Shooting for the stars but aiming for the moon

It started as a murmur and has quickly grown into a serious roar.

No, I’m not talking about the Oscar buzz around Hugh Jackman’s star turn in Les  Miserables but the campaign by the NBL Players Association  against the league’s points cap.

The NBLPA, for so long a body that had lain dormant, has taken to the media and internet of late to make numerous public statements lambasting the league’s player points system as “restraint of trade”.

The NBLPA has made it clear that the points system is a major bone of contention in the lead-up to the League’s next Collective Bargaining Agreement negotiations at the end of the current 2012/13 season.

"When the collective bargaining agreement comes up at the end of this season, we'll be seeking to have the points system abolished," NBLPA President Jacob Holmes said in an interview with PerthNow.

"We don't see the points system as agreeable as a matter of principal, or in law. It restricts the players, their movement, and restricts their trade.”

The argument around Restraint of Trade is one that rears its head regularly in discussions around salary caps in Australian sport. The NBL is however the first also to operate a Points Cap, where players are rated between one and ten points by the league and clubs given a Total Team Points limit they must also stay under.  

The NBLPA has made clear it believes that that Points Cap is a Restraint of Trade on its players and have recruited Brendan Schwab, the General Secretary of the Australian Athletes Alliance, to help make that argument.

“There can be no justification whatsoever legally to have a point system of any kind in professional team sport,” wrote Schwab in a scathing blog. 

Further, Schwabb went on to state that both the NBL’s Points and Salary Caps were set to go under the microscope of the courts.

“The NBL is a very stark example of a restraint that’s going to come under much greater legal scrutiny throughout Australia’s professional team sports – that is the legal enforceability of salary cap arrangements,” Schwabb wrote. “Based on a series of legal victories – going back to English footballer George Eastham’s successful restraint of trade action against Newcastle United in 1963 – a salary cap can only be justified if it goes no further than is reasonably necessary to protect the legitimate interests of the league and the clubs.”

The question of what is “reasonably necessary” to ensure the league’s and clubs’ interests are adequately looked after is the million dollar question.

Clearly the NBL and Basketball Australia believe that the continuation of the points and salary caps is absolutely necessary.

"The NBL has always worked closely with the NBL Players Association around the institution and management of the points system and we very much welcome the Association's views, however, the NBL has no plans to abolish the points system," an NBL spokesperson said in response to the NBLPA’s campaign against the caps.

"The league views the points system as an important tool in helping continue to build on the past three years of growth.

"Further, any changes to the points system would need to demonstrably improve competition within the NBL."

With both sides in seemingly firmly entrenched positions, the battlelines are drawn and it raises the spectre of a lockout-type situation or even a player strike for the first time in NBL history.

Before we jump to that sort of lose-lose scenario however, it would be wise to examine the validity or otherwise of the NBLPA’s claims.

“Our members have given unanimous support to the eradication of the points cap,” the Players Association tweeted recently. “It goes further than is reasonableness (sic) necessary. Has and is costing players jobs. We have testimony to support this which we will present to the NBL at CBA negotiations.”

So the NBLPA apparently have documented instances of players who have had their careers cut short by the points cap.  Yet a tweet from former Townsville Crocodiles CEO fairly neatly renders any such testimony as pointless.

“Interestingly the points cap has been used by clubs as the excuse (for cutting players),” Smythe tweeted.  “Easier to blame something else then (sic), we chose not to keep you.”

The NBLPA also claims the cap restricts player movement through free agency.  Yet one regular complaint from fans in recent seasons has actually been that too many players have been swapping teams in the off-season, so the argument that it stops free player movement is tenuous at best.

In fact, the NBLPA subsequently made a somewhat contradictory argument after seizing upon comments by European-based Boomers Star David Barlow.

Barlow stated that he felt the points cap was taking away “job security” for the league’s best players.

"One of the main reasons I would want to come back to Australia is for job security, but the points system takes that security away, makes players with higher ratings at risk of losing their job,” Barlow said in an interview. “Why would I want to come home to that?"

So the points cap makes it too difficult for players to move but also means they are forced to move too much apparently.

Others have already pointed out the fact that it is seldom the high points local players who feel the axe and that it is far more likely that it is Barlow’s price tag that is keeping him in Europe.

In December the NBLPA made it clear that it believes the only way forward for the league is to ensure the best players, like Barlow, are brought back to the NBL.

“To be successful the NBL will attract and retain the best talent possible,” the Players Association account tweeted. “Not possible by placing unreasonable restrictions in the way.”

To be fair however NBL teams can sign whoever they want. If they want to go after Barlow or any of his fellow European-based Australians, they can.  Clubs just have to make some tough decisions around the rest of their roster.

Yes, clubs must stay within their total team points limit. Yet if they really do want to sign a specific star player, they can.  Barlow would be a ten-point player, as would Joe Ingles, Brad Newley or even Andrew Bogut for that matter.  It is not the points system that keeps players overseas. 

It does however stop clubs from stockpiling talent and prevents the NBL from seeing the rise of “superclubs” like Manchester United in soccer, which dominate their local competitions regularly.

And that appears to be the real reason behind the NBLPA’s campaign.

The reality is that the points cap has been effective in ensuring that teams don’t completely fill their rosters with superstars. Whilst that might not sound like such a great thing, it is actually important to ensure the long-term financial survival of the clubs. 

Too many teams have shown in the past a willingness to allow their tunnel vision on the championship trophy blind them to the realities of their budgets.  

Whilst the NBLPA has said previously that the players shouldn’t have to suffer restrictions because clubs can’t control their spending, the reality is that nearly all pro leagues impose some restrictions on team spending for this very reason. 

There are also always examples of teams trying to illegally circumvent those spending restrictions in the quest for glory across all sports.  Far better resourced leagues than the NBL have suffered from salary cap rorting despite extensive auditing, so the inclusion of a points cap as an additional internal control is absolutely reasonable.

If the NBL did eliminate the points cap, it would make it far easier for clubs to cheat the salary cap. The NBL simply does not have the resources to investigate adequately the salary cap dealings of all teams in detail, let alone catch any teams arranging third-party payments outside the cap.

Basketball Australia is charged with growing the sport in this country, and it needs a vibrant and sustainable NBL to provide local playing opportunities for elite players and a pathway towards the national team.

On the other hand the NBLPA are mandated by their membership to look out first and foremost for the players’ best interests.  All too often however that translates into pushing for greater financial returns for the top 20 percent of earners rather than the minimum wage earners who could benefit the most from a salary increase.

The points cap has been in place in the NBL since 2003 and the NBLPA have actually played a role in its administration on the Points Appeals Panel.  Why the Players Association is choosing to raise the system as an issue now, almost a decade after its implementation deserves scrutiny.  The fact that they are preparing to negotiate a new Collective Bargaining Agreement with the League at the end of the current season has clearly been the trigger, but are they really expecting the NBL clubs to agree to scrap the points cap? 

Apart from being an extra safety valve to save clubs from their own darker urges to spend themselves into oblivion in pursuit of a title, the points cap plays also an important role as a way of ensuring an even spread of talent.  It has served clubs well thus far in that regard, with the race for playoff berths perennially close right through until the final weeks of the NBL season.

Would the regional teams or the clubs from smaller markets really want to remove the points cap and risk the rich getting richer to the point they simply couldn’t compete?

Of course the NBLPA says that the League has no choice but to scrap the points cap, as they maintain it is illegal. 

Prior to introducing the points cap however, Basketball Australia sought extensive legal advice on whether the system was legitimate.  That advice made it clear that, as long as the player points weren’t related either directly or indirectly to player salaries, then it would not breach the restraint of trade legislation.

Whilst you can always find a lawyer to give an opposing opinion, the fact the Players Association have never brought any sort of restraint of trade action against the NBL, nor has any player, in ten years of the system operating undermines the NBLPA’s argument. 

Ultimately, it appears that the Players Association is doing what it needs to do to present a united front and get on the front foot ahead of the looming CBA negotiations.

“Great news on NBLPA memberships, we are at over 90% of the players, highest number on record & it will be 100% at CBA time. #united” tweeted the NBLPA recently.

If that is indeed the case (and given the traditionally poor turnout from players to NBLPA meetings in the past I have my doubts) then that’s great news for the players.  They need a strong union to look out for their welfare.  All too well do I remember having to sit down with the players of the Sydney Spirit after their club went under to help sort through how we were going to get at least a portion of their money back.  These were players with wives, families and mortgages, and I don’t believe that any ever saw all of what they were legitimately owed. 

The players absolutely deserve to have their contracts honoured.  They also deserve to receive a fair share of revenue generated by their teams.  Yet NBL clubs simply are not raking in cash and the majority are accepting losses on a regular basis.  Is now therefore the time to loosen the controls on spending?

Ultimately I am not convinced that the NBLPA’s campaign is so much about abolishing the points cap as it is about negotiating an increase in the salary cap.  The position of the league and the clubs on the points system is firmly entrenched.  The salary cap however hasn’t increased for a number of years now. So a legitimate case can be made for making some sort of upwards adjustment to it to cover at least CPI increases over that time.

No matter what you believe to be the truth behind the union’s on-going campaign, the Collective Bargaining dialogue in the off-season promises to be full of more intrigue than ever before in NBL history.  Yet my sense is that this is a case of the NBLPA shooting for the stars but really aiming for the moon.