Taking a Shot at Mediation is the Solution to NBA Player-trade Demands

Pepperdine Dispute Resolution Law Journal Pepperdine Dispute Resolution Law Journal

Volume 21 Issue 1 Article 4

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Taking a Shot at Mediation is the Solution to NBA Player-trade Taking a Shot at Mediation is the Solution to NBA Player-trade

Demands Demands

Jemuel Gascon

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Taking a Shot at Mediation is the

Solution to NBA Player-trade

Demands

By: Jemuel Gascon

I. I

NTRODUCTION

Imagine a hypothetical where it is the year 2002,

you are a child, and you are a huge Kobe Bryant fan. Kobe

plays for the Los Angeles Lakers, one of the best basketball

teams in the league.

1

Kobe is your favorite player because

he is skilled, and he has a killer mentality for winning. You

buy all his jerseys, went to all his games, and even got an

autograph and picture with him after you waited outside of

the arena for an hour. And anytime you had an opportunity,

you would pretend to be him and perform his patented move,

the fadeaway jump shot.

2

You would roll up a piece of paper

and try to shoot it into a trash can as you yell out his name,

“Kobe!”

Then you grow up, but you remain loyal to him as a

player and to the team. Then after years of loyalty and

winning championships, Kobe is up for free agency—

meaning that he could go to another team.

3

But imagine

during an interview and on his Instagram page, Kobe

promises that he is staying with the Lakers, your team, and

promises to bring more championships. Kobe then signs a

1

Kobe Bryant, Britannica.com, https://www.britannica.com/biography/Kobe-

Bryant (last visited Sept. 1, 2020).

2

NBA, Kobe’s Signature Fadeaway, YOUTUBE (Oct. 28, 2010)

https://youtu.be/lk5o2PK76hs.

3

Free Agency, SportingCharts.com,

https://www.sportingcharts.com/dictionary/nba/free-agent.aspx (last visited

Sept. 1, 2020).

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four-year deal worth $200 million dollars. After hearing this

news, you decide to buy your season tickets to the Lakers

because you grew up idolizing Kobe.

Then imagine four months into that contract, Kobe

becomes unhappy and demands a trade to another rival even

though he just signed a new contract.

4

All of those promises

Kobe made are now out the door. Eventually, the team

succumbs to Kobe’s demands and trades him to another

team. All of those jerseys and autographs you accumulated

since you were a child mean nothing to you anymore. A mix

of emotions rise through you and you feel angry and

betrayed. Even though you do not know Kobe in real life,

you still feel like you have been connected to him for years.

5

For fans too emotionally attached to favorite players, drastic

events like trades to other teams sometimes cause jersey

burning.

6

This hypothetical with Kobe Bryant did not

happen in real life, and Kobe stayed with his team and

brought more championships in 2009 and 2010.

7

But this

similar situation has occurred to other players.

8

4

See also Mike Pesca, Opinion: Now Is The Winter Of The NBA Players’

Discontent, NPR (Feb. 6, 2019, 5:oo AM),

https://www.npr.org/2019/02/06/691909965/opinion-now-is-the-winter-of-

the-nba-players-discontent. The modern NBA has players with an immense

sense of control and power over their brand and where they play. Pesca, supra.

An example of this is in 2010 when LeBron James decided that he no longer

wanted to play with his original team that drafted him and decided to make a

super team with the Miami Heat. Pesca, supra. Unlike now, in 1985 a player

would have accepted situation and not tried to move to different teams or

colluded with others with comparable talent to be on the same team. Pesca,

supra.

5

See Harry Lyles Jr., Fans burned Isaiah Thomas jerseys after he was traded.

This trend needs to stop, SBN

ATION (Aug 24, 2017, 1:03 PM),

https://www.sbnation.com/2017/8/23/16190450/burning-nba-jersey-kyrie-

irving-isaiah-thomas. When Isaiah Thomas was traded to a different team,

people started burning Thomas’ jerseys as a sign of discontent with the trade.

Lyles Jr., supra.

6

Lyles Jr., supra note 5.

7

See Kobe Bryant, supra note 1.

8

See also Pesca, supra note 4.

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A real-life scenario of this hypothetical occurred

when Anthony Davis, a basketball player for the New

Orleans Pelicans, was fined $50,000 by the National

Basketball Association (NBA) for making a public trade

demand.

9

Specifically, Anthony Davis was fined “for

violating a collectively-bargained rule prohibiting players or

their representatives from making public trade demands.”

10

The fine was administered after Rich Paul, Anthony Davis’

agent, made comments in multiple interviews that Davis

wanted to be traded out of New Orleans and would decline a

contract extension—which was estimated to be worth up to

$240 million dollars.

11

The issue here is that players are under contract

obligations for a number of years but because their current

team is not doing well in terms of competition, the players

want to go to a different team that gives them the ability to

win championships.

12

Players should have the right to do

what is best for them and their career.

13

Consequently,

9

Dave Consolazio, Was Anthony Davis Demanding a Trade Bad for the NBA’s

Future?, S

PORTSCASTING (Jul. 26, 2019), https://www.sportscasting.com/was-

anthony-davis-demanding-a-trade-bad-for-the-nbas-future/.

10

Jeff Zillgitt, Pelicans superstar Anthony Davis fined $50,000 by NBA for

trade request, USA

TODAY (Jan. 29, 2019, 8:48 PM),

https://www.usatoday.com/story/sports/nba/2019/01/29/anthony-davis-

pelicans-fined-nba-trade-request/2714996002/ (emphasis added). Nate

Robinson, a then-player for the New York Knicks, was fined $25,000 after

Aaron Goodwin, his agent, told reports and the media that he requested a trade

for Nate from the New York Knicks. Zillgitt, supra. The specific language that

Robinson was fined was “conduct detrimental to the league” and the NBA said

that players are responsible for all statements made by them or their

representatives. Zillgitt, supra. The NBA rules say that the maximum amount

a player can be fined is $50,000 for making a public trade request. Zillgitt,

supra.

11

Marc Stein, N.B.A. Fines Anthony Davis $50,000 After Agent’s Request for a

Trade, T

HE N.Y TIMES (Jan. 29, 2019),

https://www.nytimes.com/2019/01/29/sports/anthony-davis-fine-trade.html.

12

Clinton Jackson, The Fight Against NBA Trade Demands: Future Contracts

May Include Financial Penalties, T

HE SOURCE (Feb 19, 2019),

https://thesource.com/2019/02/19/nba-trade-demands-future-contracts/.

13

See Consolazio, supra note 9.

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player-trade demands put teams in tough situations in

whether to fold or refuse to give into those demands.

14

In

the end, Anthony Davis got what he wanted and was traded

to the Lakers to join forces with another superstar, LeBron

James.

15

In the long run, teams and players will work things

out no matter how dirty the negotiations may get. The real

people affected are the fans and people who invest their own

hardworking money to watch these players play a game.

Fans are people who identify themselves with a sports team

or player.

16

Being a fan of a sports team is similar to how

people identify with ethnicity, gender, or sex.

17

Fans who

identify with a certain team where its star player no longer

wants to be a part of it is like someone discriminating against

the fan for their gender or ethnicity.

18

It affects them at an

emotional level.

19

How fans feel is important because they

are the reason why the NBA or any other sports league

exists.

The NBA is a multi-billion dollar industry that is

increasing its value every year.

20

The average NBA

14

See Consolazio, supra note 9.

15

Dave McMenamin, How a busted trade request got Anthony Davis to Los

Angeles,

ABC7 SPORTS (Oct. 9, 2019), https://abc7.com/sports/how-a-busted-

trade-request-got-anthony-davis-to-los-angeles/5602331/. Anthony Davis was

traded to the Los Angeles Lakers and in exchange, the New Orleans Pelicans

received: “the No. 4 pick, Lonzo Ball, Brandon Ingram and Josh Hart, as well

as a 2021 first-rounder protected Nos. 9-30 (which becomes unprotected in

2022), first-round swap rights in 2023 and a 2024 first-round pick with the

option to defer to 2025.” McMenamin, supra.

16

Shirley Wang, Sports Complex: The Science Behind Fanatic Behavior,

A

SSOCIATION FOR PSYCHOLOGICAL SCIENCE (May 1, 2006),

https://www.psychologicalscience.org/observer/sports-complex-the-science-

behind-fanatic-behavior.

17

Wang, supra note 16.

18

Wang, supra note 16.

19

Wang, supra note 16.

20

Kurt Badenhausen, NBA Team Values 2019: Knicks On Top At $4 Billon,

F

ORBES (Feb. 6, 2019, 09:00 AM),

https://www.forbes.com/sites/kurtbadenhausen/2019/02/06/nba-team-values-

2019-knicks-on-top-at-4-billion/#1e203cb6e667.

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franchise, or team, is worth $1.9 billion dollars, and the NBA

has television deals with TNT and ESPN worth $24 billion

dollars.

21

The NBA has a lot of money invested and is a

living, breathing machine.

22

So when a star player of a

basketball team is unhappy with his situation and demands

to be traded, it causes a domino effect that starts with the

fans and ends with the NBA’s money.

23

It is understandable for a player to sign with a

different team after their contract is completed or when they

enter free agency; but to hold a team hostage by refusing to

play or displaying their unhappiness with passive aggressive

actions is a problem for the team and the fans, especially.

24

These trade demands hurt not only the teams and the fans of

these NBA franchises but also the players.

25

The Collective Bargaining Agreement (CBA)

allows a player to earn X amount of money if they stay with

their franchise.

26

The CBA is a contract between the players,

owners, and the NBA regarding rules and actions related to

21

Badenhausen, supra note 20.

22

See Badenhausen, supra note 20.

23

Calvin Fong, Are trade demands really “bad for the NBA”?, CLUTCHPOINTS

(Jul. 27, 2019) https://clutchpoints.com/are-trade-demands-really-bad-for-the-

nba/.

24

Brian Windhorst, Who wins and who loses when an NBA player demands a

trade, ESPN (Nov. 14, 2018),

https://www.espn.com/nba/story/_/id/25265468/nba-trade-demands; see

Wang, supra note 16.

25

Windhorst, supra note 24. Irving, a basketball player, was traded to the

Boston Celtics team and missed out on extra cash incentives due to the trade.

Windhorst, supra.

26

Windhorst, supra note 24. See NBAPA, https://nbpa.com/cba (last visited

Oct. 1, 2020) (“The Collective Bargaining Agreement between the NBPA and

the NBA sets out the terms and conditions of employment for all professional

basketball players playing in the National Basketball Association, as well as the

respective rights and obligations of the NBA Clubs, the NBA, and the NBPA.”).

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the NBA league.

27

The CBA is negotiated between the

Players Association and the NBA, and the current CBA

expires on June 30, 2024.

28

There are many trade-related clauses in the CBA

such as the no-trade clause, which gives a player the ability

to prevent a team from trading him to another team;

however, there is nothing in the CBA about a player wanting

to be traded to another team.

29

By demanding a trade and

being traded as a result, the player can lose millions of

guaranteed dollars for being traded to another team,

according to the CBA.

30

The current provisions in the CBA

are meant to dissuade star player movements, however they

have not proved to be enough of a deterrent.

31

For example,

Paul George and Kawhi Leonard both gave up a Designated

Player Veteran Extension (DPVE) as laid out in the CBA.

32

Meaning, both star players lost as much as $70 million

dollars of guaranteed money on the table when they forced

trades to a different team.

33

Another example is Jimmy

Butler, who walked away from $47 million dollars when he

forced the Minnesota Timberwolves to trade him to the

Philadelphia 76ers.

34

When perennial All-Star Kyrie Irving

requested a trade from the Cleveland Cavaliers to the Boston

Celtics and was asked about missing out on millions of

dollars on the DPVE, he said, “ You can’t put a price on

27

NBA-NBPA, COLLECTIVE BARGAINING AGREEMENT 1 (2017),

https://cosmic-s3.imgix.net/3c7a0a50-8e11-11e9-875d-3d44e94ae33f-2017-

NBA-NBPA-Collective-Bargaining-Agreement.pdf. See See NBAPA, supra

note 26.

28

NBA-NBPA, supra note 27, at 466.

29

NBA-NBPA, supra note 27, at 368. NYTIMES, Milwaukee Bucks Tampering

Giannis, https://www.nytimes.com/2019/09/24/sports/milwaukee-bucks-

tampering-giannis.html (last visited Oct. 1, 2020) (The closest thing to player-

trade demands is tampering, however it is very difficult to get a no-trade clause

if you are not a star player or have enough leverage.).

30

Windhorst, supra note 24.

31

Windhorst, supra note 24.

32

Windhorst, supra note 24.

33

Windhorst, supra note 24.

34

Windhorst, supra note 24.

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happiness.”

35

These numerous illustrations show that the

CBA and NBA have not solved player-trade demands.

This is where mediation is a possible solution to

player-trade demands while under contract. This topic is

important because of the money and the millions of people

involved in the sports industry. Mediation is a way of

venting one’s emotions, and having a neutral party facilitate

is the cleanest way to solve this problem.

36

Therefore, this

article proposes that the upcoming CBA in 2024 should

include an initial mediation process for voluntarily resolving

trade demands.

Part two of this article looks at the background of

player-trade demands; it looks at past demands in both the

NBA and other sports.

37

It also explores the pros and cons

about player-trade demands and how they affect the NBA.

38

Part three of this article proposes that the use of mediation

can tame trade demands’ negative side effects and explores

the proposition of including a voluntary mediation clause for

trade demands on the next CBA negotiations.

39

Part four

will raise potential objections to mediation as an avenue of

solving player-trade demands.

40

Lastly, part five concludes

that mediation is the right step towards fixing the conflict

between players and the NBA.

41

II. B

ACKGROUND

This section will discuss the background behind the

motivation of player-trade demands, player-trade demand

35

Windhorst, supra note 24.

36

JAY FOLBERG & DWIGHT GOLANN, MEDIATION: THE ROLES OF ADVOCATE

AND

NEUTRAL, 98 (3rd ed. 2016).

37

See infra notes 42–83.

38

See infra notes 84–113.

39

See infra notes 114–138.

40

See infra notes 139–147.

41

See infra pages 27–28.

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frequency and occurrences in other sports, and arguments for

and against addressing player-trade demands.

According to the CBA, a “‘Traded Player’ means a

player whose Player Contract is assigned by one Team to

another Team other than by means of the NBA waiver

procedure.”

42

A player-trade demand is when a player

demands his current team to trade him to a different team,

preferably one of his choices.

43

It becomes a “public” trade

demand when this information leaks to the media, the public

is aware of it, and the player had some control in the release

of this information.

44

There has been a sudden increase in

public trade demands since the 2017–2018 season of the

NBA.

45

Players who were discontent with their predicament

have asked to be traded in the past.

46

However, those players

usually did so in private and not in the media or public eye.

47

These public trade demands are not liked by the NBA

commissioner (also known as the chief executive of the

NBA), Adam Silver, nor the fans of that particular team.

48

Commissioner Silver said, “I don’t like trade demands and I

wish they didn’t come.”

49

Player-trade demands give

players leverage on deciding where to go and can hold a team

hostage in terms of player personnel and team direction.

50

42

NBA-NBPA, supra note 27, at 12.

43

Pesca, supra note 4.

44

Zillgitt, supra note 10.

45

Dwight Jaynes, Kyrie Irving’s demands are taking disloyalty to an obscene

new level, NBC

SPORTS (Jul. 23, 2017, 11:40 AM),

https://www.nbcsports.com/northwest/nba/kyrie-irvings-demands-are-taking-

disloyalty-obscene-new-level.

46

Jaynes, supra note 45.

47

Jaynes, supra note 45.

48

Kyle Newport, Adam Silver: No One Likes to See Players Demanding Trades

While Under Contract, B

LEACHER REPORT (Feb. 16, 2019),

https://bleacherreport.com/articles/2821153-adam-silver-no-one-likes-to-see-

players-demanding-trades-while-under-contract.

49

Newport, supra note 48. Jimmy Butler, Kawhi Leonard, Anthony Davis, and

Kyrie Irving have all requested trades within the past couple of years and all

were ultimately moved by their prior teams, feeding into Commissioner Silver’s

dissatisfaction with the notion of trade demands. Windhorst, supra note 24.

50

See Windhorst, supra note 24.

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Depending on the player’s talent and contract, some player-

trade demands hold more leverage than others.

51

Contrasting Kawhi Leonard’s and Jimmy Butler’s trade

scenarios with Kyrie Irving, Irving had less leverage because

he had two years left on his contract while Leonard and

Butler had one year left.

52

The threat or possibility of

Leonard’s and Butler’s teams getting nothing if those players

did not re-sign and left in free agency was greater than

Irving’s demand to be traded.

53

A. S

UDDEN INCREASE IN PUBLIC TRADE

DEMANDS AT THE END OF

2017 SEASON.

At the end of the 2017 season, public trade demand

by players became more frequent in terms of publicity and

media coverage.

54

These player-trade demands likely arose

from unhappiness or dissatisfaction with the direction of the

team, such as requesting a trade demand because of a lack of

with the team’s staff or medical team.

55

Kawhi Leonard

played only nine games in the 2017 season due to a

quadriceps injury.

56

Leonard’s team, the San Antonio Spurs,

disagreed on the severity of the injury and what course of

action Leonard should take in rehabilitating that injury.

57

This led to Leonard seeking his own physicians and his own

treatment plan in New York.

58

Leonard’s actions seemed to

bother the Spurs, and Leonard did not trust them anymore;

in June, Leonard notified the franchise that he would like to

be traded to a different team.

59

This type of situation and

51

Windhorst, supra note 24.

52

Windhorst, supra note 24.

53

See Windhorst, supra note 24.

54

Daniel Rapaport & Dan Gartland, The Most Famous Trade Requests in Sports

History, S

PORTS ILLUSTRATED (Sept. 25, 2018), https://www.si.com/extra-

mustard/2017/08/23/kyrie-irving-best-trade-requests-sports-history.

55

Rapaport & Gartland, supra note 54.

56

Rapaport & Gartland, supra note 54.

57

Rapaport & Gartland, supra note 54.

58

Rapaport & Gartland, supra note 54.

59

See Rapaport & Gartland, supra note 54.

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others like it will keep happening when players have years

left on their contract and they are unwilling to continue to

play for the team due to an incident or an accumulation of

events.

60

B. NBA

TRADE DEMANDS IN THE PAST.

Player-trade demands are not new in the NBA.

61

The NBA has acknowledged that this is a problem but has

not figured out a solution.

62

NBA Commissioner Silver has

said that “trade demands are disheartening” and that they

need to address the issue cautiously.

63

There is a power

struggle between the NBA, teams, and the players. In the

past, player-trade demands usually ended up working out for

all sides, but the process has sometimes been messy.

64

For

example, Chris Paul is a great illustration in which a player-

trade demand situation caused then-NBA Commissioner

David Stern to step in.

65

Chris Paul, then on the New

Orleans Hornets, told the Hornets that he was not signing a

60

Windhorst, supra note 24. Another example of a reason why players would

like to be traded to a different team is another player. Rapaport & Gartland,

supra note 54. Jimmy Butler and Karl-Anthony Towns played on the same

basketball team, but they reportedly did not get along well with each other.

Rapaport & Gartland, supra. So when the basketball team, Minnesota

Timberwolves, extended the contract for Towns, Butler requested to be traded

to a different team even though he still had one year left on his contract.

Rapaport & Gartland, supra.

61

Newport, supra note 48.

62

Newport, supra note 48.

63

Jason Owens, Adam Silver: NBA to address ‘pointless’ tampering rules,

‘disheartening’ trade demands, Y

AHOO (July 9, 2019, 9:44 PM),

https://sports.yahoo.com/adam-silver-nba-to-address-pointless-tampering-

rules-trade-demands-are-disheartening-024407748.html.

64

Rapaport & Gartland, supra note 54.

65

Rapaport & Gartland, supra note 54. Other examples included Kareem

Abdul-Jabbar where he won an NBA title with the Miluakee Bucks but then

asked to be traded to Los Angeles because he was unhappy living in Wisconsin.

Rapaport & Gartland, supra. Kareem wanted to move to LA to grow his brand

and to win more games. Rapaport & Gartland, supra. Eventually, his demand

was granted and in 1975, was traded to the Los Angeles Lakers. Rapaport &

Gartland, supra. Kareem would end up winning five more championship rings

and become NBA’s all time leading scorer while the Bucks faded into obscurity.

Rapaport & Gartland, supra.

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contract extension (Paul had one year left) and asked to be

traded.

66

There was a three-way deal in place between the

Hornets, Los Angeles Lakers, and Houston Rockets, but

former NBA Commissioner Stern stepped in and

controversially prevented the deal.

67

He did so to prevent a

competitive imbalance because the deal could have ended

with Paul and Kobe Bryant together or even Paul, Carmelo

Anthony,

68

and Amar'e Stoudemire, who could have formed

a super team.

69

Ultimately, Paul was traded out of the

Hornets to the Los Angeles Clippers.

70

However, there are also examples of teams refusing

to succumb to player-trade demands and it benefited all

parties involved.

71

Hakeem Olajuwon wanted out of the

Houston Rockets; after the Rockets refused to trade him,

they won two championships.

72

And in 2007, Kobe Bryant

made a statement on a public sports radio show saying he

wanted the Lakers organization to trade him after someone

in the organization leaked that Kobe was the reason Shaq left

Los Angeles.

73

The organization ultimately did not trade

Kobe, and they ended up winning two more NBA

championships.

74

66

Rapaport & Gartland, supra note 54.

67

Rapaport & Gartland, supra note 54.

68

See Rapaport & Gartland, supra note 54. Carmelo had multiple trade

demands in his NBA career. Rapaport & Gartland, supra. He was first drafted

and played for the Denver Nuggets and when that relationship was destroyed,

he was traded to the New York Knicks. Rapaport & Gartland, supra. But then

that situation turned sour again and he again asked to be traded to the Houston

Rockets. Rapaport & Gartland, supra.

69

Rapaport & Gartland, supra note 54.

70

Rapaport & Gartland, supra note 54.

71

Rapaport & Gartland, supra note 54.

72

Rapaport & Gartland, supra note 54.

73

Rapaport & Gartland, supra note 54.

74

Kobe Bryant, supra note 1.

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C. PUBLIC PLAYER–TRADE DEMANDS ALSO

OCCURS IN OTHER SPORTS.

Player-trade demands that occur in the public eye

do not only occur in the NBA, but also in other sports.

75

In

the National Football League (NFL), Antonio Brown of the

Pittsburgh Steelers had an incident with Ben Roethlisberger,

the quarterback of the football team, and it resulted in Brown

being benched for a pivotal game.

76

Subsequently, Brown

requested a trade through his social media account and was

traded soon after to the Oakland Raiders.

77

Brown was upset

at the team and wanted out of the organization he had lost

trust in.

78

Emotions and disagreements are usually the fire-

starter for these player-trade demands.

79

One emotional

argument between players and staff can be blown out of

75

Vincent Frank, Antonio Brown Officially Requests a Trade from the Steelers,

F

ORBES (Feb. 12, 2019),

https://www.forbes.com/sites/vincentfrank/2019/02/12/antonio-brown-

officially-requests-a-trade-from-the-steelers/#3bef8d46029d.

76

Frank, supra note 75.

77

USA TODAY, Steelers agree to trade Antonio Brown to Raiders,

https://www.usatoday.com/story/sports/nfl/2019/03/10/antonio-brown-trade-

steelers-raiders/3103058002/ (last visited Oct. 1, 2020); Frank, supra note 75.

Other NFL player demands include Eli Manning when he refused to play for

the San Diego Chargers and was later traded to the New York Giants—noting

that Manning did not play one single game for the Chargers. Rapaport &

Gartland, supra note 54. John Elway was another NFL player who was in the

same predicament as Manning but he had more leverage in his player demand

because he had “a baseball career to fall back on” if he was not traded away

from the Colts. Rapaport & Gartland, supra.

78

Jeremy Fowler, How it has gone wrong with Antonio Brown and the Steelers,

ESPN (Jan. 25, 2019), https://www.espn.com/blog/pittsburgh-

steelers/post/_/id/29995/inside-the-antonio-brown-steelers-drama-its-

probably-over. See also Rapaport & Gartland, supra note 54 (illustrating that

emotions are the driving factor for trade demands with the incident of Steve

Young and Joe Montana of the San Francisco 49ers).

79

Rapaport & Gartland, supra note 54.

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proportion and lead to a domino effect where the player is

eventually traded after he makes a public request.

80

Emotions of conflict between a team or another

player are predominately one of the reasons for the existence

of player-trade demands, but trade demands can also arise

from a player’s ego. For example, Neymar, a famous and

talented football (called soccer in the United States) player,

wanted to be on his own and prove himself on his own team

rather than being ranked as the second best player on his

current team.

81

He demanded a huge trade that landed him

on a totally different team, just because he wanted to be the

best player on a team rather be considered the second best.

82

Neymar’s situation is similar to Kyrie Irving when he

demanded a trade from the Cleveland Cavaliers because he

did not want to be second to LeBron James.

83

D. ARGUMENTS AGAINST TRADE DEMANDS.

Steve Kerr is a head coach of a basketball team and

identifies that trade demands are “bad for the league.”

84

Kerr

does not have an issue when a player is a free agent and is

allowed to switch to a different team for it is allowed by the

CBA, the contract that the NBA Players Association and

80

Morgan Campbell, Will Trade Demands Turn the NFL into the NBA?

Hopefully, T

HE STAR (Sept. 18, 2019), https://www.thestar.com/sports/sports-

prism/2019/09/18/will-trade-demands-turn-the-nfl-into-the-nba-

hopefully.html.

81

Rapaport & Gartland, supra note 54.

82

Rapaport & Gartland, supra note 54.

83

Rapaport & Gartland, supra note 54; Jaynes, supra note 45.

84

Des Bieler, Steve Kerr Criticized Anthony Davis’s Trade Demand. Kendrick

Perkins Took Issue with That, W

ASH. POST (July 24, 2019) (quoting Steve

Kerr), https://www.washingtonpost.com/sports/2019/07/25/steve-kerr-

criticized-anthony-daviss-trade-demand-kendrick-perkins-took-issue-with-

that/; see Fong, supra note 23; Consolazio, supra note 9

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NBA have agreed.

85

Kerr’s issue begins when a player is

perfectly healthy and decides that he wants to leave the

organization even though he has a couple of years left on the

contract.

86

Kerr believes that “if you sign the contract, then

you should be bound to that contract.”

87

Another argument that trade demands are bad for

the league is from the standpoint of the team. Player-trade

demands “creates a culture of self-centeredness and a

‘looking out for number one’ mentality in star players” that

has a detrimental effect on the team’s performance.

88

For

example, when there were trade rumors of Anthony Davis

demanding to be traded from the New Orleans Pelicans to a

team like the Los Angeles Lakers, it affected both the

Pelicans’ and the Lakers’ team performance on the court.

89

Instead of focusing on the game and winning it, players on

the Lakers team may have been mentally distracted from the

85

Fong, supra note 23; Consolazio, supra note 9; Bieler, supra note 84; see also

Jonathan B. Goldberg, Player Mobility in Professional Sports: From the

Reserve System to Free Agency, 15 SPORTS LAW. J. 21, 46–47, 46 nn.235–48

(2008) (citing MLB, Basic Agreement 2007-2011, art. XX) (describing the

differences in a MLB free agent, unrestricted agent, and the process a MLB

team can claim a free agent from another team).

86

Fong, supra note 23; Consolazio, supra note 9; Bieler, supra note 84.

87

Fong, supra note 23; Consolazio, supra note 9; Bieler, supra note 84. Coach

Kerr understood Kevin Durant’s decision to choose the Golden State Warriors

because he had completed his tenure with the Oklahoma City Thunder. Jaynes,

supra note 45. Durant completed the contract he signed with the Thunder, and

therefore he has every right to choose which team he desires. Jaynes, supra. It

goes the same with LeBron James when he picked Miami Heat after his contract

was completed with the Cleveland Cavaliers. Jaynes, supra. Kerr has an issue

when a player like Paul George who signed a huge deal with the Thunder for

multiple years but after one year into the contract, he demands to be traded to

the Los Angeles Clippers because another star player, Kawhi Leonard, called

him up and wanted to play with him. Fong, supra note 23.

88

Fong, supra note 23.

89

Colin Rizzo, Temptation to Tamper: The Ineffectiveness of the NBA's Anti-

Tampering Policy and Why the League May Be Forced to Take Drastic

Measures to Fix It, 26 J

EFFREY S. MOORAD SPORTS L.J. 403 (2019); see also

Windhorst, supra note 14 (illustrating how player–trade demands affect team

performance when Jimmy Butler performed a version of a holdout and skipped

practices citing issues of injury risk and therefore affecting his trade stock).

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possibility they would be traded in exchange for Anthony

Davis.

It is true that general managers of teams can trade a

player anytime, but this is done with the mentality of

improving the team rather benefiting one individual.

90

A

specific example of the “looking out for number one”

mentality is when Paul George signed a four year, $137

million deal with the Oklahoma City Thunder in the summer

of 2018.

91

Then, in the summer of 2019, after Leonard

wanted to play with him in Los Angeles, “George

immediately demanded a trade and forced his way to” the

Los Angeles Clippers.

92

The franchise and fans of

Oklahoma had every right to feel like they had been

betrayed.

93

The issue is not that players have power, but that

they have too much power in that in a split second, their

power can destroy a franchise, especially when a team

commits $137 million to a player.

94

Commissioner Silver has not solved the problem of

preventing player-trade demands, but he can prevent

tampering.

95

Tampering is a broad rule, exercised at the

discretion of the NBA Commissioner, in which a team

cannot make any comment or do anything to entice another

90

Fong, supra note 23.

91

Fong, supra note 23.

92

Fong, supra note 23.

93

Fong, supra note 23; see also Daniel C. Glazer, Can't Anybody Here Run This

Game? The Past, Present and Future of Major League Baseball, 9 S

ETON HALL

J. SPORT L. 339, 419 (1999) (pointing out that teams that lose a star player lose

their competitive advantage and teams with all the great players will affect the

competitive balance of a league).

94

Fong, supra note 23; BLEACHER REPORT, Magic Johnson Says Lakers

'Crossed a Line' in Paul George Tampering,

https://bleacherreport.com/articles/2732898-magic-johnson-says-lakers-

crossed-a-line-in-paul-george-tampering (Sept. 12, 2017).

95

Newport, supra note 48.

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contracted player to come to their respective team.

96

An

example of tampering is when the Lakers’ management at

the time Earvin “Magic” Johnson made comments in an

EPSN interview about Paul George, who was signed with a

different team at the time.

97

Magic was fined $500,000 for

those comments, but if in the end they do get that player they

so desire, it may be worth paying the penalty.

98

However,

recent trends may indicate that player tampering may be

new, but like player-trade demands, tampering can be traced

to the past.

99

Even though tampering may be difficult to monitor,

the NBA has recently announced in September 2019 that it

is considering treating player-induced trade demands as

tampering, whereas tampering normally involves penalty

fines or removal of draft picks from the team.

100

This recent

development may be a solution to the NBA’s issue of player-

trade demands, but it would likely cause resentment and

more secrecy between the players and the teams. This

situation does not foster a team atmosphere.

96

Jack Maloney, NBA commissioner Adam Silver Calls Trend of Trade

Demands 'Disheartening,' Hints at Changes to Free Agency Timeline, CBS

SPORTS (Jul. 10, 2019, 5:51 PM), https://www.cbssports.com/nba/news/nba-

commissioner-adam-silver-calls-trend-of-trade-demands-disheartening-hints-

at-changes-to-free-agency-timeline/.

97

Maloney, supra note 96; See BLEACHER REPORT, supra note 94.

98

Maloney, supra note 96.

99

Alan M. Levine, Hard Cap or Soft Cap: The Optimal Player Mobility

Restrictions for the Professional Sports Leagues, 6 F

ORDHAM INTELL. PROP.

MEDIA & ENT. L.J. 243, 284 (1995).

100

THE ATHLETIC, Tamper, Tamper: It’s time for the NBA to get rid of its

unenforceable tampering rules,

https://theathletic.com/1070552/2019/07/10/tamper-tamper-its-time-for-the-

nba-to-get-rid-of-its-unenforceable-tampering-rules/ (Jul. 10, 2019); Grey

Papke, NBA Will Treat Player-Induced Trade Demands as Tampering

Violations, MSN (Sept. 27, 2019), https://www.msn.com/en-us/sports/nba/nba-

will-treat-player-induced-trade-demands-as-tampering-violations/ar-

AAHX7ZA.

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E. ARGUMENTS FOR THE ACCEPTANCE OF

PUBLIC TRADE DEMANDS.

On the other side of the coin, advocates for trade

demands argue that players should have the power to decide

where they play and how they live their lives.

101

It is known

that the NBA is a player’s league meaning individual players

get more attention than their own team, compared to any

other sport.

102

As a result, players demanding trades to get

out of their contracts is simply a manifestation of the players’

growing power.

103

An example of the power struggle

between owners and players is when Blake Griffin’s loyalty

ended up back-firing on him.

104

Griffin promised that he

would re-sign with the Los Angeles Clippers, and he did, but

he was soon after traded to the Detroit Pistons without

notification. Griffin may have felt slighted because of

this.

105

Loyalty can only go so far.

Others who are indifferent or favor player-trade

demands would argue that teams will do anything to save

money or win a championship by dealing away star players

who have showed loyalty to the team.

106

DeMar DeRozan

was a casualty in a team wanting to win at any cost.

107

In

2016, DeRozan signed a $139 million contract for five years

with the Toronto Raptors.

108

Then, when Kawhi Leonard

demanded to be traded from the San Antonio Spurs after his

101

Fong, supra note 23.

102

Fong, supra note 23. NBA players are more popular and recognized than

other sports because it is likely due to the number of players on a team and how

intimate a fan can get with a player. There are only 15 players on a team, and

they do not wear helmets that cover their faces. They are more likely to get

recognized than someone who is the offensive lineman of the San Francisco

49ers.

103

Fong, supra note 23.

104

Fong, supra note 23.

105

Fong, supra note 23.

106

Levine, supra note 99, at 302.

107

Consolazio, supra note 9.

108

Consolazio, supra note 9.

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situation with the team’s medical staff, the Raptors jumped

on that opportunity and traded DeRozan to the Spurs for

Leonard.

109

In an interview, DeRozan showed his

frustrations about the trade: “I definitely was extremely hurt.

I’d be lying if I told you I wasn’t. I always made it clear that

Toronto was where I wanted to retire.”

110

The relationship

between DeRozan and the Raptors has been damaged.

Player trades may have become more personal rather than a

business deal.

F. T

HERE IS A LACK OF SOLUTION FOR PLAYER-

T

RADE DEMANDS.

As alluded to earlier, there is still no solution to

player-trade demands.

111

There is nothing in the CBA that

deals with a situation where an NBA player requests to be

traded to a different team.

112

It continues to be an issue

because of its unforeseen side effects.

113

Seeing as though

there are no current solutions to player-trade demands, the

NBA and its players should consider using mediation as a

tool to resolve situations where a player wants to be traded.

III. P

ROPOSED SOLUTIONS

To counter the undesirable effects of NBA players’

public trade demands, this section proposes that the

upcoming CBA should include a mediation provision that

allows for voluntary mediation between the player and the

teams when a player wishes to be traded to another team.

109

NYTIMES, Kwahi Leonard Traded to the Raports for DeMar DeRozan,

https://www.nytimes.com/2018/07/18/sports/kawhi-leonard-demar-

derozan.html (Jul. 18, 2018).

110

Consolazio, supra note 9.

111

Maloney, supra note 96. Commissioner Adam Silver has acknowledged that

a lack of solution to trade demands is disheartening and also acknowledges the

effort of the league to address this situation. Newport, supra note 48.

112

NBA-NBPA, supra note 27.

113

Maloney, supra note 96.

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A. MEDIATE WHEN A PLAYER WANTS TO BE

TRADED.

When a star player, or any player in fact, feels that

he wants to leave his current team and be traded to a different

team, it is important to provide him an avenue or mechanism

of exploring that option. That way, this avenue or

mechanism can help solve some or all of the issues that come

with a player demanding a public trade while he is still under

contract. The best mechanism or procedure would be to

have a mediation clause in the CBA to allow players to

mediate a desire to be traded to a different team while under

contract with the current team. Mediation is the best

mechanism to achieve this. Mediation may allow players to

voice their desire to leave the team more candidly and freely

versus direct negotiation between the managers of the team

and the player’s agent.

“Mediation is a process of assisted negotiation in

which a neutral person helps people to reach agreement.”

114

Mediation is different from the normal negotiation that

occurs in the NBA because it involves an “impartial third

party.”

115

Discussions about trade demands occur all the

time, but when the parties meet, there are may be ulterior

motives. Having a third party who is impartial may allow

the parties to see the goal clearly and work together to

achieve a common goal of solving the conflict. Mediation

also gives the agent, lawyers, or general managers a large

amount of freedom to shape the process and help balance the

power between the parties.

116

Caucuses are private meetings in which the parties

talk to the mediator individually in private and voice their

concerns.

117

Each player has a different motivating factor

114

FOLBERG & GOLANN, supra note 26, at 73.

115

FOLBERG & GOLANN, supra note 26, at 73.

116

FOLBERG & GOLANN, supra note 26, at 74.

117

FOLBERG & GOLANN, supra note 26, at 75.

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for why they want to leave a team via a trade.

118

Using

caucuses may have a positive effect on player-trade

demands.

Emotions run high and one misspoken word can

affect the way the parties come to an agreement. This is

likely the reason why information about players wanting to

be traded gets leaked into the media. The mediator can shape

the NBA players’ dialogue and reason in productive ways,

and vice versa, the general manager of the NBA team.

119

If

the goal of the NBA player is to end the relationship with the

team, mediation can still allow that to occur by ending it on

the best possible terms, leaving the team better off than

ending up with nothing but a former disgruntled

employee.

120

Mediation will work to solve the negative

effects of public player-trade demands because “it provides

a safe forum for airing grievances and venting emotion.”

121

For example, the Kawhi Leonard trade situation

between the San Antonio Spurs and the Toronto Raptors was

birthed from Kawhi’s distrust of the medical staff of the

Spurs.

122

This disagreement snowballed into Kawhi

demanding a trade, which got leaked to the public.

123

The

information of Kawhi wanting to be traded shook the entire

NBA.

124

If there was a mechanism in the CBA that allowed

mediation before making such demand, then the Spurs could

have assessed their options and presented them to Kawhi.

The mediator would hear both sides and propose solutions

118

See also Frank, supra note 75. Football player Antonio Brown was upset for

being disciplined by being benched during a pivotal game. Frank, supra note

70.

119

FOLBERG & GOLANN, supra note 26, at 75.

120

FOLBERG & GOLANN, supra note 26, at 93.

121

FOLBERG & GOLANN, supra note 26, at 98 (citing Daniel Bowling & David

Hoffman, Bringing Peace into the Room: The Personal Qualities of the

Mediator and Their Impact on the Mediation, 16 NEGOT. J. 5 (2000)).

122

Rapaport & Gartland, supra note 54.

123

Rapaport & Gartland, supra note 54.

124

Rapaport & Gartland, supra note 54.

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that could have satisfied both parties. The Spurs could have

had their assets ready and made deals with teams that did not

compromise Kawhi’s stock value.

Fans are highly emotional in terms of their sports

teams.

125

If fans perceive that the player made an effort to

work with the team when there is a likelihood of trade, it may

lessen the volatile response by the team’s fan base.

Mediation gives that perception because there is a

preconceived notion that mediation is consensual and

voluntary.

126

Two parties in conflict go to a neutral third

party to help solve their dispute.

127

This course of action

shows good faith.

The purpose of mediation is to give the team a

chance to keep the player, for the player to be heard about

his grievances, or to give the team leverage to trade the

player to a preferred situation if both parties cannot coexist.

B. W

RITE MEDIATION INTO THE CBA

CONTRACT.

Once it is agreed that mediation can be a solution to

player-trade demands, the next step is to write it into the

CBA. The current CBA does not have a provision

addressing trade demands or mediation as a possible

solution.

128

The CBA does have a provision for arbitration

when grievances like penalties and fines for breaking an

NBA rule occur, such as throwing a punch at another

player.

129

If arbitration is already included in the CBA, then

integrating mediation as a requirement before demanding a

trade would not be difficult for the NBA.

On June 30, 2024, the current CBA expires and will

be renegotiated between the owners and basketball

125

Wang, supra note 16.

126

See FOLBERG & GOLANN, supra note 26, at 73.

127

FOLBERG & GOLANN, supra note 26, at 73.

128

NBA-NBPA, supra note 27, at 392.

129

NBA-NBPA, supra note 27, at 392, 404.

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players.

130

This a perfect opportunity to talk about

implementing mediation as a requirement for player-trade

requests before using other methods such as making a public

demand. If the NBA commissioner and players’ union

cannot wait until the expiration of the current CBA deal, then

there should be a special meeting to vote this provision in.

131

The Major League Baseball Players Association got

into a similar conflict with the baseball teams and owners in

1976 when there was a lockout due to players refusing the

restriction of player-trades between teams.

132

There, the

parties remained in a stalemate until four months later when

the owners granted the players the right to demand a trade

after five years and other perks.

133

This is an example of

how discussion among the owners and players regarding

trade demands can end in an agreement. Of course, that is

not the current situation, but the example illustrates that trade

demands can be incorporated into the agreement between the

players’ union and the sports league they are under.

Another reason for incorporating a mediation

requirement when an NBA player wants to be traded while

under contract is that there is a similar provision in the CBA.

The CBA has a no-trade clause and a limited-trade clause.

134

As said earlier, a no-trade clause allows a player to refuse a

team’s decision to trade said player to a different team.

135

130

Clinton Jackson, The Fight Against NBA Trade Demands: Future Contracts

May Include Financial Penalties, T

HE SOURCE (Feb 19, 2019),

https://thesource.com/2019/02/19/nba-trade-demands-future-contracts/.

131

See also Goldberg, supra note 85, at 46 nn.235–48. (citing MLB, Basic

Agreement 2007-2011, art. XX) (illustrating why player mobility is important

in giving players more power and participation in where they can play).

132

Genevieve F.E. Birren, A Brief History of Sports Labor Stoppages: The

Issues, the Labor Stoppages and Their Effectiveness (or Lack Thereof), 10

DEPAUL J. SPORTS L. & CONTEMP. PROBS. 1, 5 (2014).

133

Birren, supra note 132, at 5.

134

Daniel M. Faber, The Evolution of Techniques for Negotiation of Sports

Employment Contracts in the Era of the Agent, 10 U

NIV. MIA. ENT. & SPORTS

L. R

EV. 165, 183 (1993).

135

Faber, supra note 134, at 183.

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A limited-trade clause, on the other hand, gives the

player the ability to submit a list of NBA teams that the

player is willing to be traded to.

136

These are difficult

provisions to obtain and usually involve the player giving up

something in return for one of these clauses.

137

Since these

types of provisions are already in the CBA, adding mediation

regarding trade demands will not be difficult. Better yet is

submitting a list of possible NBA teams that will likely

receive a trading player positively in a mediation setting

rather than a straight negotiation setting where bargaining

power is unequal.

Further, confidentiality is one of the benefits of

mediation.

138

To prevent information of a possible trade, the

mediation requirement should also be confidential, and if

anyone notifies the media or public of the initiation of the

mediation, then fines should be imposed. Speculation is a

dangerous road, and if the CBA has a mediation before

trading demand clause, then any player who has a mediation

with his respective basketball team can be under scrutiny for

trying to leave his team. The proper way to incorporate

mediation is to say that a basketball player needs to mediate

any issues he has with his current contracted team, including

but not limited to a desire to be traded, issues with

teammates, or wanting certain meals. That way, by having

a vague and ambiguous reason for when a basketball player

goes into mediation, people will not know if it is regarding a

trade or what he wants to eat after a game.

136

Faber, supra note 134, at 183.

137

Faber, supra note 134, at 183.

138

Kimberly Taylor, Mediation: Confidentiality and Enforceability of the

Process, JAMSADR (APRIL 6, 2015),

https://www.jamsadr.com/blog/2015/mediation-confidentiality-and-

enforceability. !

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IV. DISCUSSION OF POTENTIAL OBJECTIONS.

The next section deals with potential objections to

mediation as a solution to player-trade demands.

A. O

PPONENTS MAY ARGUE THAT EVERYTHING

WILL

WORK ITSELF OUT.

Opponents against the implementation of mediation

process as a requirement regarding player-trade demands

will likely argue that it is not necessary because things have

a way of working themselves out.

139

The idea is that player-

trade demands create drama and buzz for the sports league—

something that people can talk about.

140

It also does not

change the end result in that the player will likely be traded,

which is ultimately why the player demanded a trade in the

first place.

141

No one wants an unhappy employee to remain

at the jobsite out of which he tried and failed to transfer.

The issue with this argument is that it focuses on the

result of the conflict, rather than the process and

consequential side effects. Opponents against mediation

should look at the side effects of a star player’s demanding

to be traded to a different team. It is there where the true

conflict lies. Proponents are correct in that the NBA player

who demanded the trade in the first place will get what he

wants, but the baggage that comes with the decision has real

consequences. Teammates, managers, fans, and endorsers

will have a different perspective on how they see or feel

about that certain player.

142

139

Consolazio, supra note 9 (calling the increase in public player-trade demand

unlikely to become an epidemic).

140

Consolazio, supra note 9; see also Bieler, supra note 79 (illustrating the

drama and attention that comes with demanding a trade).

141

Consolazio, supra note 9.

142

Consolazio, supra note 9.

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B. OPPONENTS MAY ARGUE THAT MEDIATION

WILL NOT

WORK BECAUSE THE CURRENT

TAMPERING RULES ARE NOT WORKING IN

PREVENTING PLAYER MOVEMENT.

Individuals who are against mediation as an avenue

for solving player-trade demands may argue that it would be

ineffective, just like the anti-tampering rules. For that same

reason, mediation is a solution because it is a stronger

deterrent than tampering rules. Tampering usually precedes

a public player-trade demand.

143

However, NBA

Commissioner Adam Silver even admits that tampering

regulations are not working and are “disheartening” to

him.

144

Furthermore, requiring mediation as a prerequisite

before taking any other course of action may result in

lawsuits under the Sherman Act. The Sherman Act is an

antitrust law that prohibits the restraint of trade, meaning that

there cannot be a rule that limits the ability of the league to

regulate teams from trading players and discussing

contracts.

145

However, the NBA tampering policy has been

ruled as an exception to this Act and similar antitrust laws.

146

The Supreme Court reasoned that anti-tampering regulations

that prevent other teams from discussing contracts with other

teams’ players equate to conspiracy and have a “pernicious”

effect on the competition and lack any redeeming value.

147

Therefore, if this mediation provision is incorporated, then

opponents may analogize it to the anti-tampering regulations

that have been approved as an exception to the Act.

143

Owens, supra note 63.

144

Owens, supra note 63.

145

Levine, supra note 99, at 254 n.65.

146

Rizzo, supra note 89, at 414.

147

Goldberg, supra note 85, at 28 (citing MLB, Basic Agreement 2007-2011,

art. XX).

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No matter what argument opponents may bring,

mediation is better than sitting idle and hoping things will

work themselves out.

V. C

ONCLUSION

Money, players, and fan investment are the essential

parts of any sports league. If players are unsatisfied, it will

have a domino effect and cause fan dissatisfaction and result

in conflict and drama. Mediation solves this situation

quickly and beneficially for both sides. Only through

mediation and a neutral third party can a player-trade

demand be solved without being messy. Ultimately, the

player and the team each want to be heard. Most

importantly, the mediator will control the emotions of the

room and level the playing field.

The next time a caliber player like Kobe Bryant or

Kawhi Leonard demands to be traded, the fan, the team, and

the media can look positively towards a grown man’s

decision to leave a situation that is not beneficial to anyone.

There will be no ill will or resentment because the player

made an effort to work out an agreement with the team

regarding his decision to move on. Mediation is worth a shot

for NBA players and NBA teams, even if the ball does not

go in the hoop.

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