> >> http://msn.foxsports.com/story/3188346
> >>
> >> "In that case we were seeking an injunction. We may not pursue an
> >> injunction if we pursue this in federal court," Hunter said, adding
> >> the union will argue that since some of the punishable behavior
> >> happened in the stands, it should not fall under the definition of
> >> "on-court behavior." "We think the court is limited to the court
> >> itself, the 90-by-50 piece of hardwood, and the benches," Hunter
> >> said.
> >
> > Thanks, Laurel. First I would note that the article seems to support
> > my interpretation of the contract clause. It says:
>
> Sure. However it may well get past Stern yet.
>
> >
> > Now, Hunter appears to be attempting an end-around to avoid the rule
> > stating the commissioner has sole authority - and is the final avenue
> > of appeal - over matters of discipline involving on-court behavior.
> >
> > "The players association's efforts to bring this matter before an
> > arbitrator ignores the plain language of the collective bargaining
> > agreement and the consistent past practice of the parties and will
> > ultimately fail," NBA spokesman Brian McIntyre said.
> >
> > Beyond that, I'll just say what I said before. It would create
> > strange incentives if the league made it *easier* to appeal discipline
> > for a fight that spilled into the stands than to appeal discipline for
> > a fight that stayed on the court.
> >
> > But Hunter doesn't have another argument to make,
>
> He argues that the intent of the CBA was never to give sweeping rights to
> the commissioner to hand out extremely long suspensions without arbitration
> as what happened in this case, no matter the location and that may well be.
>
I see what you're saying, although I'm still doubtful that it will
work. Whatever the "intention" of the parties, what matters most in
labor arbitrations is the actual language of the contract. The actual
language says "on court." Hunter is trying to make that be extremely
literal, e.g., if a fight breaks out on court but spills into the
stands, it's not "on court" anymore. I find it hard to believe that
such an interpretation matches the "intent" of the parties.
My guess, without knowing for sure, is that there is already precedent
for the interpretation that "off court" wasn't intended to mean "when
a fight during a game spills into the stands," but rather for truly
off-duy misconduct, such as drunk driving. Plus, again, it would
certainly create strange incentives for players if Hunter's
interpretation was adopted, because (again) it would mean that it
would be *easier* for players to appeal discipline for fights that
went into the stands than fights that stayed on the court.
One interesting question is this: who decides whether the on-court
language is applicable, a court or an arbitrator?
But, even if Hunter is successful with his argument that the "on
court" clause doesn't cover this, he still has to deal with Art. XXXI,
Sec. 5 (c) which says, in relevant part:
(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.
This means that even if an arbitrator could hear the appeal, the
standard of review would be very deferential to Stern.
>
> Would not be the first time lawyers for either side found holes in the CBAs
> language, or that the arbitrator decided the language did not fit the intent
> and agree to hear the grievance.
Speaking as a guy who used to litigate labor arbitration hearings, I
agree with you in general, but I'm doubtful in this case (although
again, I could be wrong in my prediction).--Joe
>> Stay informed about: Will the suspensions be staggered? 
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