Hey P&T! This is my first Fan Post after thousands of mostly useless comments, so go easy on me. I studied Industrial and Labor Relations for my undergrad, and unless I'm missing something major I think the NBAPA has an excellent chance at winning the arbitration tomorrow. Arbitration in Collective Bargaining Agreements is governed by the "Enterprise Wheel" rule from a 1960 Supreme Court ruling, and this rule makes me feel pretty confident.
Information from the University of Missouri Labor Education Program, and Larry Coon's CBA FAQs. Also my hazy memories of an Alternate Dispute Resoultion class I took one time.
Bird rights (and Early Bird) protect players in situations where they are sent to new teams, preventing teams from changing the financials in a way to negatively impact the player. They also guarantee that a team has first crack at re-signing free agents should they choose to (but that part of the intent isn't really important for this arbitration). The language around the transferring/inheritance of both types of Bird Rights in trades is clear, and so is the intent around not removing the rights of a qualifying player just because they were forced to join a new team.
The transferring of rights in waiver sitautions isn't nearly as clear. The language speaks to the rights being lost when they are acquired in the "waiver process", where the point of contention between the Union and the League has developed. The waiver process can easily be read as "completed waivers and was signed to a new contract", which would explain loss of rights (as the same applies to Free Agent contracts when the player goes to a new team). In cases like the two we actually care about, our beloved Knickerbockers are still on the same deals they had at their previous teams, and did not clear waivers before they were picked up.
Now to the Supreme Court ruling:
- If the wording of the contract is clear and definite, the clear language should be enforced. This is the so-called "plain meaning rule" of labor arbitration. In cases where the language in dispute is deemed clear and unambiguous, arbitrators are unlikely to consider extrinsic forms of evidence such as the intent of the parties, bargaining notes or history, or practices. Words should be given their ordinary and popularly accepted meaning in the absence of anything indicating that they were used in a different sense or that the parties intended some special or technical meaning. A reliable dictionary definition will generally be used. Punctuation is also important as the placement of punctuation can change the meaning of sentence or phrase.
- The contract should be interpreted as a whole. When both general provisions and special provisions concern the same thing, the special provisions will generally prevail. When both general provisions and special provisions concern the same thing, the special provisions will generally prevail. Written provisions imply the exclusion of everything not mentioned. Unwritten provisions may exist if they are consistent with the written provisions.
- If the wording of the contract is unclear, vague, and indefinite, the interpretation of the parties and their practices will carry considerable weight. Extrinsic aids to interpretation may be useful in determining the intent of the parties who drafted the language. Such aids may include bargaining history, customs or practices, industry customs or practices and prior settlements involving the same language.
- Lastly, the interpretation considered by the arbitrator must be a reasonable one. Arbitrators will generally look for a reasonable and equitable interpretation. Whenever two interpretations are possible, one making the agreement valid and lawful and the other making it unlawful, the former will be used.
Point 1 is the obvious selling point for the League, but as I laid out earlier it isn't necessarily clear. I'm also unsure about the grievance process (steps before arbitration) in the NBA contract, but in my work experience with Unions a company never puts contract disputes in front of a neutral 3rd party if they can avoid it. #2 for me is the salient point, and speaks to my earlier paragraph about the intent of Bird Rights. This is where I'm getting my confidence from, along with #3. It is rare for a player to be picked up off waivers without completing the process, so there is no precedent that I can find on this situation. This is always a good thing. #4, well shit. It seems reasonable to me, that should be good enough for them.
Final note (and sorry this is so long) about this Arbitrator. This is the same man who let Ryan Braun off on a technicality in a case that the entire media had pegged as an easy win for MLB. We'll see what happens, but I don't buy the seemingly universal "Union has no shot" reporting I've encountered over the last few weeks.