Three Major Hurdles in the Coming NBA CBA Negotiations

The current NBA Collective Bargaining Agreement (CBA) is set to expire after the 2023/2024 season but both sides have an opt out exercise as early as this December. After observing the labor strike that delayed the start of the MLB season, progress is already being made between the National Basketball Players Association (NBPA) and the league to ensure basketball isn’t affected.[1]

Let’s examine three major sticking points for the upcoming CBA:

Tying Compensation to Games Played

The biggest issue between the NBPA and the league during this latest round of negotiations could define the next decade.[2] If you examine the history of the NBA, it was a league largely controlled by ownership. However, the balance of power began to tilt towards the players sometime in the early 2010s. Many mark the official start of the “player empowerment era” as July 8, 2010, when Lebron James made The Decision to leave Cleveland and join the Miami Heat.

The last decade plus in the NBA has revolved around superstars taking unprecedented action to control their own destiny. Stars have hopped franchises to team up with each other, signed shorter contracts to constantly put pressure on their teams, and in some rare instances, simply refused to play until their demands like a trade request are answered. It’s become a viable teambuilding strategy for front offices to simply stay patient because the next disgruntled superstar is waiting just around the corner. And when that happens, teams must be ready to pounce.

Longtime NBA fans aren’t accustomed to players exerting this much power. On the other side of the fence, modern fans view it as players recognizing their value and acting accordingly. You can’t put a price on what superstars mean to the league, so why shouldn’t they call the shots?

This tug of war for power between players and franchises may soon be coming to a head. I previously outlined the grievance filed by Ben Simmons against the Philadelphia 76ers as a major event for the future of the NBA. Simmons demanded a trade away from the 76ers because he was unhappy with the franchise. To gain leverage, Simmons refused to play citing various injuries including mental health. The 76ers responded by not paying Simmons for the time he was away from the team.

Some want to analyze this battle between Simmons and the 76ers as any other employment contract – simply put Simmons didn’t show up for work, so he shouldn’t be paid. But Simmons isn’t your typical employee involved in a dispute with his employer. There’s very few on Earth that can do what Simmons can on a basketball court. Because of that, NBA players are afforded leeway in their job duties that’s unique to their status as a professional athlete. The harsh reality is they are treated differently because they deserve to be – they are irreplaceable in every sense of the world.

But is there a tipping point?

In negotiations for the next CBA, the league will argue that the pendulum has swung too far. To be compensated the handsome amounts they are, the players must be on the court. This is where matters get complicated because players missing time for injury shouldn’t be penalized. Stars have missed games due to injury at an alarming clip over the past several years so the NBPA would never entertain talks that put those players at risk of losing money they already signed for.

Currently, the league doesn’t have a process that stops players from sitting out and unethically claiming injury when they aren’t satisfied with their team. A solution for disputes similar to the Simmons situation is that the league employs a neutral third party to immediately make a ruling. If Simmons was made aware from the onset that he wouldn’t be paid for missing games, maybe he’s given extra incentive for him to report to the 76ers and put their differences aside.

It paints a grim picture of the status of players and their teams that the dynamic has gotten so hostile that the leagues needs an arbitrator on standby. But this may be the new reality.

An additional fix could be harbored within contracts themselves. The league may look to formalize bonus structures that can be achieved based on games played. If a player appears in 80% of his team’s games, he would be eligible for an additional payday. Incentives are already commonplace among NBA contracts, but the league may want to tie more money to them to prevent players from holding out. For example, the league may opt for a player only being eligible for a supermax if they meet a specific games played quota in the previous three seasons. NBA contracts are guaranteed and that’s not changing. But expect to see creative ways to push back to get star players on the court.

Reducing the Number of Games

This sticking point also relates to the amount of time superstars are missing on the court. The NBA has played an 82-game season since 1967. But the rise of load management where players sit out for rest purposes has continued to trend upwards since the last CBA was signed. The NBA attempted to curtail load management by disallowing resting healthy players on nationally televised games. But it’s an easy hurdle for teams to get by, as they can just place a player on the injury report with “back soreness” and the league then finds themselves in a dicey spot questioning the legitimacy of injury designations.

A solution to the load management issue is decreasing the amount of games. Rumors are that the NBA is eying 72 or 68 as a possible number. As with any decision the league makes, the ultimate question is how this will affect the pockets of both ownership and players. The drawbacks against decreasing the amount of games are obvious – less money for everyone. But the NBA is set to sign a new television deal in 2025, with their sights set on a deal worth $8 billion annually.[3] That new television deal money could more than offset the lost revenue by losing ten regular season games.

The one additional factor at play is the impact this will have on the record books. With the opposite effect of football increasing the regular season game total, it will be more difficult for modern basketball players to accumulate the stat totals to join players of the past on all-time record lists. The NBA may ultimately not care about this, but if the change happens don’t expect anybody to catch the all-time greats anytime soon.

All-NBA Voting

It’s difficult for the general public to feel bad for NBA players when it comes to their financial situation. But the one example where a player may be unfairly hurt by the compensation structure under the current CBA is how it relates to All-NBA voting.

Each year a group of NBA media members vote on their first, second, and third All-NBA teams to showcase the top 15 players in the league. Historically, the All-NBA teams provide a clear snapshot of the best players in the league in a given year. It’s an accurate benchmark. But the recent CBA signed in 2017 started tying financials to All-NBA. To qualify for a supermax contract extension a player must have spent 7 years in the NBA, still be with his original team (or a team that acquired him via trade) and meet one of the following conditions:

1. Named to All-NBA first, second or third team in immediately preceding season or in two of last three years

2. Named Defensive Player of the Year in immediately preceding season or in two of last three years

3. Named NBA MVP during one of last three seasons

Suddenly, media members voting on All-NBA directly controlled the earning capacity of NBA superstars. Predictably, some players have spoken out against this.

Draymond Green, via his Instagram story, criticized the process in which media members take personal shots at players and then later control what contracts they qualify for. The modern NBA superstar seems to constantly be at war with certain media members, and the NBA may look to alleviate the tension by lowering the stakes of media-given awards. Not tying these awards to compensation or changing who votes on All-NBA could be a solution explored in the latest negotiations.

Matt 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 and find him on Linkedin at https://www.linkedin.com/in/matthew-netti-ba5787a3/. You can find all his work at www.mattnetti.com

[1] Sam Quinn, NBA unlikely to follow MLB's lead with a lockout when current CBA expires after 2023-24 season, per report, CBS Sports (last visited May 11, 2022) https://www.cbssports.com/nba/news/nba-unlikely-to-follow-mlbs-lead-with-a-lockout-when-current-cba-expires-after-2023-24-season-per-report/. [2] Jake Fischer, Sources: Kyrie Irving, Ben Simmons Sagas Could Lead to NBA Rule Changes, Bleacher Report (last visited May 11, 2022) https://bleacherreport.com/articles/2949384-sources-kyrie-irving-ben-simmons-sagas-could-lead-to-nba-rule-changes. [3] Michael Kaskey-Blomain, NBA aiming for new TV deal worth $75 billion which could lead to large increase in salary cap, per report, CBS Sports (last visited May 11, 2022) https://www.cbssports.com/nba/news/nba-aiming-for-new-tv-deal-worth-75-billion-which-could-lead-to-large-increase-in-salary-cap-per-report/.