Re: League Acts to Prevent Baker from signing with new team

[Ryan W <ubiquitous_am_i@xxxxxxxxx>]

Not being a lawyer, but having a pretty solid grasp of
the space-time continuum, I would say that the fact
that Baker is ready to play right now doesn't mean a
God-damned thing.  The point of contention concerns
Baker's fitness to play AT THE TIME THE CONTRACT WAS
VOIDED.  Who cares if became fit to play after that
fact?  According to the agreement between the C's and
Baker, which was OK'ed by the player's association, if
an INDEPENDENT doctor determines that Baker, after his
4th instance of non-compliance, is not fit to play,
the C's have the right to terminate his contract. 
Theoretically, if Baker was deemed fit to play after
his 11th missed game, the C's would still have the
right to terminate his contract. 

The player's union has two main arguments (I'm
dismissing the retarded "he can play right now
argument" mainly because it's premised on other teams'
interest, which is both highly prejudicial to the C's,
since their 'interest' could be fabricated in order to
stick it to the C's, and because their judgment is
irrelevant to determining Vinnie's 'fitness,' since
only a doctor can make that determination): first,
that the Celtics failed to act in good faith in
entering into and later performing the side-agreement
and second that Vinnie was "fit to play" at the time
the contract was voided.

Regarding the good faith argument, it's tough to say
what will happen, mainly since "good faith" has never
been defined and is usually determined on a
case-by-case factual determination.  Not knowing all
the facts, it'll be tough to say which way it'll go. 
There are a few factors in the C's favor, however.  An
independent doctor, chosen by Vinnie, the players'
association and the C's, controls the ultimate
determination of Vinnie's fitness (or lack thereof). 
This insertion of an objective third party seems to
indicate "good faith" on the C's part.  For Vinnie,
he'll probably argue that the C's only entered into
the side agreement because they intended to and
desired to terminate his contract and not because they
were interested in helping him.  First, the C's intent
seems irrelevant.  They surely were attempting to make
a financially responsible agreement with Vinnie
regarding his alcoholism; thus, terminating his
contract was in their minds when they signed the
agreement.  Just because they contemplated the
eventuality of termination doesn't evince a lack of
good faith (especially when the eventuality is
statistically foreseeable with 9 out of 10 alcoholics
relapsing at least once in their lifetimes).  The only
argument that Baker can make is that the C's took
certain actions after the contract with the intent to
cause him to be in non-compliance; this would evince a
lack of good faith.  So far, we heard of nothing along
this avenue.

The stronger argument (of course, like I said, since
good faith is so ill-defined, it's possible that other
factors may be taken into consideration and the lack
of good faith argument becomes stronger) is that Baker
was "fit to play" at the time of the termination. 
This argument will probably be decided according to
competing affidavits from various doctors, since I
don't think an arbitrator can hear witness testimony
(though I could be wrong--Douglas feel free to step in
and correct, just like all good judges relish doing). 
The C's and Baker's reps will present doctors
(including Baccus himself) that will testify to
Baker's fitness at the time of the termination,
presumably from whatever files Baccus kept.  More than
likely, each side will present an expert that supports
their position (such is the nature of expertise).  All
in all, I don't really know how this will turn out.  

One more thing.  Since it is before an arbitrator,
it's possible that neither side gets exactly what they
want.  Arbitrators, more so than the court system, are
guided by a sense of equity and, more often than not,
arbitrators will split the difference, giving
concessions to each side in the name of fairness.  An
arbitrator isn't guided by precedent and can pretty
much do what they want if they think it's fair; even
so much as imposing a compromise that both parties
dislike.  So don't be surprised if it comes out that
C's are on the hook for 'only' 10 of the 35 million
owed Baker; the effect being a forced buyout of the
contract, with Baker becoming a free agent (and that's
why, as the article states, teams can't sign Vinnie;
since he's challenging his termination, one of his
remedies, if he wins, is reinstatement of his
contract, making him Celtic property once again).  

Ryan

P.S. in the real world, this email would cost $250 ;)

--- Josh Ozersky <jozersky@xxxxxxxxxx> wrote:
> Any of you legal eagles have any idea what this
> means for us?  I would
> think that it would weaken our case that Vin is
> unfit to play, no?
> 
> Josh
> 
> NEW YORK (AP) -- The NBA sent a memo to all 29 teams
> telling them they cannot
> sign Vin Baker until his arbitration case is
> decided, prompting an angry
> response Tuesday from the players' union.
> "It is outrageous for the NBA to prevent Vin Baker
> from signing with any NBA
> club," union director Billy Hunter said. "The
> league's action is a clear
> admission that Vin is not only fit to play
> professional basketball, but there
> are numerous teams willing to sign him today."
> 
> Baker's agent, Aaron Goodwin, said the New York
> Knicks, Toronto Raptors and
> Miami Heat all remain interested in Baker, though he
> will not make a choice
> until he is cleared to sign a contract.
> 
> "I just think the kid should be able to play
> basketball. Other than that I
> don't have a comment," Goodwin said.
> 
> The union filed a grievance last month with
> arbitrator Roger Kaplan after the
> Boston Celtics terminated the final 2= seasons of
> Baker's contract. No date
> for a hearing has been set.
> 
> Baker was due to earn $35 million over the remainder
> of his contract. At the
> time of the termination, he had missed 10 games
> while on suspension for
> violating terms of his alcohol treatment program.
> League spokesman Tim Frank confirmed the memo was
> issued. It explained that if
> Baker wins his arbitration case, his contract would
> be reinstated and he'd
> return to the Celtics.
> 
> "He can't sign with someone else if there's a chance
> of going back to the same
> contract," Frank said.
> 
> The union said it would seek a telephone hearing
> Wednesday with Kaplan asking
> for an immediate judgment invalidating the NBA's
> memo and clearing Baker to
> sign.
> 
> "We intend to go to the arbitrator immediately to
> expose this desperate and
> blatant attempt to deprive this player of an
> opportunity to pursue his
> livelihood and demonstrate to the world that he is
> ready, willing and fit to
> play pro basketball," Hunter said.


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