Kyrie Irving: Not Playing But The Nets Are Stuck Paying

We have new developments in the exhausting, ever-changing saga surrounding Kyrie Irving and his vaccination status. Fans shouldn’t start dusting off their Brooklyn #11 jerseys anytime soon. Irving reportedly still isn’t vaccinated, but his status for the 2021/2022 NBA season has become clearer.

The Brooklyn Nets announced earlier this week that Irving will not be a part-time member of the team for the upcoming NBA season. In terms most of us can understand – Irving needs to show up 40 hours a week or not show up at all. To place this announcement into context, we have to backup and ask why the point guard was ever considered a part-time basketball player in the first place.

I wrote weeks ago on New York City adopting a mandate which required members of the Brooklyn Nets to be vaccinated to play and practice in their home arena. At the time, there was hope this mandate would persuade Irving to become vaccinated and reclaim his status at point guard for the Brooklyn Nets. San Francisco also adopted a similar rule and their vaccination requirement, along with the potential of losing $15 million, was enough to push Golden State Warrior Andrew Wiggins to get the shot and rejoin his team.

Unlike Wiggins, Irving still hasn’t been convinced. Every member of the New York Knicks and Brooklyn Nets has been vaccinated besides Irving. Irving’s thoughts and feelings around the vaccine remain unclear. Irving conducted an Instagram live session on Wednesday night where he attempted to get his side of the story out. He talked for over 20 minutes in which he stated he “was against people losing their jobs to vaccine mandates” and he was coming to this decision “from logic and not emotion.” If Irving is just buying time while he “conducts his own research”, please don’t tell ESPN NBA announcer Jeff Van Gundy.

While a cloud of confusion lays over this entire story, one part remains obvious – Irving’s hesitancy has left the Brooklyn Nets caught between a rock and a hard place.

The Brooklyn Nets have their sights set on an NBA title and Kyrie Irving playing basketball helps them get them there. Unless something changes, the only way Irving plays for the Nets this season is if he joins the team for road games and becomes a part-time player. This week, the Nets shot down that possibility.

Kyrie Irving was set to make $35 million this year. The NBA, along with the Players Union, has already announced that any game a player misses because of his refusal to get vaccinated will cost them a game check. In Irving’s case, game checks amount to a hefty $381,181.22. Based on this announcement from the league, Irving will lose game checks for every home game he remains unvaccinated.[1]

As a result of not receiving the shot, Irving is forfeiting nearly half his salary. So one question remains, what about the other half?

The Nets announced that while they do not welcome Irving’s part-time presence in their organization, they will still pay him as if he were there. That means Irving will be paid half his salary (the half he would have received for playing road games) to sit at home and contemplate his views on modern science and freedom of choice.

This decision is a signal that the Brooklyn Nets and their pro-vax owner Joe Tsai are walking on eggshells.[2] It wasn’t feasible from a basketball standpoint to only have Irving join his teammates on the court for road games. But they also don’t want to upset the superstar in hopes that he eventually joins the team and helps bring a championship to the borough. So, the solution the Nets came up with is to pay Irving his road game checks while the team foots the bill.

In a league that revolves around its superstars, Brooklyn had no choice but to cater to Irving by paying half his salary. The Nets still have players on their current roster, Kevin Durant and James Harden, who remain close to Irving. Revoking his entire salary sends a dangerous message to other superstars around the league.

But for curiosity’s sake, what would happen if the Nets completely turned their back on Irving and withheld his entire pay?

We can break down Irving’s salary into two categories:

· Home games – Irving is ineligible by N.Y.C. mandate so he will not be paid

· Away games – Irving is eligible but the Nets have refused his services

The NBA has not required their players/employees to be vaccinated after it received major pushback from the Players Union. Since then, the league has pushed pro-vaccine information and relied on local mandates to persuade players who remain on the vaccine-shaped fence. The NBA has nothing to do with local mandates being placed on players, and that’s why the league and the Players Union agreed that players who fail to comply with local requirements will not be paid for games missed.

However, by law Irving can still play in road games and it was Brooklyn’s decision to turn him away. If the Nets decided to withhold his entire salary signaling an act of war with Irving, it would almost certainly be challenged by the Players Union. Whether you think it’s realistic to have a player only join the team while residing in hotel rooms or not ­– Irving would still be offering his services to the Nets who are refusing to acctept. Irving hasn’t officially been suspended by the league or his team for violation of contract. If his entire pay was withheld, the Players Union would undoubtedly file a grievance under Article XXXI of the NBA Collective Bargaining Agreement. This battle would be turned over to a neutral third-party arbitrator who would sort out what the Nets owe their point guard.

It’s a fascinating debate if it were to ever happen. Irving is offering his services but only at half the rate. The Brooklyn Nets have zero control over the New York City mandate and can argue that keeping a player onboard for only half the games isn’t sustainable. Therefore, under the Nets line of reasoning, by choosing to only play in half the games Irving is cratering his overall value to the franchise.

All of this is just a hypothetical thought exercise, for now. Brooklyn Nets GM Sean Marks made it clear he won’t be ruffling any feathers and the team will pay Irving half his salary in addition to welcoming him back with open arms if/when he joins full-time.[3] However, in a league that often transforms into a reality television show designed for sports fans, nothing is off the table. We’ll just have to wait and see how this NBA season progresses, with or without Kyrie Irving.

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] Ben Rohrbach, Failure to get vaccinated could cost Nets star Kyrie Irving more than $381K per home game, Yahoo Sports, (last visited Oct. 13, 2021) https://sports.yahoo.com/failure-to-get-vaccinated-could-cost-nets-star-kyrie-irving-more-than-381000-per-home-game-144044969.html. [2] Brian Lewis, Nets owner Joe Tsai’s message to Kyrie Irving amid vaccine drama, NY Post (last visited Oct. 13, 2021) https://nypost.com/2021/09/30/nets-owner-joe-tsais-kyrie-irving-hope-amid-vaccine-drama/. [3] Tim Bontemps, Brooklyn Nets say Kyrie Irving won't play, practice until eligible under local COVID-19 vaccination mandate, ESPN (last visited Oct. 13, 2021) https://www.espn.com/nba/story/_/id/32387481/brooklyn-nets-say-kyrie-irving-play-practice-eligible-local-covid-19-vaccination-mandate.