NBA players, unlike baseball players, routinely sign contracts that do not mention what happens in the event of a lockout.
It's a gray area that has become an $800 million skirmish as the NBA lockout drags on.The lack of lockout language in NBA contracts - with the exception of Olden Polynice's deal with Sacramento - was one of the arguments the union made Monday at an arbitration hearing on its contention that owners must pay salaries due under guaranteed contracts during the lockout.
The first session lasted 7 1/2 hours, with commissioner David Stern the only witness. The league and union announced afterward that the hearing would take longer than the two days they originally expected. The sides planned to decide Tuesday whether to reconvene later this week or next week.
The Polynice contract could be critical because the union claims NBA owners should have protected themselves with lockout language, as baseball owners do.
The union will try to convince arbitrator John Feerick, who ruled in the Latrell Sprewell case, that the explicit lockout language in the Polynice contract - and the lack of it in every other contract - makes those deals payable.
"We've discovered that there are two specific contracts, as opposed to the other 409, that do in fact contain lockout language," union director Billy Hunter said. "Keep in mind that in each instance the commissioner and league office sanctioned these contracts."
The Polynice clause protected the Kings from losing any money they had already paid him in the event games were canceled due to a work stoppage - whether a strike or a lockout.
Shawn Kemp of Cleveland is the only other NBA player with any type of lockout language in his contract, but his clause is more complicated than Polynice's.
Agent Keith Glass, who negotiated the contract for Polynice, said the Kings insisted upon the strike-lockout language because they feared the players would strike in 1995.
"I took a gamble agreeing to the clause, but I knew the players wouldn't strike," Glass said Monday before departing for Munich, where he was available to be deposed by telephone today if needed.
"It's funny how these things work out. It looks like this gamble was worth it," Glass said.
Polynice became a free agent July 1 when the Kings opted out of the final season of the five-year, $15 million deal, so the language in question has become moot.
The league claims the Polynice language relates only to the possibility of the repayment of a $500,000 advance the player received when he signed his contract.
There is no precedent in sports law regarding liability for guaranteed contracts during a lockout. No union has ever filed such a claim - including the NBA players who were locked out in the summer of 1995.
Lawyers for the league presented case history to support their argument that the very essence of a lockout is the fact that employees don't get paid.
"There may not be a specific precedent for this," Hunter said. "But the reality is that there are other cases that we are able to cite where the courts have ruled that individualized contracts not only supersede collective bargaining agreements, but in fact that there's an obligation to pay once an agreement has expired."
Feerick's ruling is expected in early September.
If the owners lose, they would have to go to court and ask a judge for a restraining order to avoid paying about $800 million in salaries for some 220 players who have guaranteed contracts for the 1998-99 season.
"We think it's a waste of time. The only way this dispute is going to be resolved is at the bargaining table," NBA chief legal officer Jeffrey Mishkin said. "It's not going to get resolved by litigation. There's no arbitrator and no court that can make a new deal for us. We can only do that together and at the bargaining table."