Note: Abe wrote this piece with the help of Terry Ford, University of Houston law student.
Of the many positions NBA superstar/professional contrarian Kyrie Irving has taken, one of the most egregious, in the view of longtime NBA reporter Jackie MacMullen, was his take on the NBA Draft. On Ryen Rusillo’s podcast in January of 2021, MacMullen recounted a conversation she had once with Kyrie in which he expressed he believed the NBA Draft should be abolished, and rookies should be able to play wherever they choose. MacMullen recoiled at this suggestion, as did many who simply accept drafts in sports as ways for leagues to organize themselves and promote parity and competition. But Irving’s critique is grounded in the history of labor negotiations between players and American sports leagues, with grounds for a legal challenge many have been waiting on for generations.
Let’s begin here: As we’ve learned in stark terms over the past few months, the very idea of “constitutionality” and “legality” is a feather blown about on currents of wind, vulnerable to the fickle forces of politics, legal theory, and culture. Precedence itself is an increasingly elastic proposition. It’s subjective and open to any number of interpretations. What we are here to interrogate is whether or not the draft, and the way the NBA treats its rookies is moral, and if not, what could be a realistic remedy to fight it?
Bouncing around the internet looking for a paper trail on this issue, arguments like these for abolishment are proposed in the interest of a rising tide that theoretically improves competition in the NBA through the free market. Without the draft, the thinking goes, players would naturally be attracted to the best run organizations, disincentivizing tanking regardless of how smooth the odds may be. But this argument is coming from a rosy optimist who believes in meritocracy, the perspective of a fan under the impression a league’s first interest is quality of play, and to provide the best possible product to its fans. This has historically, perhaps at times tangentially, been the league’s prerogative, but the main function of the league is to make as much money as possible for its owners.
In this Kevin Arnovitz classic he sets up the basic and most intuitive argument against the draft, that no doctor, or lawyer, or any professional would want to subject themselves to a forced multi year contract at a fraction of their worth at one of the worst firms hiring for their position. That the advantages a franchise may enjoy, be they geographical or organizational, are no different from those an elite college, or hospital may enjoy in attracting elite talent, so let them choose. But his appeal is lobbed from a perspective of fairness, appealing to the league’s moral fiber in the interest of the game, rather than a prescriptive piece outlining the young player’s recourse.
I argue my position on behalf of a high school or college player who may want to turn pro immediately, and play for the team of their choosing, earning as much as they could possibly bring in for their services in a true free market. The question is always framed in contemplation of the fan experience, and the NBA as a product, so let’s set that aside for now to focus on the talent.
For context, you have to go back to the inception of negotiations between the league and the NBA Players Union (NBPA). The big bang for the modern era of player’s rights was Robertson v. NBA, a challenge to the league’s proposed merger with the ABA on the grounds of antitrust, in violation of the Sherman Act. Robertson used the merger as a wedge issue, to open the league up to free agency, and force the NBA to come to the table and bargain with the player’s union. Under US law, an antitrust violation constitutes any rules that could be seen as a conspiracy, or a collective boycott by the NBA teams that infringe on the player’s right to trade freely, which essentially means limit the amount of money an employee could earn in a true free market.
For the first few CBAs, running from 1980 through the mid 90s in a still growing and developing league very much getting its shit together, the players had leverage over ownership. They negotiated as a unified front, with leadership that was firmly on their side and punching the accelerator, fighting for every player, past, present and future. The players had a historically large revenue share, but their original sin was the salary cap, a Faustian Bargain the NBPA’s Abraham, Larry Fleisher — a lawyer and agent who spent years representing the players for free — made to create the first CBA and usher in the modern era of player rights.
The cap constitutes a clear antitrust violation, to the extent the players had to partially waive the rights that were given to them in the Robertson decision. There are a number of both decent and debatable reasons why they elected to do this at the time we will gloss over for the sake of expediency. (If you would like a deep dive on the subject, I would heavily recommend Joshua Mendelson’s The Cap, a history of the league’s labor negotiations) But the cap was always meant as a temporary measure for a league in crisis- and abolishing the cap, as well as the draft- was high on the list of priorities for Fleisher, and his mentee and NBPA successor, Charles Grantham.
And this makes sense. The draft is an institution erected entirely in the interest of the league. Its true utility is giving teams more time to evaluate talent, both with the year of time served in college (or now) the G League, risking injury and giving teams time to sour on a player’s promise as they make nothing or far less than they would on a true open market where they could get fair value for their talent. We’ve seen countless instances of this over the years. Players who get injured their senior year in High School, and players who are diminished from a year of potentially misleading reps in college.
This arbitrary, temporary injunction placed on the young players is sold to the public as a restraint that is altruistic, in the interest of the player. They bring up Korleone Young or Sebastian Telfair as kids who got too much, too soon. And while cops and feds will argue that this is good for competition, that players who don’t deserve their contracts off hype and bad scouting shouldn’t get them, I would counter, WHY? Wouldn’t you want to maximize your earning potential while you could? Our modern untethered financial system is built on unhealthy and often inflated speculation, why shouldn’t a young athlete be able to reap the same reward? A player’s worth is dictated by what just one team is willing to pay them, I say let them test the market. No other market in America saves the dumbasses from themselves like the NBA does.
Plus, Luka Doncic was drafted at the age of 13, as are many European basketball and football stars. And now, with the G-League exception that allows prospective NBA players to forgo “college” (6 months on campus skipping class and playing scrubs at great personal risk) and try out for NBA teams for a year at a discount, even that thin premise has fallen away. What we’re left with is teams that refuse to commit to a player until they get as much tape as they possibly can, because the rules have been set by them, for them. And crucially, rubber stamped by the player’s union.
In 2004, Ohio State running back Maurice Clarett wanted to declare himself eligible for the draft. He was only two years out of high school, a year short of the league mandated three, so he sued, declaring that the draft restriction constituted an antitrust violation. It was the case professional American sports had been waiting nearly 30 years for, one that looked to finally finish the job Robertson v. NBA began, and it nearly worked. Clarett won his initial ruling, but that ruling was overturned by Second U.S. Circuit Court of Appeals of New York Judge, and future Supreme Court Justice, Sonia Sotomayor. The Cliff Notes version of Sotomayor’s brilliant, if frustrating decision was that even though the draft restriction could be construed as an antitrust violation, it is exempt from the law because it was agreed upon in the collective bargaining agreement between the league and the players union. Clarett’s error was in suing the wrong institution. The real answer could be for a prospective player to sue his own union.
The turning point for the NBPA came in 1994, when director Charles Grantham, the last vestige of the old pro-solidarity, pro-labor mentality was essentially fired by his own union to avoid a lockout. The players didn’t have the mettle, or the stomach, somewhat understandably, to stand up to the owners and engage in a lengthy, expensive lockout. Professional basketball labor disputes are contests held between several hundred young men, many living on the edges of their means, working a skilled labor job with a limited timetable for viability, squaring off against a small group of fabulously wealthy old men with nothing but time on their hands. At some point, an increasingly seasoned and sophisticated ownership group finally recognized this. From that moment onwards, the league set the agenda for the CBAs and often would be the first to walk from the negotiating table. Big asks like abolishing the draft and the salary cap went away. The game became the players desperately scrambling to hold onto their diminishing piece of a counterintuitively rapidly expanding pie.
The league’s most vulnerable players, its members that haven’t even joined the union yet, became the easy, obvious target for chipping away at the players’ revenue share. Throughout the 90s, that aforementioned speculative market for rookies exploded. There were record deals for heavily touted college stars like Chris Webber (15 years, 74.4 million, 1993) and Glenn Robinson (10 years, 68 million, 1994). The league corrected this with a harsh and restrictive rookie salary cap attached to the 1996 CBA, done with the blessing of spiteful veteran stars making less than rookies. The year after Big Dog got his money, number one pick Joe Smith signed a three year deal for 8.53 million dollars.
Then, after the league targeted and legislated out those deals with a rookie scale, in the late 90s, the High School to league eligibility, (only challenged a few times previously by High School graduates like Spencer Haywood, Moses Malone, and Darryl Dawkins) was steamrolled by players like Kevin Garnett and Kobe Bryant. There was a loophole in the rookie scale allowing progressively younger players to negotiate in year three. Once again, the league intervened, and set a cap on the year three extension with a restricted free agency provision. Again, this couldn’t be done without the consent of the union.
If it seems unfair and fucked up that every CBA, High School, JV, Pee Wee, and unborn future NBA players have their rights negotiated for them by a body they have no say over, rest assured its fully covered and excused by US Labor Law. This is why a prospective pro has a difficult time suing the union that makes deals every few years that continue to diminish their freedom of movement and career earning power. Under US Law, a union has the right to negotiate on behalf of all present and future members, though those future members obviously have no voice. It makes sense that unions look out for their own. To get to a position of power in a union requires earning goodwill amongst your peers, which takes time. You build relationships, both with your teammates, opponents, and management, and you fight through an arduous, difficult career, making the same low pay, with the same limited options you feel comfortable passing on to the next generation of players. It’s an extension of classic conservative, Capitalist, bootstraps mentality bullshit.
The Duty of Fair Representation is a legal standard all unions must meet to be able to claim they are properly representing their union members. While it’s impossible to come up with an agreement every union member making up a diverse body in any field is going to be entirely happy with, over years of refinement and evolution in America labor law, the standard now requires unions to argue on “good faith” on behalf of union members, without “deliberate disregard or misconduct” and demands that a union’s conduct in negotiation is not “discriminatory based on irrelevant considerations”, such as race, and perhaps, though this argument has not been made yet, age. The history of this standard has been difficult to meet legally, as unions are typically given a wide berth and discretion to make deals on behalf of its members. Seniority is one consideration the courts have historically considered relevant, so the crux of the argument is the union’s ability to represent its prospective members, or a job pool eager to take work from its existing members, balanced with the interest of its current members, of which there are obviously far more with voices and votes.
In her 2004 decision, Sotomayor essentially argues for a sanctioned discrimination of a union against its prospective members, saying “That’s what unions do everyday– protect people in the union from those not in the union.” In this, she is essentially pitting Cade Cunningham against Jeff Teague, incentivizing the union to prioritize its existing members over those coming in. It’s the same logic that causes police and teachers unions to protect its worst cops and teachers at all costs, a myopic focus on what is without any consideration of what is actually best for the body politic, and for the future.
Chris Paul is one of my favorite players ever. I love point guard play, and there’s only been a handful of guards in the history of the game that have his mastery of full court orchestration, his vision, his brilliance. He sees all the angles, and if you extend this extra sensory perception off court, he makes a lot of sense as a Players Union Head. I admire Paul offcourt as well. In his advocacy of voting rights and HBCUs, he displays an awareness of the importance of Black self determination, of the right of young Black people to achieve their full potential.
When explaining why the issue of HBCU support has been so important to his platform, Paul said, “If some of the top kids go to these HBCUs, the money will follow. ESPN, all the outlets will follow. Just understanding that is sort of what I’ve been trying to do.” What he’s expressing is the desire to make real, lasting, systemic change. He is acutely aware that talent attracts money, and money can make effect real change in American lives and the structures erected against them.
And yet, Paul is a willing, some might say, essential actor in another sort of system of oppression. As NBPA president, according to the precedence set by Sotomayor giving rookies little recourse under agreements made in the CBA, he has continued the work of whittling away the rights and earning powers of the league’s current and future rookies, in allowing the draft, the age requirement, the pay scale, and increasingly repressive rules dictating young player movement to go unchallenged.
At what point could these rubber stamps be considered pernicious, a violation of the Duty of Fair Representation? Consider that one of the only meaningful wins the players’ achieved in the last bloodless CBA negotiation was a max player wrinkle so narrow, and specific to an older star, it’s been labeled “The Chris Paul Rule.” At what point do we consider these arbitrary hand shake deals being made behind closed doors as fucked up and tainted as Senators exchanging pork for votes? How is this not discriminatory?
LeBron James is smashing records, and the idea of what we believed was possible to accomplish in athletics at an alarming rate these days, but he quietly broke one of the most remarkable records he’s ever broken, that no one else may for a very long time, in 2020. That year, in which he won a miraculous championship in the bubble for his third franchise, he also passed two players, drafted out of high school in 1996 and 1997, for the most career earnings ever made by an NBA player. It was Kobe Bryant and Kevin Garnett.
Aided by the Chris Paul Rule, the Union head will pass the two legends soon as well. But it’s worth noting that Kobe and KG were able to amass this fortune, when they did, 25 years ago in a much less wealthy league, because they were the last of a group of players that were able to reap near the full potential of their earning power in the NBA, over the course of historically great and seasoned careers, before the league came in and placed (more) artificial restraints on what players could make (Some believe it was Garnett’s 126 million, six year contract, in his third year as a player, that triggered the 98-99 lockout).
And though I’ve spent a great deal of your time attacking the players union, I just want to make clear this is only because that’s potentially the only avenue of legal attack left open by the court system. The real enemy, of course, is the fake ceiling set by the owners and the salary cap, and the illusion of a pie with only so many crumbs the players are left to fight for amongst themselves. This is the ultimate goal of management, and also pure cartoon evil, and it means to stand up to that system, a teenager would have to sue a union he is attempting to join for a breach of The Duty of Fair Representation. It would result in a lengthy and difficult legal battle he could very realistically lose, and eventually end up blackballed or at least alienated, all because he wants more for himself than anyone else is willing to want for him.
As related by Jackie MacMullen to Ryen Rusillo, in the exchange regarding the draft that opened this piece, Kyrie Irving allegedly told MacMullen that “Player’s aren’t property”. MacMullen’s self-professed response was, “Yeah, you are.” The sentiment, horrifically worded, loaded, and misguided, was technically correct. Young players in every sport begin in a stasis commonly referred to as team control. They are drafted by a team that is not necessarily one of their choosing, then stuck with that team for up to seven years depending on how much money they’re willing to sacrifice.
When they voice displeasure with their team’s mismanagement, by the team they’re forced to play for, by the city they’re forced to live in, they’re vilified by the media and fans as a malcontents, evidence of a rapidly eroding society in a death spiral. Perhaps it is time for these young players to push back against lazy conventional wisdom and weight of history, against their own unions, that say fuck the bosses out of one side of their mouth, even as they support management in convenient situations like these, and demand a better tomorrow.