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I was posting this in the 3d thread this week that was on the topic of the legal ramifications (or not) but decded that there are a few of us who like to work on thes things and it might as well have its own thread:
The remainder of this discussion is in two other threads, so if you want to read background pls visit them.
Let's take the case in it's entirity and leave out the opinions, not easy but let's try and see this thing through the eyes of those who are supposedly doing this for a living.
Not interesting in that matter:
Who started & who did what, those are the fact the apeal judge has to look at, not we.
So; an altercation took place, player(s) entered the stands, punches were thrown.
As is his right, the commish rules on the suspensions (either the commish or a designee has to do that according to the bylaws and the CBA)
The suspensions are extremely (UNprecendented) long.
These are facts, no one disputes the right of the commish or his designee to sentence, or to judge the matter, if anyone thinks so then they are wrong, in all I read I could not find one person thinking that it was NOT the right of the NBA to sentence.
Now these facts are in the same time the stage we are in now; suspensions are in effect, the commish has done his job.
This is however also the part where it get's interesting.
As in all matters that require judging in the modern world, appeals are open to those sentenced upon.
And that is also where everybody rolls over everybody else to have an opinion, alas without thinking most of the time.
The NBA according to their spokes person, is under the impression that in matters relating to (as they call it wrongly) "on-court" matters the commish is the person who rules upon appeals.
The players and the PA are however under the impression that such is NOT the case.
Now the CBA is really quite clear on this, which does not dispell the reason for the behaviour of the NBA, but in all honesty, those who read agreements more then once in a lifetime will find the part that handles "appeals" quite easy to read.
Now several parts of such an agreement are important to get a "feel" about a case, those with the most press-leverage usually have "right" written all over them, but sometimes the less guilty have simply no way (due to several reasons) to counteract the press-offence against them like in this case (I'll come back to that at the end)
Now which parts of the CBA are important?
ARTICLE VI : PLAYER CONDUCT
Section 4. Unlawful Violence.
When a player is convicted of (including a plea of guilty, no contest, or nolo contendere to) a violent felony, he shall immediately be suspended by the NBA for a minimum of ten (10) games.
Section 7. League Investigations.
(a) Players are required to cooperate with investigations of alleged player misconduct conducted by the NBA. Failure to so cooperate, in the absence of a reasonable apprehension of criminal prosecution, will subject the player to reasonable fines and/or suspensions imposed by the NBA.
(b) Except as set forth in subsection (c) below, the NBA shall provide the Players Association with such advance notice as is reasonable in the circumstances of any interview or meeting to be held (in person or by telephone) between an NBA representative and a player under investigation by the NBA for alleged misconduct, and shall invite a representative of the Players Association to participate or attend. The failure or inability of a Players Association representative to participate in or attend the interview or meeting, however, shall not prevent the interview or meeting from proceeding as scheduled. A willful disregard by the NBA of its obligation to notify the Players Association as provided for by this Section 7(b) shall bar the NBA from using as evidence against the player in a proceeding involving such alleged misconduct any statements made by the player in the interview or meeting conducted by the NBA representative.
(c) The provisions of subsection (b) above shall not apply to interviews or meetings: (i) held by the NBA as part of an investigation with respect to alleged player misconduct that occurred at the site of a game and (ii) which take place during the course of, or immediately preceding or following, such game. With respect to any such interview or meeting, the NBAís only obligation shall be to provide notice to the Players Association that the NBA will be conducting an investigation and holding an interview or meeting in connection therewith. Such notice may be given by telephone at a telephone number, pager number or message-recording number to be designated in writing by the Players Association.
Section 8. On-Court Conduct.
In addition to its authority under paragraph 5 of the Uniform Player Contract, the NBA is entitled to promulgate and enforce reasonable rules governing the conduct of players on the playing court that do not violate the provisions of this Agreement. Prior to the date on which any new rule promulgated by the NBA becomes effective, the NBA shall provide notice of such new rule to the
Players Association and consult with the Players Association with respect thereto.
ARTICLE XXXI GRIEVANCE AND ARBITRATION PROCEDURE
Section 1. Scope.
(a) Any dispute (such dispute hereinafter being referred to as a "Grievance") involving the interpretation or application of, or compliance with, the provisions of this Agreement or the provisions of a Player Contract (except as provided in paragraph 9 of a Uniform Player Contract), including a dispute concerning the validity of a Player Contract, shall be resolved exclusively by the Grievance Arbitrator in accordance with the procedures set forth in this Article; provided, however, that disputes arising under Articles VII, VIII, X, XI, XII, XIII, XIV, XV, XVI, XXXVII, XXXIX, and XL shall (except as otherwise specifically provided by Article VII, Section 3(d)(5) above) be determined by the System Arbitrator provided for in Article XXXII.
(b) The Grievance Arbitrator shall also have jurisdiction over disputes involving player discipline to the extent set forth in Section 8 below and over disputes concerning the disposition of funds deposited in accordance with Section 9 below to the extent set forth in that Section.
Section 5. Arbitratorís Decision and Award.
(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.
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 12. Expedited Procedure.
(a) Notwithstanding the foregoing, in the event of a dispute arising under Article XVII, Article XXX, or Article XXXI, Section 11 of this Agreement, or under paragraph 15 of a Uniform Player Contract (but only insofar as such paragraph provides), or in the event of an alleged breach by a player of paragraph 9 of a Uniform Player Contract, the NBA or the Players Association may request that such dispute or alleged breach be referred immediately to the Grievance Arbitrator. In any such case, the dispute or alleged breach shall be asserted by notice in writing or by facsimile given to the other party or parties, the NBA, the Players Association, and the Grievance Arbitrator.
(b) The Grievance Arbitrator shall convene a hearing with respect to such dispute or alleged breach at the earliest possible time, but in no event later than 24 hours following his receipt of such notice. If the Grievance Arbitrator is not immediately available and the parties are unable to agree upon another grievance arbitrator, the American Arbitration Association shall appoint such other grievance arbitrator.
(c) The award, which shall be issued not later than twenty-four (24) hours after the conclusion of the hearing, shall be in writing and may be issued with or without opinion. If any party desires an opinion, one shall be issued but its issuance shall not delay compliance with or enforcement of the award. The award shall constitute full, final and complete disposition of the dispute or alleged breach, and shall be binding upon the player(s) and Team(s) involved and the parties to this Agreement.
(d) The failure of any party to attend the hearing as scheduled shall not delay the hearing, and the Grievance Arbitrator shall be authorized to proceed to take evidence and issue an award as though such party were present.
Section 13. Threshold Amounts for Certain Grievances.
A fine or suspension imposed by a Team shall be appealable to the Grievance Arbitrator only if it results in a financial impact on the player of more than $2,000. A fine or suspension imposed by the Commissioner shall be appealable to the Grievance Arbitrator only if it results in a financial impact on the player of more than $25,000.
Section 14. Miscellaneous.
(a) Each of the time limits set forth herein may be extended by mutual agreement of the parties involved.
(c) The parties recognize that a player may be subjected to disciplinary action for just cause by his Team or by the Commissioner (or his designee). Therefore, in Grievances regarding discipline, the issue to be resolved shall be whether there has been just cause for the penalty imposed
Now the conclusion from the above can only be that the arbitrator has the jurisprudence over this matter.
That conclusion is based upon the following:
A. "playing-court" this is a limited term meaning that the limits of "playing-court" are clearly set forth in the NBA rules and regulations. Unlike earlier suggestions, this is not comparable to the article dealing with leaving the bench (vicinity of the bench) suring an altercation, these suspensions were not based upon that article.
These suspension can only be based on misconduct (short term for the express written in the above)
Now to be not eligible for grievance arbitration it must be an "on the playing-court" matter or "have less influence then $ 25 thousand"
We can safely say that according to the NBA rules the playing court does not include the stands, stairs, dressingrooms and what more.
We can also safely say that the influence is more then $ 25 K
Now why did the PA refer to "intention of the agreement not being to give the commish the right to hand out such penalties" ?
Simple, "on playing court matter" are limited in expectence, a fight between players is no more then that, 5 games and next please.
That part does not foresee in players going into the stands, nor does it foresee in more then a fight, it is therefor limited in it's structure and result.
"matters of conduct" is a very wide term, once it became a wide description another "measurement" was put in place to leave open "grievance arbitration" the 25 thousand dollar limit.
These limits show clearly that the intent of the agreement was that in matter exceeding the "norm" of a small number of games, an appeal procedure should be open to the players with an independant 2d party instead of with the commish.
Again, the question is not whether the commish can hand out the punishment, he can, the question is who is to hear an appeal, the commish or a grievance arbitrator.
The above shows that the grievance arbitrator is the right person to handle the appeal.
Now that leaves the NBA's actions over this period:
Again a short intro:
Case happens, TV commentators are "understanding" towards players, during and hours after the happening, 24 hours later however a directive comes down from the NBA and the case now get's no longer introduced as "punk fans on a rampage" but as "Ron Artest and buddies go bananas"
This started with ESPN and NBA TV and was soon taken over by others, who all depend on these stations and the NBA for their newsfeed.
Less then 24 hours later the commish rules that Ron Artest started the entire sharade and that he and his buddies should be punished severly.
In the following days the commish was by those same stations he earlier send a directive praised straight into heaven and all those that feed of the NBA took over that warcry.
The result is the villification of the Pacers involved.
Then the PA came with the expected grievance arbitration request.
The NBA sought to delay the procedure and in the mean time made it clear they had the right to give those sentences (something few if any doubted) thus distracting from teh real question: Who hears the Appeal?
Then prior to anyting the NBA files suit in the court to prevent the arbitration from happening, now suppose that case had gone to court and the judge had read what is written above and conclude like I do that arbitration is the "legal appeal"?
That would mean that the case would be resolved this week, that the arbitrator did not have to rule on whether it is his jurisdiction and that the outcome would be binding.
Case solved one way or the other this (coming) week.
Then the NBA decided to NOT argue the "jurisdiction" question before the aribitrator (thus allowing them to say that he had no jurisdiction and to ignore his judgement) but would argue the case in itself would it be heard.
Then rumours surfaced that the PA wanted to have the commish give testimony, here is where the lawyers for the NBA got wet feet, went over his speech in which he annouced the sentence and went over priors and comparible cases in other sports and found that in all it was perhaps not such a very strong case, one that would be served a lot better with delay.
Furthermore the arguing the matter before the arbitrator would more or less make life easy for a judge in this case after they would go to court when the arbitrator does not rule in favor of the NBA, another risk they did not want to take.
Finally by not participating they prevented that punishment suspending procedures would be started the second they went to court.
Finally it added the argument that they had not argued their case so that even if they were wrong in their assesment of the case (and thus lost the case in court) the still could request a new hearing to argue their case for the length reductions.
So where are we now?
The arbitrator has heard the case and will rule witin the next week.
Let's assume he has agreed that he has jurisdiction, and that the penalties were excessive, so he proposes a reduction.
Now the NBA will take the case to court (2 weeks after their initital filing) and have the case heard before a judge, with appeal options, in other word a likely 4 more weeks of litigation follows, of course the PA will file suit to allow those players who can play after the reduction because the suspension final tally is smaller then the suspension already undergone again another law case, with arguments and hearing, 1 week at the minimim.
Now it all ends up in the scales; the commish can probably pull this over Christmas, making most reductions moot.
Except for Ron, let's hope he's back after the All Star game at the latest.
So Long And Thanks For All The Fish.
If you've done 6 impossible things today?
Then why not have Breakfast at Milliways!