ARTICLE XXXI: GRIEVANCE AND ARBITRATION PROCEDURE AND SPECIAL PROCEDURES WITH RESPECT TO DISPUTES INVOLVING PLAYER DISCIPLINE

INDEX
Section 1. Scope
Section 2. Initiation
Section 3. Hearings
Section 4. Procedure
Section 5. Arbitratorís Decision and Award
Section 6. Appointment and Replacement of Grievance Arbitrator
Section 7. Injury Grievances
Section 8. Special Procedures with Respect to Player Discipline
Section 9. Procedure with Respect to Fine and Suspension Amounts
Section 10. Disputes with Respect to the Terms of a Player Contract
Section 11. Disputes with Respect to Players Under Contract Who Withhold Playing Services
Section 12. Expedited Procedure
Section 13. Threshold Amount for Certain Grievances
Section 14. Miscellaneous

Section 1. Scope.
(a)

(b) Notwithstanding the provisions of Section 1(a) above:

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Section 2. Initiation.
(a) Grievances may be initiated, as set forth below, by a player, a Team, the NBA, or the Players Association, except that the Players Association may not initiate a Grievance involving player discipline without the approval of the player(s) concerned.

(b) No party may initiate a Grievance until and unless it has first discussed the matter with the party or parties against whom the Grievance is to be initiated in an attempt to settle it.

(c) A Grievance must be initiated, in accordance with the provisions of Section 2(d) below, within thirty (30) days from the date of the occurrence upon which the Grievance is based, or within thirty (30) days from the date upon which the facts of the matter became known or reasonably should have become known to the party initiating the Grievance, whichever is later.

(d) Subject to the provisions of Sections 2(a)-(c) above: (i) a player or the Players Association may initiate a Grievance (A) against the NBA by filing written notice thereof with the NBA, and (B) against a Team, by filing written notice thereof with the Team and the NBA; (ii) a Team may initiate a Grievance by filing written notice thereof with the Players Association and furnishing copies of such notice to the player(s) involved and to the NBA; and (iii) the NBA may initiate a Grievance by filing written notice thereof with the Players Association and furnishing copies of such notice to the player(s) and Team(s) involved. Any such notice shall expressly state that the party is initiating a Grievance pursuant to Article XXXI, Section 2 above.

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Section 3. Hearings.
(a) Upon at least thirty (30) days’ written notice to the other side, the NBA and the Players Association may arrange to have a hearing scheduled on a date that is mutually convenient to the parties to the dispute, the NBA, the Players Association, and the Grievance Arbitrator; provided, however, that if the NBA and the Players Association cannot agree on a hearing date, the Grievance Arbitrator shall set a reasonable hearing date that follows the expiration of the thirty-day notice period. Only the NBA and the Players Association may schedule or postpone hearings before the Grievance Arbitrator.

(b) Notwithstanding the provisions of Section 3(a) above, during each Salary Cap Year covered by this Agreement, the Players Association and the NBA shall each have the right, upon a showing of need, to have two (2) Grievances scheduled for hearing on or after the tenth day following service of the notice provided for by Section 3(a) above. The provisions of this subsection (b) shall not limit or otherwise affect the rights of the NBA or the Players Association pursuant to Section 12 below.

(c) If a Grievance is scheduled for hearing under this Article XXXI, and the hearing date is thereafter postponed at the request of either the NBA or the Players Association, the postponement fee (if any) of the Grievance Arbitrator will be borne by the party requesting the postponement, unless that party objects and the Grievance Arbitrator finds that the request for such postponement was for good cause. Should good cause be found, the parties will share any postponement fee equally.

(d) In any Grievance matter, neither the NBA nor the Players Association may request or be granted more than one (1) postponement of a hearing previously scheduled under this Article XXXI. If a party which has been granted a postponement of a hearing fails to attend a subsequently scheduled hearing in the same Grievance matter, the Grievance shall be resolved against that party.

(e) If (i) a hearing of a Grievance is not scheduled to take place within one (1) year from the initiation of the Grievance, or (ii) in the circumstance where the initial date set for the hearing has been postponed, if a second hearing in that Grievance is not scheduled to take place within two (2) years from the initiation of the Grievance, then the Grievance shall be dismissed with prejudice.

(f) For purposes of computing time under this Section 3, the time shall be tolled during any period when there is no Grievance Arbitrator or when the grieving party has been unable to schedule a hearing (after making efforts to do so) because the Grievance Arbitrator is unavailable.

(g) Hearings before the Grievance Arbitrator shall be held in New York (alternating between the NBA and Players Association offices). All such hearings shall be conducted in accordance with the Labor Arbitration Rules of the American Arbitration Association; provided, however, that in the event of any conflict between such Rules and the provisions of this Agreement, the provisions of this Agreement shall control.

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Section 4. Procedure.
(a) Not later than seven (7) days prior to the hearing, the parties shall submit to the Grievance Arbitrator a joint statement of the issue(s) in dispute. If the parties cannot agree on such a joint statement, each party may submit to the Grievance Arbitrator a separate statement setting forth the disputed issue(s), and such separate statement shall be delivered to the other party or parties at the same time it is submitted to the Grievance Arbitrator.

(b) During each Salary Cap Year covered by this Agreement, the NBA and the Players Association shall each be entitled, as a matter of right, in connection with one (1) proceeding brought pursuant to this Article XXXI, to the discovery, in advance of a hearing, of non-privileged documents from any adverse party (or parties) in such proceeding. The party (or parties) to whom a request for document discovery is made shall have the obligation to produce only documents that are directly relevant and material to the core issue(s) in dispute, and shall not be obligated to produce documents merely because the production of such documents would be reasonably calculated to lead to the discovery of relevant or admissible evidence.

(c) Not later than three (3) business days prior to the hearing, the parties shall exchange witness lists, relevant documents and other evidentiary materials, and citations of legal authorities that each side intends to rely on in its affirmative case. Absent a showing of good cause, no party may proffer, refer to, or rely on the testimony of any witness, any document or other evidentiary material in its affirmative case that has not been identified to the other side as required by this subsection.

(d) The Grievance Arbitrator shall grant the request of any party to file a pre-hearing and/or post-hearing brief, unless an opposing party demonstrates that the filing of briefs is unreasonable in the circumstances. If the Grievance Arbitrator grants a request to file pre-hearing briefs, such briefs shall be served on the adverse party (or parties) and filed with the Grievance Arbitrator not later than three (3) business days prior to the hearing. No pre-hearing brief shall exceed ten (10) pages in length, and the rules applicable in the United States District Court for the Southern District of New York with respect to the calculation of pages, the size of font, margins and the like shall apply.

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Section 5. Arbitratorís Decision and Award.
(a) Except as set forth in Section 12 below, the Grievance Arbitrator shall render an Award as soon as practicable. The Award shall be accompanied by a written opinion, or, if both the NBA and the Players Association agree, the written opinion may follow within a reasonable time thereafter. In no event shall the Award and written opinion be issued more than thirty (30) days following the conclusion of a Grievance hearing (or, where applicable, following the date designated by the Grievance Arbitrator for the submission of post-hearing briefs). The Award shall constitute full, final and complete disposition of the Grievance, and shall be binding upon the player(s) and Team(s) involved and the parties to this Agreement.

(b) In addition to such other limitations as may be imposed on him/her by this Agreement, the Grievance Arbitrator shall have jurisdiction and authority only to: (i) interpret, apply, or determine compliance with the provisions of this Agreement; (ii) interpret, apply or determine compliance with the provisions of Player Contracts; (iii) determine the validity of Player Contracts; (iv) award damages in connection with a proceeding provided for in Section 11 below; (v) award declaratory relief in connection with a proceeding initiated by a Team to determine whether such Team may properly terminate a Player Contract pursuant to paragraph 16(a) of such Contract, and what, if any, liability such Team would incur as a result of such termination; and (vi) resolve disputes arising under Article VII, Section 3(d)(5), Article XXII, Section 5, Article XXVI, and Article XXXIII in the manner set forth therein. Notwithstanding the foregoing or any other provision of this Agreement or the Uniform Player Contract, the Grievance Arbitrator shall not have jurisdiction or authority to add to, detract from, or alter in any way the provisions of this Agreement (including the provisions of this subsection) or any Player Contract. Nor, in the absence of agreement by the NBA and the Players Association, shall the Grievance Arbitrator have jurisdiction or authority to resolve questions of substantive, as opposed to procedural, arbitrability. Questions of substantive arbitrability shall include the question of whether an arbitrator provided for by the terms of this Agreement, as opposed to the Commissioner (or his designee), has jurisdiction to hear or resolve a particular dispute and such questions shall be determined in a judicial proceeding to be venued in the United States District Court for the Southern District of New York.

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Section 6. Appointment and Replacement of Grievance Arbitrator.
(a) The parties to this Agreement shall agree upon the appointment of a Grievance Arbitrator, who shall serve for the duration of this Agreement; provided, however, that as of September 1, 2006, and as of each successive September 1, either of the parties to this Agreement may discharge the Grievance Arbitrator by serving written notice upon him and upon the other party to this Agreement during the period July 27 through August 1 immediately preceding each such September 1; and provided, further, that as of the April 30 of the last Season covered by this Agreement (or any extension thereof), either of the parties may discharge the Grievance Arbitrator by serving written notice upon him and upon the other party to this Agreement during the period March 26 through March 31 immediately preceding such April 30. A Grievance Arbitrator as to whom a notice of discharge has been served shall continue to have jurisdiction only with respect to (i) Grievances as to which a hearing has been commenced or scheduled for a date certain and (ii) Grievances filed within the thirty (30) day period preceding the service of a notice of discharge; provided, however, that a hearing with respect to Grievances referred to in this subsection (ii) must commence no later than thirty (30) days following the effective date of the Grievance Arbitrator’s discharge.

(b) If the Grievance Arbitrator is discharged (or resigns), the parties shall agree upon a successor Grievance Arbitrator. In the absence of such agreement, the parties shall jointly request the International Institute for Conflict Prevention and Resolution (the “CPR Institute”) (or such other organization(s) as the parties may agree upon) to submit to the parties a list of eleven (11) attorneys, none of whom shall have, nor whose firm shall have, represented within the past five (5) years any professional athletes; agents or other representatives of professional athletes; labor organizations representing athletes; sports leagues, governing bodies, or their affiliates; sports teams or their affiliates; or owners in any professional sport. If, within seven (7) days from the receipt of such list, the parties fail to agree upon the selection of a Grievance Arbitrator from among the names on such list, they shall return that list, with up to five (5) names deleted therefrom by each party, to the CPR Institute (or such other organization as the parties may have agreed upon), and the CPR Institute (or such other organization) shall choose a new Grievance Arbitrator from the names remaining on such list.

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Section 7. Injury Grievances.
(a) If a party to a dispute arising under paragraphs 7, 16(a)(iii), 16(b), or 16(c) of a Uniform Player Contract so elects, the NBA and the Players Association shall agree upon a neutral physician or (in the absence of such agreement) jointly request that the President of the American College of Orthopedic Surgeons (or such other similar organization as the NBA and the Players Association agree may be most appropriate to the issues in dispute) designate a physician who has no relationship with any party covered by this Agreement who shall, for purposes of the dispute, serve as an independent medical expert and consultant to the Grievance Arbitrator. Such independent medical expert shall conduct a physical examination of the player; review such medical records and reports relating to the player that bear on the issues in dispute; and prepare a written report of the player’s medical condition, which report shall address any specific medical questions submitted to the independent medical expert by joint agreement of the parties or by the Grievance Arbitrator. Any reports, opinions, or conclusions of the independent medical expert shall be provided in writing to the parties in advance of any hearing scheduled pursuant to Section 3 above. The opinions and conclusions of the independent medical expert shall be accorded such weight as the Grievance Arbitrator deems appropriate. The fees and costs of the independent medical expert shall be borne equally by both sides.

(b) During the course of any arbitration proceeding, the Grievance Arbitrator may, by appropriate process, require any person (including, but not limited to, a Team and a Team physician, and a player and any physician consulted by such player) to provide to the player or that player’s Team, as the case may be, all medical information in the possession of any person relating to the subject matter of the arbitration.

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Section 8. Special Procedures with Respect to Player Discipline.
(a) A dispute involving (i) a fine of $50,000 or less or a suspension of twelve (12) games or less (or both such fine and suspension) imposed upon a player by the Commissioner (or his designee) for conduct on the playing court (as defined in Section 8(c) below), or (ii) action taken by the Commissioner (or his designee) (A) concerning the preservation of the integrity of, or the maintenance of public confidence in, the game of basketball and (B) resulting in a financial impact on the player of $50,000 or less, shall not give rise to a Grievance, shall not be subject to a hearing before, or resolution by, the Grievance Arbitrator, and shall not be determined by arbitration; but instead shall be processed exclusively as an “Appeal” before the Commissioner (or his designee) as follows:

(b) A dispute involving (i) a fine of more than $50,000 and/or a suspension of more than twelve (12) games that is imposed upon a player by the Commissioner (or his designee) for conduct on the playing court, or (ii) an action taken by the Commissioner (or his designee) that (A) concerns the preservation of the integrity of, or the maintenance of public confidence in, the game of basketball and (B) results in a financial impact on the player of more than $50,000, shall be processed and determined in the same manner as a Grievance under Sections 2-6 above; provided, however, that the Grievance Arbitrator shall apply an “arbitrary and capricious” standard of review.

(c) As used in this Agreement, “conduct on the playing court” shall mean conduct in any area within an arena (including, but not limited to, locker rooms, vomitories, loading docks, and other back-of-house and underground areas, including those used by television production and other vehicles) at, during or in connection with an NBA Exhibition, All-Star, Regular Season or Playoff game. (By way of example and not limitation, conduct “at” and/or “in connection with” an NBA game shall include conduct engaged in by a player within an arena from the time the player arrives at the arena for an NBA game until the time the player has left the premises of the arena following the conclusion of such game.) Conduct engaged in by a player outside an arena (such as, for example, in a parking lot adjacent to an arena) shall not constitute “conduct on the playing court.”

(d) In the event a matter filed as a Grievance in accordance with the provisions of this Article gives rise to issues involving the integrity of, or public confidence in, the game of basketball, and the financial impact on the player of the action being grieved is $50,000 or less, the Commissioner may, at any stage of its processing, order that the matter be withdrawn from such processing and thereafter be processed in accordance with the appeal procedure provided in Section 8(a) above.

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Section 9. Procedure with Respect to Fine and Suspension Amounts.
In the event that a Grievance or an Appeal challenging a Commissioner or Team-imposed fine and/or suspension is filed in accordance with this Article, the amount of any fine or salary lost by virtue of the suspension shall be deposited in a separate interest-bearing account maintained for such fines or suspension-related amounts. The NBA shall provide written notice to the Players Association of the date and amount of each deposit made pursuant to this Section 9 by delivering to the Players Association monthly statements reflecting the investment activity in such account. In the absence of agreement between the NBA and the Players Association, the Grievance Arbitrator (in resolving a Grievance, and in a manner consistent with his determination of such Grievance) or the Commissioner (or his designee) (in resolving an Appeal, and in a manner consistent with his determination of such Appeal) shall determine the amount of the deposited funds to be payable to the player, the Team, or the NBA, and any interest earned on such deposit shall be allocated to the parties in proportion thereto.

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Section 10. Disputes with Respect to the Terms of a Player Contract.
(a) If either the NBA or the Players Association asserts that a term or provision of a Player Contract is not permitted by this Agreement, either may have the dispute involving such Contract term or provision resolved by initiating a Grievance. If such a Grievance is initiated by the NBA, the thirty-day time period referred to in Section 2(c) above shall commence with the date upon which the NBA received the Player Contract (or amendment thereto) containing the disputed term or provision. If such a Grievance is initiated by the Players Association, the thirty-day time period referred to in Section 2(c) above shall commence with the date upon which the Player Contract (or amendment thereto) containing the disputed term or provision was first made available for inspection by the Players Association.

(b) If, as a result of the Grievance and Arbitration procedure, a Player Contract is found to contain a term or provision that is not permitted by this Agreement, then (i) such term or provision shall be deleted from the Player Contract and have no force or effect, and the Player Contract shall in all other respects remain valid and binding upon the parties thereto, and (ii) if the Team and the player agree to reform or revise the Player Contract within thirty days of the Grievance Arbitrator’s decision, such reformation or revision shall be exempted from the rules governing Renegotiations contained in Article VII, Section 7(c).

(c) Nothing set forth above shall affect in any manner the Commissioner’s authority with respect to the approval or disapproval of Player Contracts pursuant to paragraph 11 of the Uniform Player Contract; and the fact that the Commissioner has approved or not disapproved a Player Contract containing a term or provision not permitted by this Agreement shall not be referred to in the course of the Grievance and Arbitration procedure and shall not be considered in any manner or for any purpose by the Grievance Arbitrator in connection with a dispute concerning that Player Contract.

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Section 11. Disputes with Respect to Players Under Contract Who Withhold Playing Services.
In addition to any other rights a Team may have under contract or law, including those under paragraph 9 of a Uniform Player Contract, a Team may recover damages in a proceeding before the Grievance Arbitrator when a player who is party to a currently effective Player Contract fails or refuses to render the services called for under the Player Contract. In any such proceeding, where the Grievance Arbitrator determines that damages are continuing to accrue at the time of the hearing, the Arbitrator shall award such damages (if any) as the Team has by then sustained, and the hearing shall remain open to enable the submission of proof on the issue of continuing damages.

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Section 12. Expedited Procedure.
(a) Notwithstanding the foregoing, in the event of a dispute arising under Article XVII, Article XXX, or Article XXXI, Section 11 of this Agreement, or under paragraph 15 of a Uniform Player Contract (but only insofar as such paragraph provides), or in the event of an alleged breach by a player of paragraph 9 of a Uniform Player Contract, the NBA or the Players Association may request that such dispute or alleged breach be referred immediately to the Grievance Arbitrator. In any such case, the dispute or alleged breach shall be asserted by notice in writing or by facsimile given to the other party or parties, the NBA, the Players Association, and the Grievance Arbitrator.

(b) The Grievance Arbitrator shall convene a hearing with respect to such dispute or alleged breach at the earliest possible time, but in no event later than 24 hours following his receipt of such notice. If the Grievance Arbitrator is not immediately available and the parties are unable to agree upon another arbitrator to hear and resolve such dispute, the parties shall select an arbitrator in accordance with the procedures set forth in Section 6(b) above.

(c) The award, which shall be issued not later than twenty-four (24) hours after the conclusion of the hearing, shall be in writing and may be issued with or without opinion. If any party desires an opinion, one shall be issued but its issuance shall not delay compliance with or enforcement of the award. The award shall constitute full, final and complete disposition of the dispute or alleged breach, and shall be binding upon the player(s) and Team(s) involved and the parties to this Agreement.

(d) The failure of any party to attend the hearing as scheduled shall not delay the hearing, and the Grievance Arbitrator (or an arbitrator selected in accordance with the procedures set forth in Section 6(b) above, as the case may be) shall be authorized to proceed to take evidence and issue an award as though such party were present.

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Section 13. Threshold Amount for Certain Grievances.
A dispute concerning a fine or suspension (or a combination thereof) imposed by a Team may be heard and resolved by the Grievance Arbitrator only if it results in a financial impact on the player of more than $5,000. A dispute concerning a fine or suspension (or a combination thereof) imposed by the Commissioner (or his designee) other than for conduct on the playing court (as defined in Section 8(c) above) may be heard and resolved by the Grievance Arbitrator only if it results in a financial impact on the player of more than $50,000.

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Section 14. Miscellaneous.
(a) Each of the time limits set forth herein may be extended by mutual agreement of the parties involved.

(b) In any meeting or hearing provided for by this Article XXXI, a player may be accompanied by a representative of the Players Association who may participate in such meeting or hearing and represent the player. In any such meeting or hearing, the NBA and any Team involved may attend and be accompanied by a representative who may participate in such meeting or hearing and represent the NBA and any such Team.

(c) The parties recognize that a player may be subjected to disciplinary action for just cause by his Team or by the Commissioner (or his designee). Therefore, in Grievances regarding discipline, the issue to be resolved shall be whether there has been just cause for the penalty imposed.

(d) Nothing contained herein shall excuse a player from prompt compliance with any discipline imposed upon him. If discipline imposed upon a player is determined to be improper by a final disposition under this Article XXXI, the player shall promptly be made whole.

(e) Nothing contained in this Article XXXI shall be deemed to limit or impair the right of the NBA or any Team to impose discipline upon a player(s) or to take any other action not inconsistent with the provisions of a Player Contract or this Agreement.

(f) Subject to Section 3(c) above, all costs of arbitration, including the fees and expenses of the Grievance Arbitrator, shall be borne equally by the parties thereto; but each party shall bear the cost of its own witnesses, counsel, and the like.

(g) A Team shall not be required to terminate a Player Contract under the NBA waiver procedure as a condition precedent to the filing of a Grievance with respect to such Player Contract. To the extent that the decision of the Impartial Arbitrator in In re Otis Birdsong, Dec. No. 87-2, May 14, 1987, is inconsistent with the foregoing, it is hereby overruled.

(h) In a proceeding involving the interpretation of a Player Contract, no Uniform Player Contract (whether signed during the term of this Agreement or during the term of any prior collective bargaining agreement between the parties), or amendment thereto, other than the Player Contract or amendment that is the subject of dispute shall be admissible as evidence of the meaning of, or of the parties’ intentions with respect to, any individually-negotiated terms or provisions in the Player Contract or amendment that is the subject of dispute.

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