The NBA’s Vaccine Quandaries

The big NBA news of the last few days has mostly related to whether/where Ben Simmons will be traded.  Another story that has been lurking in the background is how the NBA and the NBPA will deal with issue of COVID and vaccines and what the NBA would do with players who refuse to be vaccinated.  Let’s review what’s happened so far to see what the looming issues are:

-About 10 days ago, Adrian Wojnarowski reported that 85% of players had been vaccinated.

-The NBA would not mandate that players get vaccinated but that vaccinated players would be afforded much more favorable protocols.  Unvaccinated players will have to test daily and quarantine if they came in close contact with the virus (even without a positive test), while vaccinated players would not.

-Teams would be required to comply with local rules regarding vaccine requirements.  Right now, New York City and San Francisco have local law requiring players to be vaccinated to enter the local arenas.

This all seemed pretty straightforward but new reporting indicated some potential monkey wrenches.  Yesterday, Matt Sullivan of Rolling Stone dropped a story detailing how some star players are trying to avoid the vaccine and “basketball confronts its own civil war.”  The major names who seem to be vocally anti-vaccine are Andrew Wiggins, Jonathan Isaac, and Kyrie Irving.  Wiggins and Kyrie are in particularly tough situations because they play home games in areas that require vaccines to enter the arena.  The article also details some questionable opinions regarding the vaccine, particularly by Irving’s family.

What happens to these NBA holdouts?

I’m no expert on NBA labor issues but the NBA’s CBA clearly details that any arguments will be made in the context of the “Player Conduct” provision.  This provision states that a team can punish a player “when a player fails or refuses, without proper and reasonable cause or excuse, to render the services required by a Player Contract or this Agreement, or when a player is, for proper cause, suspended by his Team or the NBA in accordance with the terms of such Contract or this Agreement.”

This begs the question whether a player who can’t play a game because he refuses to get vaccinated is essentially refusing, without reasonable cause, to render services.  Rarely are contracts terminated for cause and any dispute is usually the subject of confidential arbitration.  Usually, contracts are terminated for cause due to drug issues, weight issues (remember, Hot Plate Williams?), or another clear contract violation, for example when Jay Williams seriously injured himself in a motorcycle accident (he ultimately negotiated a buyout despite violating the contract). 

COVID is new territory but it would seem that a player refusing to comply with local law probably would be considered an unreasonable position.  For example, if a player refused to comply with a local law by bringing illegal substances or an unlicensed gun into the arena, his absence would likely be considered an unreasonable refusal to render services.  Regardless of what one might feel about the law, it must be obeyed.

How does this play out for the players who refuse to vaccinate?

That’s a darn good question but it would probably depend on the particular situation.  I can’t see a team standing by if a bench player refused to comply.  Such a player probably doesn’t impart enough value to deal with the drama and uncertainty. 

Okay, but what about the specific players noted in the Rolling Stone article?

Sure, we can run through them….

A.            Kyrie Irving

Kyrie he will be scheduled to play 41 games in Brooklyn, two in MSG, and one in San Francisco.  Kyrie’s can protect his paycheck (and potentially his full contract) through one legal path, getting an exemption from the New York City law.   The law makes clear that no unvaccinated people can enter indoor entertainment venues and that the employer and owner of the facility have a duty to prevent unvaccinated staff from entering. 

The law has been challenged by a few other New York unions so far, with little success.  In a Teachers Union dispute, an arbitrator ruled that exemptions can only been granted where the person has “a documented contraindication” to the vaccine or a valid religious objection.  The religious exemption requires a written statement from clergy supporting the application and will not be granted if any leaders of the religion have spoken publicly in favor of the vaccine. 

For example, Christian Scientists have consistently refused vaccines even before the pandemic and thus any such religious application would be considered legitimate.  Conversely, the arbitrator held that there is no religious exemption available where the “objection is personal, political, or philosophical in nature.”  I have no idea what Kyrie’s objection is but, based on what I’ve read, it sounds like his objection is personal and thus unlikely to be legally valid.

Irving, however, does have some leverage to protect his paycheck based on his star ability and the fact that he is a big shot on the team.  The Nets sort of tolerated his previous mercurial conduct (remember, when he went AWOL last year?) because Irving is a great player and he is tight with the Nets’ other stars.  Still, Irving makes $35 million this year and I doubt he could miss about half those games and get paid for that time.   In short, Brooklyn is facing a delicate situation and will probably need to involve Kevin Durant and James Harden to help resolve it (or to make sure that KD and Harden aren’t too irked if the Nets play a little hard ball with Irving).

B.            Andrew Wiggins

Wiggins is an even more complicated situation.  He is not nearly as good a player as Irving.  How good Wiggins actually is an interesting question but he is certainly not underpaid at $31.6 million this year (and about $34 million next year) on a team that is waaaaay over the luxury tax threshold.  Last year, the Warriors paid $147 million in luxury taxes.  Wiggins’ salary, when you add in the accompanying luxury tax exposure,  actually costs the Warriors well over $100 million. 

The CBA provides that a players base compensation is reduced by 1/145th for the first 20 games missed due to suspension and 1/110th for 20 plus games missed.  The Warriors are not realistically competing for a title this year.  Why wouldn’t the Warriors try to terminate Wiggins’ contract or get him suspended in an effort to reduce the crazy luxury tax burden?  I suspect this calculus was at play when Wiggins applied for, but was denied, a religious exemption to the vaccine by the NBA.  Given all these facts, Wiggins’ resolve will be tested, as he’s realistically risking $65 million if he refuses to get vaccinated.  I imagine he will probably capitulate but we shall wee.

C.            Jonathan Isaac

He plays in Florida, where no local rules exist regarding vaccination.  So far, he’s risking pay checks in NYC and SF (yes, not getting vaccinated creates other risks but we are only talking financial considerations right now).  He’s also one of the key young players on a rebuilding team.  As a result we probably won’t hear much about his vaccination situation.

Is this a big problem for the NBA?

Frankly, I’m skeptical.  In some ways, this Rolling Stone story being blown out of proportion.  It is true that some major names refuse to be vaccinated and their factual bases for doing so are dubious.  Nevertheless, a large portion of the NBA is vaccinated and, while a public battle with stars isn’t a great look, the issue is really a minor footnote when compared to the largescale hesitancy of Americans to get vaccinated.

While vaccine hesitancy has become a cultural clash, the fact is that in the NBA seems to be much more of a financial/strategic issue.  When great players (or highly paid decent players) refuse the vaccine, the remedies available to the teams will force hard decisions.  The reasons why these players refuse to get vaccinated matters to them but not to the CBA.  These players will likely have to put their money where their mouths are.