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Breaking Down the NBPA and G League's Steps Toward Unionization

As the G League increasingly resembles a true developmental league for NBA teams, the National Basketball Players’ Association aims to persuade G League players to unionize. As first reported by ESPN’s Adrian Wojnarowski and The Athletic's Shams Charania, discussions between the NBPA and G League players began a year ago and could lead to a vote to unionize by the end of 2019.

Symbolic importance of the NBPA bringing G League players into the fold

The NBPA’s effort to unionize G League players has both figurative and practical significance.

Symbolically, the effort displays solidarity between NBA players and their G League counterparts. The NBPA is certified by the National Labor Relations Board as the exclusive union for all NBA players. It is led by executive director Michele Roberts and president Chris Paul. The willingness of the NBPA—and, by extension, NBA players—to advocate for G Leaguers is a vote of confidence in those players.

This type of willingness is also unique. Neither Major League Baseball players nor National Hockey League players enjoy such a bond with their minor league brethren (as discussed below, minor league hockey players have their own union).

To that point, the NBPA’s interest in minor league players sharply distinguishes it from the Major League Baseball Players’ Association. The MLBPA doesn’t represent minor league ballplayers and hasn’t shown much interest in doing so. While low wages paid to minor league baseball players stem from multiple factors—including MLB’s historical exemption from certain applications of federal antitrust law—those wages would likely be higher if the MLBPA negotiated on behalf of minor leaguers. They have no one at the bargaining table and are largely dependent on the largesse of the MLBPA, the MLB and the 30 MLB clubs.

That dynamic has become particularly problematic of late. MLB is negotiating with Minor League Baseball over possible contraction of minor league teams and accompanying losses of player jobs. If there was ever a time for minor league baseball players to have a union fighting for them, that time is now.

Practical importance of the NBPA bringing G League players into the fold

Some G League players are already NBPA members. NBA players on assignment to the G League are among them.

Pursuant to collectively bargained terms, NBA teams can assign NBA players with less than three years of service to their G League affiliates. Those players continue to be paid their NBA contracts while in the G League. The Boston Celtics, for example, have assigned—and recalled and then re-assigned and then recalled again—2019 first-round pick Romeo Langford to the Maine Red Claws. Langford, a wing out of Indiana, continues to be paid his $3.5 million salary during his G League stints and continues to enjoy his NBPA membership whether his home games are in Boston, Massachusetts or Portland, Maine.

The CBA for NBA players also contemplates players on “two-way” contracts. NBA teams can employ up to two eligible players on two-way contracts. An eligible player is one who has, at most, four years of NBA service. Two-way contracts allow a player to spend as many as 45 days with their NBA team and the remainder with their G League team. Depending on how many days they spend with their NBA team, two-way players can earn as much as $385,000, and no less than $77,250. The NBPA negotiates on behalf of two-way players.

Still, most of the roughly 300 players on the 28 G League teams aren’t employed by NBA teams and aren’t represented by a union. Most earn the standard G League salary of $35,000 for the five-month season. Some also gain earnings by signing 10-day contracts with NBA teams.

A salary of $35,000 is (of course) substantially lower than salaries in the NBA, where the minimum salary for the ’19-’20 season is $898,310. But remember, $35,000 is for a five-month period, meaning $7,000 a month. This rate over 12 months would be $84,000, a salary that is substantially higher than the U.S. median household income of $61,937.

G Leaguers would be unionizing at a time when the NBA has, without union bargaining demands, significantly improved G League salaries and employment benefits. This is true with respect to in-season housing, travel day per diem, continuing education opportunities, life skills development offerings and health insurance.

Plus, while MLB seeks to contract its minor league system, the NBA is expanding the G League and accompanying player jobs. Recently the G League announced it is adding a 29 franchise, the Mexico City Capitanes. The G League has become a more attractive option for talented players who could play in pro leagues located in other parts of the world.

The mechanics of a G League Players’ Association

If a majority of G League players vote to unionize, the NBPA would assist in the negotiation of workplace policies on behalf of G League players.

To be clear, the G League players’ union would be a separate bargaining entity from the NBPA. G League players would not vote on workplace policies for NBA players, just as NBA players would not vote on workplace policies for G League players.

Sports Illustrated has learned that the G League’s bargaining entity, which might be called the GLPA, would in some ways resemble the NBPA’s supportive role in the representation of WNBA players. WNBPA players are unionized through the WNBPA, which is currently negotiating a new CBA with the WNBA. The NBPA provides research and support to the WNBPA, but the WNBPA remains its own bargaining entity, with independent decision-making authority. G League players and the NBPA would probably form a similar entity.

Workplace policies negotiated by the G League players’ association would be contained in a collective bargaining agreement. CBAs are usually long and detailed documents. They are also drafted by attorneys who specialize in laws governing labor and management. In general, CBAs govern the wages, hours and other working conditions—including health care, drug testing and discipline—of employees.

The CBA for NBA players is 482 pages and contains provisions that touch on myriad topics. Those topics include: minimum and maximum salaries; rookie wage scales; name, image and likeness rights; formulas for players and the league to share revenue; deferred compensation options, loans to players; travel accommodations; locker room facilities; parking; trade logistics, drug testing; disciplinary proceedings and appeals; insurance premium reimbursements; per diem and travel expenses. And that’s just a sampling. While a CBA for G League players might not require the same degree of detail or length, it would be a document that takes considerable time to negotiate and draft.

G League players would likely incur a cost for the services of a players’ association. Unions normally impose a dues obligation. That would presumably be the case for G Leaguers, though it’s possible dues could be waived by the NBPA or paid for by NBA players.

Challenges with minor league player unionization

The unionization of G League players would not be the first in minor league sports. The Pro Hockey Players’ Association (PHPA) collectively bargains on behalf of about 1,600 players in the American Hockey League and the ECHL, the two largest minor hockey leagues in North America. The PHPA is certified by National Labor Relations Board but is not formally associated with the NHLPA or NHL players. The PHPA has negotiated a CBA for AHL players, some of whom are bonafide NHL prospects. The CBA guarantees a minimum salary of $50,000 and a daily per diem of $77.

Minor league baseball players have not unionized. This is in spite of dogged unionization attempts by minor league ballplayers to do so. When he pitched in the San Francisco Giants organization in the 2000s, Garrett Broshuis led efforts to unionize minor league ballplayers. Broshuis then retired from baseball, went to law school and is now a lead attorney in a federal lawsuit brought by a group of more than 40 former minor league players. In Senne v. Kansas City Royals, the players insist that they have been paid less than minimum wage and have been denied overtime pay.

One challenge with unionizing minor league players is that their career interests can vary and not fit well into one bargaining unit. Minor league players include young, developmental players who expect to make it to their respective big league (whether it’s the NBA, NHL or MLB). These players might assume, perhaps naively, that their time in the minors will be brief. As a result, they might regard themselves more as “prospects” than as “minor leaguers,” and thus not view unionizing as particularly important. Meanwhile, other minor league players are relatively older (late 20s/early 30s) and have spouses and children. They might be acutely concerned about their post-playing lives and thus perceive significant value in unionizing and negotiating post-career benefits.

Antitrust implications of G League players unionizing

While management in many types of industries tend to regard a workforce unionizing as worrisome, pro leagues gain legal protections when they negotiate workplace rules with unionized players.

Here’s why. When rules impacting players’ pay, wages and other working conditions are collectively bargained, those rules are immunized from scrutiny under the most relevant area of antitrust law—Section 1 of the Sherman Act.

Violations of Section 1 are costly for defendants, who if found liable must pay treble (three times) damages. When a league imposes a workplace rule relating to players’ pay, wages and other working conditions, players can challenge it as violating Section 1. To prevail, players must show that the rule harms, more than it advances, competition. In past years, pro league-imposed salary and age eligibility restrictions have run afoul of Section 1. When unilaterally imposed, those restrictions unlawfully enabled competing businesses (i.e., teams in a league) to constrain the ways in which they compete and to the financial detriment of players.

Federal labor law provides that collectively bargained rules are exempt from such scrutiny. While it’s unlikely G League players would challenge workplace rules unilaterally imposed by the G League, that possibility is removed should G League players unionize and collectively bargain rules with the G League.

It’s thus not surprising that the G League itself has welcomed the possibility of G League players unionizing. G League president Shareef Abdur-Rahim told The Athletic that right of players to unionize is a “positive thing.” The former Vancouver Grizzlies star (and thus NBPA member) added that he and other G League executives “are looking to continue to grow our league for the players to develop and accomplish their dreams.”

The NCAA should be concerned by the G League’s growth

The unionization of G League players would mark the latest development to highlight the G League’s burgeoning rivalry with men’s college basketball. G League games are, obviously, not nearly as popular as premier matchups in college hoops, particularly during March Madness. Yet the gap is slowly narrowing.

For one, the talent level in the G League continues to improve. As detailed above, the G League has raised players’ salaries and offered other employment benefits that make playing there an increasingly attractive option. Also, many NBA teams use their G League affiliate for their inexperienced, but talented, players to hone skills. NBA teams appear more willing these days to assign draft picks to the G League so they play meaningful minutes, rather riding the bench in NBA games. As a result, an assignment to the G League is less stigmatizing to the player than it would have been five or 10 years ago. With teams assigning talented players to the G League, and with two-way contracts attracting players who would otherwise earn significant salaries in Europe or Asia, the quality of G League games has advanced.

The talent level should only rise as young players take advantage of the G League’s “select contracts.” These contracts are available for elite prospects who are at least 18 years old, but who are not yet ineligible for the NBA draft, to play in the G League for $125,000. Other employment benefits include health care and training on financial literacy.

G League games are now broadcast globally through Facebook Live, NBA TV, ESPN+ ESPNU and Twitch. Broadcasting rights fees are expected to grow as are ticket sales. While G League players might not land lucrative endorsement deals, they can license their name, image and likeness for profit.

Meanwhile, the NCAA continues to struggle with adapting longstanding amateurism rules to a world of young athletes as social media influencers and celebrities. As Ross Dellenger explained on Tuesday, NCAA president Mark Emmert has communicated an uncertain message on whether college athletes will be empowered to license their identities and hire agents. G League players needn’t worry about that. They are professionals and can do what they want.

Michael McCann is SI’s Legal Analyst. He is also an attorney and Director of the Sports and Entertainment Law Institute at the University of New Hampshire Franklin Pierce School of Law.