Amended NBA eligibility rule draws questions on union’s authority

Whom does the union represent?

The National Basketball Association and the National Basketball Players Association, the players’ union, recently agreed to a new collective bargaining agreement. The negotiations and resulting agreement were subdued and without controversy. Among the subtle changes was an amendment to the league’s eligibility rule. That change invites consideration of the Players Association’s authority to set terms that apply to prospective players.

Specifically, the NBA is now requiring that all players invited to its Draft Combine attend and participate “unless excused from participation by the NBA for medical or other valid reasons.” The Draft Combine is a multi-day event preceding the NBA Draft at which prospective draftees are weighed and measured, participate in a variety of athletic and basketball-specific drills, undergo a battery of medical exams, and participate in interviews. If a player does not participate in the Combine, he is not eligible for the NBA Draft. Article X, Section 1, of the collective bargaining agreement provides that a player may not sign a contract with an NBA club unless he has been eligible for at least one NBA Draft.

Why the change?

The purpose of the rule change is probably two-fold.

First, NBA clubs presumably would like better information in evaluating potential draft picks. Some players in the past have declined to participate in the Combine, requiring interested clubs to coordinate individual workouts. The Combine presents an opportunity for clubs to efficiently evaluate players and gather information about them in a single setting. Although the National Football League does not require prospects to attend its Combine, it has recently streamlined the event to make it more efficient and less burdensome for the prospects.

Second, the NBA may be considering the entertainment potential of the Combine. The NFL Combine has long been broadcast on television and has become another event of fan and commercial interest on the NFL’s carefully crafted calendar. The NBA similarly could seek to turn the NBA Combine into a larger event, with greater revenue opportunities.

New rule likely to stand up in court

The NBA rule change will undoubtedly irritate some prospects and their agents, who may believe that their draft prospects are protected or improved if they do not participate in the Combine. However, based on prior court decisions, any legal challenges to the new Combine provision are likely to fail.

Under the National Labor Relations Act, the Players Association is the exclusive bargaining representative for NBA players with respect to the terms and conditions of their employment with NBA clubs. However, the Players Association does not represent prospective NBA players until they have either been drafted or have gone undrafted in a draft for which they were eligible. Simply put, the Players Association does not represent the players invited to the Combine.

Nevertheless, the courts recognize that a union may agree to rules that affect prospective employees outside the bargaining unit. In 1987, the U.S. Court of Appeals for the Second Circuit denied the claims of Leon Wood, a college basketball player, who alleged that the salary, free agency, and draft rules agreed to by the NBA and the Players Association violated antitrust law. In 2004, the same court rejected a legal challenge by Maurice Clarett, a college football player, to an NFL rule requiring players to be at least three years removed from high school. The basis for the court’s decision was that the rule had been agreed to by the Players Association.

Some prospects and their agents may grumble about the new NBA rule, but it is likely to stand.

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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