Ben Simmons’ Contract Holdout and Legal Tightrope

You hear the statement when athletes attempt to place their work in perspective ­– professional sports is a business. It’s true, despite the intoxicating elements of loyalty and fandom that often blurs reality.

For nearly two decades, Tom Brady never seemed like a New England Patriots employee. Instead, in the hearts of all New Englanders, Brady was this angelic figure that led the team to Super Bowls. It only started to feel like Brady was an employee when contract talks between the quarterback and the organization became public, and ultimately the two sides parted ways. Professional sports only begin to feel like a business when issues between a player and team start to bubble, and the two sides become pitted against one another.

Proof in point is the Ben Simmons situation in Philadelphia. Simmons, the former 2016 #1 draft pick, was declared the savior of the 76ers franchise. But the honeymoon didn’t last forever, and Simmons suddenly finds himself as public enemy #1 in the city of brotherly love. The 76ers and Simmons have undergone a falling-out which has led to a trade request, a contract holdout, and Simmons’ jersey being set on fire in the city that used to embrace him.

After the 2019 season, when both sides could still look each other in the eyes, Simmons signed a five-year $177 million contract extension with the 76ers. They agreed to continue their marriage and work together to bring a championship to Philadelphia, the first since 1983.

The very next season the Simmons/76ers relationship began to dissolve when Simmons’ name was floated in trade rumors for James Harden, which would have sent Simmons to Houston. Although the trade never occurred and James Harden was dealt to the Brooklyn Nets, the damage was already done and no amount of apologies or couples therapy could save it.

To add fuel to the fire, the 76ers flamed out in the 2021 playoffs largely in part because of Simmons’ poor play. In their second round exit against the Hawks, Simmons averaged just 9.9 points per game and shot a woeful 33% from the free throw line. Throughout the series, Simmons was visibly battling mental barriers that culminated with passing up a wide-open dunk with under four minutes to play in the decisive game 7. Passing up that dunk was the equivalent of a professional golfer missing a 3-foot gimme to close out a tournament. The 76ers crowd audibly gasped at the sight of an NBA superstar crumbling before their eyes.

After the loss, 76ers head coach Doc Rivers was asked if Ben Simmons could play point guard on a championship team. Rivers certainly didn’t have the $177 million dollar man’s back when he indifferently responded, “I don’t know”.[1]

Unsurprisingly, Ben Simmons requested a trade from the 76ers this offseason. Reportedly, he isn’t comfortable playing for Doc Rivers or in front of Philadelphia fans ever again and has threatened to holdout until the team trades him. 76ers ownership has attempted to reconcile the relationship, but Simmons hasn’t budged – the bridge tying Simmons to Philadelphia has already been burned.[2]

76ers training camp began last week and Simmons, true to his word, was nowhere to be found. The 76ers heard Simmons’ message loud and clear and countered with a move of their own:

Teams must walk a delicate tightrope when dealing with a disgruntled superstar. Of course, the 76ers would love Simmons to report to camp, fabricate a smile, and perform up to his contract at least until they can field realistic trade offers and send him packing. They could keep stacking fines on Simmons for failing to uphold his duties under contract and send a message to the rest of the league that player insubordination will not be tolerated. In a league where superstars take notice at how other players are being treated by their team/employer, this is a risky proposition. Simmons and his team are relying on this dissension to create enough chaos around the 76ers organization to give the superstar leverage.

This isn’t the first time a high-profile athlete was dissatisfied with their contract and chose to stay on the sidelines. In 2018, Le’Veon Bell forfeited $14.5 million when he sat out the entire season for the Pittsburgh Steelers because he was unhappy he didn’t secure a long-term contract from the team. The next season Bell signed a four-year $54 million contract with the New York Jets. When all was said and done Bell still got paid, but he never recovered the $14.5 million left on the table from Pittsburgh.[3]

In 1992, the #4 overall pick in the NBA Draft, Jim Jackson, only played 28 games his rookie season due to a lengthy contract holdout with the Dallas Mavericks. Eventually, Jackson’s agent Mark Termini negotiated a 6-year $20 million contract. Shockingly, Jackson was paid for the entire 1992 season despite playing in less than half of the games.[4] In what has since been known as the “Termini Doctrine”, star players can push for being paid for the time spent during contract holdouts even when they are not playing for their team. If the Simmons saga continues, his agent Rich Paul will likely attempt to employ this strategy and get Simmons all his money from the 76ers, even while he is nowhere near the team.

NBA contracts are lengthy and complex, but at the very basic level they operate like any other employment contract where each side must fulfil duties and obligations. Here ­– Ben Simmons must play basketball, and the 76ers must pay Ben Simmons. Currently, Simmons is in breach of contract for “failing to render services” under Article VI Section I of the NBA’s Collective Bargaining Agreement. The 76ers interpret this as he no longer has to be paid.

So where do we go from here? If the stalemate continues, the two sides can enter arbitration and employ a neutral third-party decide their fate. This process can be unpredictable and take months to play out. Alternatively, the 76ers can give into Simmons’ demands and send him to another team to reset his NBA career. It’s becoming more unlikely Ben Simmons will ever wear a Philadelphia 76ers jersey again. Now it’s just a question of where and when he will play next, and how much money this saga will cost him.

Matthew Netti is a 2021 graduate from Northeastern University School of Law. He currently works as an attorney fellow at the Office of the General Counsel for Northeastern University. You can follow him on twitter and instagram @MattNettiMN.

[1] Scott Polacek, 76ers’ Doc Rivers: “I Don’t Know” If Ben Simmons Can Play PG on Championship Team, Bleacher Report (last visited Oct. 3, 2021) https://bleacherreport.com/articles/10006302-76ers-doc-rivers-i-dont-know-if-ben-simmons-can-play-pg-on-championship-team. [2] Dan Feldman, Report: Before He Threatened Holdout, 76ers Wanted to Keep Ben Simmons Into the Season, NBC Sports (last visited Oct. 3, 2021) https://nba.nbcsports.com/2021/09/09/report-before-he-threatened-holdout-76ers-wanted-to-keep-ben-simmons-into-season/.

[3] Tyler Lauletta, Le’Veon Bell Reportedly Lands 4-Year $52.5 Million Contract With the Jets After Holding Out the Entire 2018 Season, Business Insider (last visited Oct. 3 2021) https://www.businessinsider.com/leveon-bell-jets-hold-out-2019-3. [4] Dallas News, Ex-Mav Jim Jackson Divulges Details of his 1992 Holdout Explains Why Three Js Era Never Panned Out (last visited Oct. 3, 2021) https://www.dallasnews.com/sports/mavericks/2014/01/26/ex-mav-jim-jackson-divulges-details-of-his-1992-holdout-explains-why-three-js-era-never-panned-out/.