Mental Health and the NBA CBA: Making Sense of the Ben Simmons Arbitration

It is established practice in the NBA for players and the player’s union (“NBPA”) to jointly bring individual grievances against NBA franchises.¹[1]National Basketball Association, 2017 Collective Bargaining Agreement, §§ 31.1-32.10 (2022). https://atlhawksfanatic.github.io/NBA-CBA/. In accordance with the League’s Collective Bargaining Agreement (“CBA”), these disputes go to league-sanctioned arbitration, where a collectively-chosen professional arbitrator oversees proceedings. This “Grievance Arbitrator” (“GA”) is granted wide jurisdiction to interpret the CBA and resolve these disputes accordingly.²[2]National Basketball Association, 2017 Collective Bargaining Agreement, §31.1 (2022). https://atlhawksfanatic.github.io/NBA-CBA/.

The GA’s procedure, decision and award process, and special rules for specific types of grievances are explicitly detailed in Section 31 of the CBA.³[3]National Basketball Association, 2017 Collective Bargaining Agreement, §§ 31.1-31.14 (2022). https://atlhawksfanatic.github.io/NBA-CBA/. Through this procedure, parties initiate claims, engage in motion practice, attend hearings, and present witness testimony, just as in standard litigation.⁴[4]Id. In proceedings concerning injury grievances, parties are encouraged to appoint “independent medical experts” to reinforce presented findings and provide thorough post hoc “second opinions.”⁵[5]National Basketball Association, 2017 Collective Bargaining Agreement, §31.8 (2022). https://atlhawksfanatic.github.io/NBA-CBA/.

In the most recent Section 31 injury arbitration, 2016 first overall draft pick Ben Simmons, along with the NBPA, brought a claim against his former team, the Philadelphia 76ers.⁶[6] Wojnarowski, Adrian, Sources: Philadelphia 76ers, Ben Simmons reach settlement on grievance over withheld pay, ESPN (Aug. 15, 2022). https://www.espn.com/nba/story/_/id/34405414/sources-philadelphia-76ers-ben-simmons-reach-settlement-grievance-withheld-pay. After being denied a trade request following the 2020-2021 playoffs, Simmons refused to play during the 2021-2022 season, citing mental health issues.⁷[7]Id. Throughout the period of his refusal, the Sixers withheld all team pay.⁸[8]Id. Simmons sought a partial recoup of this salary, an amount between $19 and $20 million dollars.⁹[9]Id.

Arbitration took place in August of 2022, after Simmons was granted his relocation wish via a trade to the Brooklyn Nets in February of 2022.¹⁰[10] Wimbish, Jasmyn, Ben Simmons, Sixers reach settlement after All-Star filed grievance to recoup part of $20 million, per report, CBS Sports (Aug. 16, 2022). https://www.cbssports.com/nba/news/ben-simmons-sixers-reach-settlement-after-all-star-filed-grievance-to-recoup-part-of-20-million-per-report/. Proceedings concluded through a mutual settlement reached during discovery, where the Sixers agreed to pay Simmons a “confidential amount.”¹¹[11]Id. While this agreement may end the matter for the parties involved, it signifies the beginning of a larger issue for the NBA. The grievance may open the door to significant CBA-based challenges concerning mental health-related player ineligibility. While there exists a thorough formulation for resolving grievances stemming from physical injury¹²[12]National Basketball Association, 2017 Collective Bargaining Agreement, Article 22 & §31.8 (2022). https://atlhawksfanatic.github.io/NBA-CBA/., the CBA fails to address other forms of player “injury.”

The Facts, Problems and Positions in the Simmons Arbitration

At the outset of the 2021-2022 offseason, Simmons cited a nerve impingement in his lower back which caused him to miss 15 games between February 2020 and April-May 2021.¹³[13]See Marcus, Brandon, Ben Simmons Has A Noted Injury History, The Cold Wire (Mar. 18, 2022). https://www.thecoldwire.com/ben-simmons-has-a-noted-injury-history/. Subject to Section 22, which explicitly outlines player health and wellness, the Sixers directed Simmons to follow-up for diagnoses and rehab through team medical counsel.¹⁴[14]See Grasso, Justin, Sixers Take Another Step Towards Repairing Relationship With Ben Simmons, Sports Illustrated (Oct. 26, 2021). https://www.si.com/nba/76ers/news/sixers-take-step-repairing-relationship-ben-simmons. However, after being cleared to practice by team staff, Simmons continued his holdout, shifting his reasoning from back to mental health issues.¹⁵[15]Shelburne, Ramona, Marks, Bobby & Wojnarowski, Adrian, Sources: Brooklyn Nets’ Ben Simmons files grievance to challenge nearly $20 million withheld by Philadelphia 76ers, ESPN (Apr. 2, 2022). https://www.espn.com/nba/story/_/id/33652726/sources-brooklyn-nets-ben-simmons-files-grievance-nearly-20-million-withheld-philadelphia-76ers. According to the Sixers, this is the point where Simmons began to violate the CBA. Simmons “refused” to return to Sixers medical counsel, which the team believed he was required to do.¹⁶[16]National Basketball Association, 2017 Collective Bargaining Agreement, §22.11 (2022). https://atlhawksfanatic.github.io/NBA-CBA/. Instead, he supplied the opinion of his own personally-retained therapist, who independently concluded that he was mentally unfit to play.¹⁷[17]See Shelburne, Ramona, Marks, Bobby & Wojnarowski, Adrian, Sources: Brooklyn Nets’ Ben Simmons files grievance to challenge nearly $20 million withheld by Philadelphia 76ers, 3 n.13 (2022).

Importantly, the CBA contains no specific rules detailing procedures for mental health recovery. Even Section 22, which encompasses all player health and wellness, fails to make mention of mental health.¹⁸[18]National Basketball Association, 2017 Collective Bargaining Agreement, Article 22 (2022). https://atlhawksfanatic.github.io/NBA-CBA/. The only league rule concerning mental health in any capacity is a formal “League Guidance” published in 2019, which merely directs all teams to retain mental health professionals and a licensed psychiatrist to be available on a voluntary basis.¹⁹[19]See Reynolds, Tim, NBA Updates Mental Health Policies Amid Ongoing Pandemic, The Associated Press (Jan. 6, 2021). https://www.nba.com/news/nba-updates-mental-health-policies-amid-ongoing-pandemic.

With this in mind, it can be inferred that Simmons and his representation disagreed with the Sixers’ interpretation of the CBA. Simmons likely argued that there should not exist a blanket read-in of mental health to the physical health provisions of the CBA.²⁰[20]National Basketball Association, 2017 Collective Bargaining Agreement, Article 22, Article 31 (2022). https://atlhawksfanatic.github.io/NBA-CBA/. For this reason, Simmons also likely argued that he was not obligated to consult team medical counsel, and is not liable for retaining and relying upon his own external professional. There are certainly valid elements to both perspectives. On one hand, the Sixers may be justified in withholding player pay when said player purposefully violates the CBA. On the other hand, however, Simmons may be justified in rejecting his team’s return-to-play expectations, especially when his actions are arguably permissible under his contract and concern the delicate issue of mental health. This dichotomy raises an immediate issue for the NBA. The settlement reached in Simmons seems to dictate that players may now sit out against the will of their team, cite mental health, obtain a private diagnosis, then attempt to bring a grievance to obtain backpay.

The Addition of Mental Health Ineligibility Provisions to the CBA

To move forward in the best interests of the sport, the NBA must close this loophole in the CBA. The League and the NBPA should negotiate to extend existing protocols for player health and wellness to cover mental health issues as well, so that disputes over return-to-play are handled through CBA-mandated procedures and not salary grievances.²¹[21]See Charania, Shams, Shams: Where NBA CBA talks stand, plus new issues on Players Association agenda, The Athletic (Sept. 19, 2022). https://theathletic.com/3607549/2022/09/19/shams-nba-cba-negotiations/. The NBA and the NBPA each hold an option to opt-out of the league’s current agreement on December 15, 2022.²²[22]Id. This opt-out would allow both sides to reach a new agreement ahead of the 2023-2024 season, rather than allowing the current CBA to run continuously until its 2024 expiration.²³[23]Id. This unique bargaining juncture provides the perfect opportunity to establish bilaterally beneficial rules on mental health.

There currently exist few other American professional sports leagues whose CBA’s contain substantial mental health provisions. The only equivalent provision is Article 39 from the NFL CBA, which generally establishes the right of players to receive confidential mental health care.²⁴[24]National Football League, 2020 Collective Bargaining Agreement, Article 39, §19 (2022). https://overthecap.com/collective-bargaining-agreement/article/39/section/19. The NBA, for the reasons displayed herein, must go further.

Much like the adoption of the flexible injury reserve in the 2005 negotiations²⁵[25]See Coon, Larry, Breaking Down Changes in new CBA, ESPN (Nov. 8, 2011). https://www.espn.com/nba/story/_/page/CBA-111128/how-new-nba-deal-compares-last-one., or the establishment of the player health benefits system in the 2016 negotiations²⁶[26]McCann, Michael, Biggest Takeaways: The NBA’s New CBA Deal, Sports Illustrated (Dec. 15, 2016). https://www.si.com/nba/2016/12/15/nba-cba-details-takeaways-adam-silver-michele-roberts., the NBA has repeatedly set the player-care standard in professional sports. The upcoming 2023 negotiations should go no differently. The final question to answer is how the League can go about this change, and what precise system should be utilized to best avoid circumstances like those in Simmons from repeating themselves.

Template for Mental Health Ineligibility Framework

The most prominent mental health designation in the world of sports is “Section S” from the Rulebook of the English Premier League (“EPL”).²⁷[27]English Premier League, Handbook, Season 2020/21, Section S (2022). https://resources.premierleague.com/premierleague/document/2020/09/11/dc7e76c1-f78d-45a2-be4a-4c6bc33368fa/2020-21-PL-Handbook-110920.pdf. Added in 2020, Section S adds mandatory positions in the “front office” of every EPL team that report directly to the FA (the EPL’s governing body) and focuses primarily on mental health matters within each club.²⁸[28]English Premier League, Handbook, Season 2020/21, Section S.1-S.11 (2022). https://resources.premierleague.com/premierleague/document/2020/09/11/dc7e76c1-f78d-45a2-be4a-4c6bc33368fa/2020-21-PL-Handbook-110920.pdf. These individuals ensure that there not only exists a level of privacy and dignity for afflicted players, but that player mental health concerns are treated with primacy, never in conflict with the financial or performance-based priorities of the team²⁹[29]English Premier League, Handbook, Season 2020/21, Section S.23 (2022). https://resources.premierleague.com/premierleague/document/2020/09/11/dc7e76c1-f78d-45a2-be4a-4c6bc33368fa/2020-21-PL-Handbook-110920.pdf..

A framework of this nature can work within the NBA landscape. A CBA-identified mental health “official” who has a hand in individual player diagnosis and decision-making outside the purview of teams can ensure that Simmons-like conflicts are decided upon considerately and efficiently.

The League should also establish unique mental health grievance rules, akin to the physical injury grievance rules from Section 31.³⁰[30]National Basketball Association, 2017 Collective Bargaining Agreement, §31.8 (2022). https://atlhawksfanatic.github.io/NBA-CBA/. This addition can be tailored specifically to disputes which bypass the potential “Section S” framework. Opposed to the settlement outcome from Simmons, these mental health injury grievance rules can create clear guidelines that determine what action is and is not proper when parties disagree on mental health diagnoses and recovery plans.

In conclusion, now is the perfect time for the NBA to set the American sports standard for what CBA mental health provisions should look like. In the wake of Simmons³¹[31]ESPN Staff, Ben Simmons says Philadelphia 76ers didn’t provide support as he dealt with mental health, ESPN (Sept. 22, 2022). https://www.espn.com/nba/story/_/id/34643029/ben-simmons-says-philadelphia-76ers-provide-support-struggled-mental-health., and in anticipation of the likely 2023 CBA negotiations, the NBA finds itself at the perfect crossroads to establish both a “Section S”-like system from the EPL, as well as a mental health injury grievance procedure, similar to the procedure already in place for physical injury. The addition of such rules can eliminate the possibility of CBA challenges, protect confidentiality and the delicate nature of player mental health, and set the tone for other American professional sports leagues as we progress into a new chapter of sports labor law³².

Written by: Skyler Jordan Sands
Skyler is a 2023 J.D. Candidate at Brooklyn Law School