New Anti-Flopping Rules in the NBA: Fair Game or Unfair Labor Practice?

Last Wednesday the NBA managed to shake up the sports world a full month before the start of the season when it released an outline of its new anti-flopping rules.  According to the policy outline released by the NBA:

“Flopping” will be defined as any physical act that appears to have been intended to cause the referees to call a foul on another player. The primary factor in determining whether a player committed a flop is whether his physical reaction to contact with another player is inconsistent with what would reasonably be expected given the force or direction of the contact.

The penalties start with a warning and scale upward. After the warning, a second flop gets a player a $5,000 fine. A third is $10,000, a fourth $15,000 and a fifth, $30,000. The league is leaving open what happens to a player after that fifth flop, saying, “He will be subject to discipline that is reasonable under the circumstances, including an increased fine and/or suspension.”

This news elicited fairly favorable reviews from most basketball fans, who applaud the noble goal of purporting to get rid of one of the sport’s most annoying strategies.  However, the National Basketball Players Association (NBPA), the union for NBA players, saw it quite differently, and stated almost immediately its intent to file a grievance with the league.

This new rule, which monetarily disciplines players, is not a part of the Collective Bargaining Agreement for the upcoming season and should be procedurally voided, the NBPA is arguing.  In addition to filing a league grievance, NBPA Chief, Billy Hunter announced plans for the union to file an unfair labor practice challenge with the National Labor Relations Board (NLRB), classifying this new rule as “without precedent in our sport or any other sport.”

In defense of the new rule, NBA spokesman Tim Frank characterized the adoption of the new rule as “fully consistent with our rights and obligations under the collective bargaining agreement and the law.”

So who’s right? Is this challenge a mere formality by the NBPA or does it stand a fighting chance?

As far as the law is concerned, Section 8 of the National Labor Relations Act defines one unfair labor practice as “[the refusal of the employer] to bargain collectively with the representatives of his employees.”  Given what has taken place between the league and the NBPA there is somewhat of an argument to be made that this unfair labor practice fits these facts; however, there’s no sign that the league has plainly refused to bargain with the union.

Given that the union has not come out against the stated policy of eliminating flopping from the game, it is highly likely a settlement between the league and the union is well within reach.  The NBPA’s challenges do seem largely procedural, as many players are in agreement that anti-flopping rules are necessary given the current state of the sport.

By Articles Editor Justin Clayton