Brooklyn Nets general manager Sean Marks on Tuesday announced that Kyrie Irving, who is reportedly not vaccinated against COVID-19, “will not play or practice with the team until he is eligible to be a full participant.” That means Irving won’t be able to play home or away games with the team.
Marks stressed that Irving “has made a personal choice” and the team will respect it, but added that “each member of our organization must pull in the same direction.”
Pursuant to an executive order from New York City Mayor Bill de Blasio, unvaccinated people are barred from entering the city’s sports arenas, including the Barclays Center, home of the Nets, and Madison Square Garden, where the Knicks play. The order applies to players on those teams but not visiting players.
Irving, according to ESPN, will still be paid for road games that he misses as a result of his exclusion from the team. He is eligible to play in all road games, except those at MSG.
Irving’s exclusion is akin to administrative leave, where an employer instructs an employee to stay away from work but continues to pay the employee’s wages and permits the employee to utilize healthcare and other workplace benefits. Administrative leave is typically used for employees who are accused of misconduct and the employer needs to investigate. Irving has not engaged in any misconduct but has chosen to not be vaccinated.
Irving is contractually obligated to play 41 regular season and two preseason games in the Barclays Center as well as two games at MSG. He is set to be paid about $380,000 per game—meaning he could forfeit over $16 million in wages if he misses every NYC game on account of his vaccination status.
The NBA has made clear that unvaccinated players prohibited from entering NBA arenas will be in breach of the uniform player contract (UPC) and thus ineligible for pay. The UPC requires that players report to work, a condition that Irving would be unable to meet without being vaccinated. The UPC also compels players to maintain the necessary physical condition for play, and Irving would run afoul of that obligation as well.
Other than getting vaccinated or waiting out potential changes to NYC law, Irving’s options are limited.
Irving, 29, could correctly assert that if he was still a member of the Boston Celtics or Cleveland Cavaliers, he would be eligible to play in every game. He could also criticize the necessity of the rule barring athletes from entry into arenas given that he was permitted to practice with his teammates and coaches in New York. This is because the Nets facility, the HSS Training Center, is considered a private office building and outside the scope of the mandate. If he was not a dangerous risk to other players and coaches in one building, why would he be in another?
From that lens, Irving might wish to challenge the root of his eligibility problems: the city’s vaccine mandate, which most other cities have not adopted. Irving could commence litigation against de Blasio’s order and seek a restraining order that would permit him to play. Case law, however, would not be on Irving’s side. U.S. Supreme Court precedent is clear in authorizing municipalities to adopt vaccine requirements and other public health measures.
Alternatively, if Irving wants to practice and play in road games, he and the NBPA could pursue a grievance against the Nets or seek a restraining order in court.
Irving could note that there have been part-time NBA players in the past. Back when he was recovering from knee problems in the late 2000s, Washington Wizards guard Gilbert Arenas spoke of playing mostly in home games. There are also frequent accounts of NBA players “resting” for the playoffs, as well as “load management.” Would Irving as a part-time player be substantively different? Irving could also contend that if he’s not able to play in games and practice, he would suffer irreparable harm to his profession. He would be denied opportunities to develop his skills and miss out on accumulating stats that will impact his career totals. He’d also miss games that will never be played again.
Irving might have some traction in terms of logic, but the law would be decisively stacked against him. Suing the Nets would likely lead to a swift dismissal by a judge since players, as members of a union, agree to an out-of-court grievance process. The Nets would also be in good standing. The team says it will continue to pay Irving. Also, no player has the legal right to compel a team to play him or her. To that point, some Nets players who are at the end of the bench will seldom, if ever, play. They, like Irving, will still be paid.
The NBPA, for its part, might see a stake in defending Irving as a matter of precedent. While it doesn’t appear other NBA players will miss games on account of city vaccine mandates, it’s conceivable that other cities will adopt vaccine mandates and that other unvaccinated players would be consequently affected. On the other hand, the Associated Press reported last week that about 95% of NBA players were vaccinated, thus suggesting that the league’s issue with unvaccinated players is confined.
The most likely scenario with Irving: He sits out until either he’s vaccinated or New York City lifts or amends the vaccinate mandate so that he can lawfully enter Barclays Center and MSG.
