unclebuck
12-16-2004, 08:43 PM
Stern likely won't come out and say they will compromise, they will file their suit, but I think before too long (before this goes to federal court) and in a quiet manner a deal will be brokered.

able
12-16-2004, 09:25 PM
There are a few scenarios possible:

First Will's version, very very likely. not challenging could also be part of a below the table deal; We'll et you have this one, but X is what we get back (in the CBA negotiations).

Second; They will challenge, go to court and let the judge decide, if that happens IMO they (the NBA) will lose, PA has a very strong case and even the most "right" wing judges do not look to lovingly at "employers" or "contract-parties" with so much "uneven" rights.

Finally: (forgetting all the combo's) this is a "schpiel" from Stern.
It could very well be that the is playing poker, with a hand he can only win.

<scenario> they challenge, they lose or they win, no matter what, the PA will HAVE to make this a "strong-point" in the CBA negotiations, meaning that if Stern stays put now, he "gives" the impression that it is important to him, this while it is not really, the man studied law, he knows, understands and feels that it was never meant this way, he has a freebie in Ron, so he can take the "bad guy" and a few of his "mates" and throw the book on them, now the PA is forced to make a stance (see the article, conclusion correct) In doing this the NBA (read Stern) has gained points in something HE wants in the CBA, age-limit/contract length/guarantee term etc.
That scenario makes it totally unimportant to Stern what happens, he has what he wanted already, bargaining chips, no matter what the outcome.

That scenario is the reason I keep saying Stern was just waiting for "anything" to do what he did, it provided him with the best tool he could ever get to back the PA up before the real negotiations even started.

waxman
12-17-2004, 04:45 PM
Any word from Kaps???

JOneal7
12-17-2004, 04:49 PM
who cares...