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Friday, June 22, 2012
Insights into the Lin decision

By Jared Zwerling

I spoke with NBA players' association Deputy General Counsel, Ron Klempner, to get some insights into Friday's decision regarding Bird and early Bird rights for players claimed off waivers, which granted those rights to Jeremy Lin and Steve Novak.

Here are highlights of the conversation:

Q: There was a lot of surprise about the decision. Were you?
Klempner: No, definitely not. I think that [the arbitrator] basically did what I've been saying for quite some time, and that was his conclusion, which is that this was incontrovertibly the state of that rule from 1995 to 2005. The reason we brought this proceeding is because we didn't think that we had intended to change what was in place that whole time. We think the language change was not substantive, so that's why we brought this proceeding, and he had confirmed what we had been saying.

I knew [the ruling] was a high burden to overcome, but if we were going to overcome it, it would be because we were able to show him that [the league] could have and should have done this a lot more clearly. I thought our argument went very well. I thought that [the arbitrator] understood the arguments, so it doesn't really surprise me. The word that I had gotten that many various observers didn't think that we had much of a chance to win this. We always thought that was the right result and we thought that we could make the arbitrator recognize that.

Q: Many insiders and salary-cap experts said the players' union wouldn't win. Also, David Stern said previously that the league would likely win the case because it had been addressed previously during negotations. Your thoughts?
Klempner: That's incorrect. This was not an issue that was discussed at all during the negotiations. The treatment of a waived player who's claimed off of waivers was not discussed in this new round of CBA negotiations. David I guess was incorrect in his prediction that he made during his Finals press conference.

Q: In basic terms, what was the argument from the union's side?
Klempner: The Knicks shouldn't have to go and break up their team. That's part of what the soft-cap system is about. The team should always have maximum ability to retain their own players. And the question for these guys is: How strong would the Knicks' ability be to go and keep them in light of their market value? And I think in layman's terms, it basically means that the Knicks can keep these players if they so desire. And if they and the players want that resolved, that was pretty much the intention of our agreement.

We were arguing the spirit of the rule as much as we were arguing the language, which is that players who move teams, not by choice, should not have to start over with their Bird rights. They shouldn't forfeit their valuable Bird rights, and that was a spirit that we thought was since the inception of the rule in 1995 and it should still exist today. Lin and Novak did not have a choice as to where it is they were going to play once their teams effectively cast them off or placed them waivers. If they had a chance to go and pick their teams, then clearly their Bird Rights would start fresh. We thought we had the higher ground on the policy and we feel like this was the right result.

Q: How long will the eligibility of Bird and early Bird rights last for future players claimed off waivers?
Klempner:
It's indefinite. There could be something different moving forward, and we'll know that soon. But right now, it's indefinite. The appeal would go to an appeals panel of three arbitrators, who the the two parties [the union and league] would have to select. We believe any appeal from the league will not be resolved by July 1, the start of free agency.

UPDATE -- Klempner's response to the league's appeal: "The NBA is entitled under the CBA to file an appeal, and we will respond accordingly. We don't think any such appeal has merit, and we are confident that the decision will stand and these players will benefit from it, whether it's through an expedited appeal process or a negotiated resolution.

Regarding the timing of July 1, there's no way that any two parties, much less these two parties, can agree on the identity of three arbitrators, hire them, file briefs, hold a hearing and get a written decision by the panel in one week, so, of course, the appeal can't be resolved by next week."

The league has 10 days to formally appeal. When it does, things will go back to status quo, meaning that Lin and Novak will have non-early Bird rights until the appeals panel says otherwise. The union believes a decision will be made by July 1.

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