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Oct13
If Monta appeals, what’s the basis?
Interesting note from Jon Saraceno in Monday’s edition of USA Today: Jeff Fried, Monta Ellis’ agent, is talking as though he’s going to appeal the Warriors’ 30-game suspension of his client in response to Ellis’ serious ankle injury suffered while participating in an activity — driving a moped — expressly prohibited under the terms of his new six-year, $66 million contract.
“We’ve previously evaluated Monta’s options, and now that the team has taken a definitive position we will move aggressively in protecting Monta’s rights,” Fried is quoted as saying.
From this vantage point, it’s hard to see where Fried thinks he’s going to find something to dispute. Section 12 of the NBA’s Uniform Player Contract is eminently clear. I won’t reprint the whole section, but here’s the most critical sentence, in all its clause-stuffed glory (bolding adding by yours truly):
“Accordingly, the Player agrees that he will not, without the written consent of the Team, engage in any activity that a reasonable person would recognize as involving or exposing the participant to a substantial risk of bodily injury including, but not limited to: (i) sky-diving, hang gliding, snow skiing, rock or mountain climbing (as distinguished from hiking), rappelling, and bungee jumping; (ii) any fighting, boxing, or wrestling; (iii) driving or riding on a motorcycle or moped; (iv) riding in or on any motorized vehicle in any kind of race of racing contest; (v) operating an aircraft of any kind; (vi) engaging in any other activity excluded or prohibited by or under any insurance policy which the Team procures against the injury, illness or disability to or of the Player, or death of the Player, for which the Player has received written notice from the Team prior to the execution of this Contract; or (vii) participating in any game or exhibition of basketball, football, baseball, hockey, lacrosse, or other team sport or competition.”
The next sentence spells out the consequences:
“If the Player violates this Paragraph 12, he shall be subject to discipline imposed by the Team and/or the Commissioner of the NBA.”
That sure seems pretty cut-and-dried, no?
The one area where I could envision Fried making some headway is claiming that the suspension runs so long that Monta might be healthy, ready to go yet stuck on the sidelines prior to Dec. 19.
Let’s figure the best-case scenario: Ellis underwent surgery on Aug. 27. At that point, the team said he needed six weeks’ worth of immobilization (taking us to Oct. 8, which was pretty much spot on), then another six weeks of off-court rehab. Assuming that figure holds — and that he won’t require extra time to recover from the surgery he needs to eventually remove hardware from his left ankle — that takes us out to Nov. 19, four weeks before the suspension is up.
Will Ellis be ready to play in a game
back on the flooron Nov. 19? Assuredly not. But could he be set by, say, early December, yet barred from playing? That’s a possibility. And maybe Fried can use that to convince an arbitrator to knock a few games off the length of the suspension.I wouldn’t count on it, however.
– Geoff
25 Responses to “If Monta appeals, what’s the basis?”
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Warrior Matt October 13th, 2008 at 7:53 am
Geoff,
Thanks again for being right on top of things! I hope your blog is wildly successful it’s already a must check multiple times a day for me!Any way the Warriors would cut Dickau. Assuming at this point that Hendrix and Nelson won a spot. I’m worried that the Warriors keep Dickau for experience and cut loose Morrow (could he be a potential Michael Redd like shooter?) Can the Warriors stash Morrow in the D league and retain his rights for the future? Would love to see the NBA set up a “practice squad” that wouldn’t count against the cap….but probably never going to happen.
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Jonathan October 13th, 2008 at 8:10 am
Geoff,
Thanks for being on top of GS news… it’s making the last month of the off-season move a lot faster. Personally, I’m not surprised that Fried is appealing Monta’s suspension… as an agent, he has to be seen fighting for his players’ rights (even though what Monta did was indefensible). I’m sure that if he didn’t appeal, the players union probably would have (just like they did for Sprewell). But, like you mentioned above, admitting culpability (rather than arguing accountability) is key–if Sprewell can get the final 5 years and $48M of his contract reinstated after chocking his coach (and, only in the NBA is that possible), I wouldn’t be surprised to see Monta get 3-5 games taken off his suspension. But, instead of Fried and Cohan talking, can we hear Monta for once and for all?
– Jonathan
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I would tend to agree that Fried more or less has to keep up appearances by challenging this, but frankly, i’d have to wonder if he might earn more good faith with GMs around the league by playing nice and pronouncing Ellis as fully cooperative and understanding.
I have Sports Law tonight, I should ask my professor (former NFL agent) how he’d play this.
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JustPuked October 13th, 2008 at 11:38 am
…another on the spot post. Fried HAS to appeal it, that’s his job, sticking up for his client. It’s just business, as Rowell would say. I agree with your take, he may knock some games off the suspension but it theory, the Warriors brass have all the law on their side.
The big elephant in the room through all this is the huge void in splatter pattern. When do we hear from Ellis? It’s a monumental load of bad advice he’s receiving if he’s being told to stay quiet. While staying mum may help his appeal and protect some Benjamin’s, his silence is slowly alienating more and more fans.
I feel for the kid, but enough’s enough. Man up Scooter!
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Thank you Geoff for being so prompt in responding to the issues surrounding the Golden State Warriors. What is to stop the Warriors from changing the 30 game suspension to a straight $3 million fine if Monta Ellis is ready to perform at or above NBA standards prior to December 17th?
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petaluman October 13th, 2008 at 12:42 pm
The Warriors made it very clear that they had considered an indefinite suspension, which would have allowed Monta to return whenever he was cleared. They chose 30 games, arguing that this would protect against the risk that he would rush back too soon and re-injure his ankle. I’m sure this was not a capricious selection - they have access to all the medical expertise, including the operating surgeon.
Reducing the number of games by 3-4 would shave a week off his allowed recovery time. I think the Warriors have a strong argument that their time frame for his return is fair, and that there’s also a chance he won’t be game-ready by the end of the suspension, if there are any complications. They’ll argue that the only other ‘fair’ alternative would be the indefinite suspension, which they’ll only agree to if their doctors have to give him clearance. The league could also say that they will impose their own suspension, whose length would be computed to fill the gap between any shorter settlement and the original 30 games.
The only thing I could see Monta’s team arguing is that the whole idea of a suspension is unfair, and that a 3M fine would be egregious. That seems pretty weak, since we’re all in agreement that he is unlikely to be able to play in most, if not all, of those games.
The best outcome would be for Fried to next say, “I wanted to appeal, but Monta wouldn’t let me. He’s sorry about what he did, and wants to see that money go to the STHs.” Everyone would come out smelling like roses, as much as can be in this situation (except Fried, and agents are already all villains in the public eye).
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Geoff:
According to published reports, Monte was injured on a 250cc. moped. This is a curious description. While it is possible to purchase what is described as a 250cc moped, this should not be confused with motor assisted bicycles popular in Europe. The 250cc moped is a fairly high powered motor scooter that doesn’t even have peddles because it doesn’t need peddles. These things can go almost 80 miles an hour! What Monte was driving would not even qualify as a moped in California and in most states, mopeds are restricted to 50 cc and a maximum speed of 25 mph. Monte and his handlers appear to be trying to spin this. -
It makes no sense for Ellis to appeal. It’s silly if he expects not to lose money for the time he’s out injured. Especially since it’s no guarantee that he’ll ever fully recover from it.
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Geoff Lepper October 13th, 2008 at 5:50 pm
Matt: The Warriors can send Morrow to the D-League, but he would still count against their 15-man roster, so that doesn’t solve the math. Two current members of the team must be cut by the 29th.
Jonathan: You and I both would like to see and hear from Monta. Hopefully that will happen soon. From Fried’s standpoint, there’s nothing to lose from appealing. It’s not like the arbitrator can tack more games onto the penalty. I just can’t see where he has an argument. The Warriors were vindictive? It’s hard to claim that when Monta’s going to almost certainly miss all those games with an injury suffered while doing something specifically prohibited in his contract.
Jon: Let us know what your prof says. I’ll be interested to hear.
JustPuked: One aspect of the problem is that a large chunk of the front-office staff is in China on this trip, including the senior members of the PR department. I can see Fried putting Monta in touch with Janny, since he give her a quote on Saturday night, but I don’t think the team will be able to put anything together until next week at the earliest.
CL: I want to say there’s a limit to monetary fines (and that $3 million exceeds it) although I can’t find the specific language in the Collective Bargaining Agreement. I’m going to have to research that some more.
Petaluman: I don’t believe the league can suspend Monta to fill a gap in the way you describe. Article VI, Section 10 of the CBA reads as follows: “(a) The NBA and a Team shall not discipline a player for the same act or conduct.” Also, frankly, I don’t think the league wants to get involved. That just opens the door to more litigation.
Don: Bobby Rowell described it as a 250cc moped, I think to make clear that it was more powerful than many people have thought.
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Those involved with Ellis’ potential appeal process will likely encourage him to challenge the 30 game suspension because it puts money into their pocket regardless of whether or not Monta’s appeal has any merit whatsoever. For these legal parasites its a win-win proposition the moment they are able to get Monta to agree to proceed with challenging the suspension.
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Speculation:
Rowell mentioned that the team reserved the right to void the deal (or more precisely, to “re-address the situation”) at a later date.
That might be a more worthwhile ground to appeal on than the 30 day suspension.
On the other hand, if Ellis doesn’t come back at all (total career ending), then i certainly wouldn’t want the $66M on the books.
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petaluman October 13th, 2008 at 6:55 pm
Geoff,
Thanks for the clarification - I knew both parties had the right to suspend, but wasn’t aware of the relief from double jeopardy clause. Bottom line, I still think the Warriors and Monta should highlight the fact that the returned $ will go to the STHs. When he does come out and face the press, these are the people he’ll be trying to get back on his side. This is why he should not appeal. -
In class now actually, but we do go over sporting news and Ellis was the main topic. Summary:
Professor/Ex-Agent, putting himself in the shoes of Ellis’ agent, would definitely protest- BUT he
agrees the team probably did the most logical option available. Voiding was overkill, renegotiating was just too messy…but certainly doing nothing would send the wrong message.As others have mentioned, the agent has little choice but to stand up for his client. One might quibble with the actual amount, but the team was clearly (unequivically, really) within their rights to suspend Ellis.
It’s really not too big a deal, as any arbitrator would likely affirm the team’s decision.
Someone did point out that Stephen Jackson did not get 30 games for the stripclub-gun incident, but this is something so clearly prohibited in the language of the contract that there’s nothing to argue.
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Youth Movement October 13th, 2008 at 10:14 pm
A 250cc moped is more commonly called a scooter, and it is able to go on the highway. I used to have one and took it on the freeway a few times. Still, it is hardly a Harley. It’s still just a scooter, not something someone would go hotrodding on.
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Twinkie defense October 13th, 2008 at 10:35 pm
Geoff,
I tend to think Fried will appeal and Monta’s penalty will be reduced. If this seems unlikely, let’s take the alternative to it’s logical conclusion: Rowell announces the team has come up with its punishment for Monta’s admitted violation of the standard player agreement: $65 mil fine.
Would that be okay?
As we saw with Sprewell’s arbitration win vs the Warriors, the League has final say on what is fair and right, via arbitration. There is a precedent in place here - Vladimir Radmanovic’s half a million dollar fine from the Lakers for, like Monta, engaging in prohibited activity (and hurting himself). So Monta: $3 mil, Radmanovic: $500K. That seems to be clear grounds for appeal right there.
And beyond the monetary element, at 30 games, Monta’s suspension is the longest team-imposed player suspension in NBA history, and falls only behind (outside of drug-related suspension) Sprewell’s 68 games and Ron Artest’s 73 games, both of which were for violent attacks.
Carmelo got less time for throwing a punch in NY. Stephen Jackson got the same for going after fans in Detroit.
Seems to me Jeff Fried’s got a very winable case!
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Geoff Lepper October 13th, 2008 at 11:48 pm
Twinkie: I’m fairly certain no competent arbitrator would uphold a fine that takes away 98.5 percent of the money in the contract even though it’s an injury that will force him to miss something on the order of 6 percent of the games over the life of his deal.
As for Vlad, he was the eighth man on the Lakers in 2006-07 and made $5.2 million. Monta was going to be the centerpiece of this Warriors team, and is slated to make $11 million. The Lakers still won 42 games and made the playoffs without Vlad. Monta’s injury may very well be the biggest reason the Warriors fall short of a playoff spot, especially when you consider how tough the Nov/Dec schedule is.
Vlad ended up missing 25 games, during which time he earned a little less than $1.2 million — or almost $700,000 more than his fine. I think the Warriors can successfully argue that though the Lakers chose to be lenient with Vlad, that doesn’t mean they have to go the same route.
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Moreover, an arbitrator is NOT THE LEAGUE- it’s a person/group of person agreed upon through collective bargaining between the league (owners) and union (players).
Sprewell was suspended 10 games w/o pay by the Warriors and 82 games by the league. His actions reflected poorly on the NBA and negatively impacted the league as a whole.
Monta’s mistake is between the Warriors and himself.
It seems ludicrous to a layman, but violating any “morals” clause might actually be more difficult to punish than violating an explicitly prohibited nonbasketball activity.
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JustPuked October 14th, 2008 at 1:46 pm
Geoff, thanks for the response. I’m not surprised everyone’s taken the opportunity to visit China. It’s an amazing country and they’ll be pleasantly surprised how knowledgeable the NBA fans are over there…of course the most popular Warrior in China right now is…Monta Ellis. Talk about missed opportunities.
Like Twinkie postulates, I think the fine will probably be reduced just a little bit via arbitration. It would be pretty shrewd if Rowell purposely made the fine larger than it needed to be in anticipation of an arbitration hearing reducing it. That sounds like bean counter thinking to me.
250cc sounds a lot more like a dirt bike to me. It’s just coincidentally funny Youth Movement says it’s a Scooter, since that’s now Monta’s nickname on Adam’s Fastbreak Blog.
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Monta should STFU already and be happy that he still has 63mils on his pocket.
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JustPuked October 15th, 2008 at 8:08 am
Ouch Dan…
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Good scooter article. I have this bookmarked. Thanks
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Great work. I have this bookmarked. Thanks
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