With the start of the 2021-22 NBA season two weeks away, about 5% of NBA players remain unvaccinated against COVID-19. A recent glut of stories on the vaccine status of players has focused on the holdouts and advocates for personal choice and privacy, including Brooklyn Nets guard Kyrie Irving, Orlando Magic forward Jonathan Isaac and, until recently, Golden State Warriors forward Andrew Wiggins.
While the NBA hasn’t negotiated a vaccine mandate with its players, city laws like those in New York and San Francisco take precedent over one union’s agreement with an employer. Under the law, though, there is more clarity than confusion, and while it appears players like Irving and Wiggins won’t be paid if they miss games due to these municipal rules, the situation has prompted debate about players’ rights and league authority. And it puts a star like Irving, who serves as a vice president on the union’s executive committee, at the center of a contested American workplace debate.
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As a starting point, the NBA does not unilaterally impose rules pertaining to players’ employment. The league and the National Basketball Players Association (NBPA) bargain what labor law terms “mandatory subjects of bargaining.” Those subjects include players’ wages, hours and other working conditions, such as health and safety protocols. This bargaining is required for a union-management relationship. That is different from the NBA directly setting protocols or demanding vaccination for non-unionized employees, such as staff who work in the league’s headquarters.
The NBA and NBPA have agreed to COVID-related protocols for the upcoming season. According to league sources, some of those protocols are tentative and require additional negotiation but are expected to be in place by the start of the season. Unvaccinated players will be tested more often, a policy consistent with many workplaces.
The league, which (like the union) has obvious financial stakes in players being healthy, has proposed a vaccine requirement for players in addition to the one in place for support staff. The NBPA has thus far resisted. In contrast, the NBA and National Basketball Referees Association negotiated a vaccine requirement for referees.
As members of a union, NBA players are bound by agreements their union negotiates. A player can freely express opposition and share concerns with the NBPA player representative for his team. The player can also raise worries with members of the NBPA executive committee. The committee directs union policymaking and plays a crucial role in the shaping of health and safety policies. The committee has nine members, six of whom are vice presidents, one of whom is Irving.
It’s common for a union to negotiate policies that not every member supports. It’s hardly surprising that the organization’s more than 500 NBA players do not share identical views on COVID policies (or any other topic).
Outside of NBA-NBPA control are government-imposed vaccine requirements. In New York City, Mayor Bill de Blasio has issued an executive order which requires proof of vaccination—defined as having received at least one dose—for entry into professional sports arenas, including Madison Square Garden and the Barclays Center.
The order applies to New York Knicks players (all of whom are vaccinated) and Nets players, regardless of their residence. The order doesn’t apply to players on other teams who aren’t NYC residents. Violators are initially fined not less than $1,000. Fines escalate for repeat offenders, who after the third offense can be fined more than $5,000. As private entities, the NBA and NBPA can’t bargain around the order. It’s the law.
San Francisco’s Department of Public Health has issued an order that will impact Warriors players, but not visiting teams’ players, beginning Oct. 13. They will need proof of full vaccination—defined as two weeks after the second shot of Pfizer or Moderna, or the one Johnson & Johnson shot—for entry into the Chase Center. The order explicitly permits exemptions for religious beliefs.
Wiggins sought a religious exemption from the NBA due to San Francisco’s vaccine requirement. Wiggins’ religious-based arguments aren’t known, and the NBA provided no reasoning to accompany its announcement of a denial.
San Francisco’s policy instructs that an employee seeking a religious exemption must sign, under penalty of perjury, a statement expressing that they are declining vaccination based on their religious beliefs. The policy defines “religious beliefs” as “a sincerely held religious belief, practice, or observance protected by state or federal law.” League sources indicate this standard was applied to Wiggins’s application. The NBPA hasn’t challenged the denial of Wiggins, whose coach, Steve Kerr, told reporters on Sunday Wiggins has been vaccinated..
As to the denial of pay to unvaccinated players barred from NBA arenas, the UPC supplies relevant language. The UPC—protected by labor law as a CBA exhibit—requires that players report to work and maintain a physical condition sufficient to play. A player who renders himself ineligible on account of declining a vaccine required by a city or public health agency for entry into an arena would violate the UPC.
Players who wish to challenge government-imposed vaccine requirements or NBA-NBPA policies have few options, none of which are promising.
They could join ongoing legal challenges against government-imposed vaccine mandates or initiate their own challenges. Those efforts face long odds given longstanding U.S. Supreme Court precedent authorizing vaccine requirements.
Players could also sue both the NBPA for breach of fair representation and the NBA for violating collectively bargained policies. Players would assert that the NBPA failed to adequately represent unvaccinated players and unreasonably relinquished their rights or acted in bad faith. Similarly, the players would insist the NBA exceeded discretion in interpreting COVID and other bargained policies. Such a lawsuit would face numerous hurdles. Among them: Players are bound by collectively bargained grievance procedures that foreclose employment-related lawsuits.
Alternatively, a player could file an unfair labor practices (ULP) charge against the NBPA with the National Labor Relations Board. The charge could maintain that NBPA leaders were close-minded to members’ views and refused to bargain in good faith. Like a lawsuit, a ULP charge would likely prove more symbolic than effective. It would take months to resolve, and relatively few charges lead to the issuance of NLRB complaints. To that point, in 2020, there were 15,869 ULP charges, of which only 809 (5.1%) generated complaints. A player like Irving, moreover, would be in an awkward spot to take on a union of which he is an elected leader.
Given that a very high percentage of NBA players are already vaccinated and given that (current) government-imposed vaccine requirements only affect three of the 30 teams, the NBA appears to be in overall good shape, vaccine-wise, entering the 2021-22 season.
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