In October, I wrote about Ben Simmons’ decision to holdout from the 76ers. The NBA season was underway, and Simmons wasn’t suiting up for Philadelphia. Since then we’ve had media leaks, cryptic tweets, passive aggressive press conferences, and much more NBA influenced drama. After not playing a single game for the 76ers this season, in February Simmons was shipped out of Philadelphia to Brooklyn officially signaling the end of this tumultuous relationship. Ben Simmons and the 76ers are no longer together – but they’re still fighting like they are.
Simmons joined the Brooklyn Nets where he has still yet to play in a game this season. He’s currently rehabbing a back injury with hopes to join the Nets sometime during the playoffs. But in addition to working on his back, Simmons is still entrenched in a financial feud with his former employer.
Until the trade to Brooklyn, even though you couldn’t tell by simply watching 76ers games, according to his contract Simmons was still a member of Philadelphia. Despite being worth millions of dollars, an NBA contract works like any other employment contract where consideration is provided by both sides. Under these circumstances, Simmons plays basketball for the 76ers and in return gets paid $33 million a year. The contract broke down when Simmons refused to play citing mental health reasons. The 76ers countered by withholding paychecks which they felt was in their right because Simmons was in breach of contract for “failing to render services” under Article VI Section I of the NBA’s Collective Bargaining Agreement (CBA).
To further complicate matters, Simmons was issued a $16 million advance on his 2021/2022 salary last August before the situation between the two sides became radioactive. So during this season, the 76ers actually claimed that Simmons owed them money to recoup the advance. They withheld $360,000 game checks for every game that Simmons missed as a member of the 76ers this season to make them whole.
Fast forward to present day, now this divorce involves a third party. When Simmons was traded to the Nets, as part of the deal it was agreed upon that the Nets wouldn’t pay Simmons either. Instead, the Nets would wire the 76ers paychecks that were meant for Simmons to recoup the aforementioned losses. Simmons no longer plays for Philadelphia, but his former employer is still receiving his paychecks they feel they are owed due to breach of contract. Only in the NBA.
Simmons wasn’t going to go down quietly. He filed a grievance against the 76ers under Article XXXI of the CBA to acquire $20 million in salary from his former team. According to the CBA, the grievance now moves to the arbitration process where both sides will make their case.[1]
Before even getting to the substance of the grievance, the first point the 76ers legal team will likely jump on involves timing. Article XXXI Section 2(c) of the CBA lays out procedure requirements for a grievance to be filed:
The 76ers have been withholding payment from Simmons all season. Also, it’s been more than 30 days since Simmons’ new employer, the Nets, began sending the 76ers their former player’s checks. The 76ers have a good case Simmons didn’t file a timely grievance under the CBA.
Simmons will likely respond that the “occurrence for which the grievance is based” remains ongoing. Simmons will make the case that he should be granted 30 days from when his last paycheck enters the 76ers pockets instead of his. Therefore, hie grievance was filed well within the procedure requirements under the CBA.
Shifting to the substance, the Simmons vs. 76ers battle will be precedent-setting for an NBA player’s ability to holdout and demand trades when their situation grows unfavorable. In the recent decade, it’s become a common trend for NBA players to exert power over their teams to demand trades and pick their next destination. Usually, after a minor recoil, the team complies to their superstar’s demands and trades them. Finally, a team has fought back in the form of withholding salary.
This situation also gets more complicated because at the heart of Simmons’ case is his mental health. Simmons has claimed that the reason he avoided joining the 76ers this season was because he was battling mental health issues that began when the 76ers lost in the playoffs the year before. The 76ers now find themselves in the difficult spot of arguing against a player’s legitimate right to seek mental health treatment. As mental health awareness has become more significant, the 76ers will have to tread lightly.
Exhibit A of what the 76ers can point to is the shift in how Simmons has acted since joining the Nets. Although Simmons hasn’t played yet for Brooklyn, he’s cited back problems, not mental health, as the reason he remains sidelined. However, he’s joined his teammates on the bench, something he didn’t do in Philadelphia this season.
Simmons will likely claim that the way he was treated in Philadelphia was the main source of his mental anguish. Once that burden was lifted and he joined a new team, he became ready mentally to join his new teammates and work towards getting back on the court. The NBA arbitration process isn’t usually in the business of evaluating the validity of mental distress claims, so it’s unpredictable where all of this ends up.
Make no mistake, the NBA is a player’s league. NBA commissioner Adam Silver rarely tries to ruffle feathers amongst the league’s elite talent. Simmons’ hope is that this trend continues. But the other 29 teams are monitoring this situation very closely. Ownership and team front offices have felt that the power balance has shifted too far in favor of the players. Their hope is that the Simmons situation will determine that no longer should a player be able to hold out of his contract, refuse to play, demand a trade, and still get paid.
The divorce between the 76ers and Ben Simmons is official, the papers are signed, and they’ve begun seeing other people. But the fallout from this breakup will lay the foundation of player-team relationships in the NBA moving forward.
Matt Netti is a 2021 graduate from Northeastern University School of Law. He currently works as an attorney fellow at the Office of the General Counsel for Northeastern University. You can follow him on twitter and Instagram @MattNettiMN and find him on Linkedin at https://www.linkedin.com/in/matthew-netti-ba5787a3/. You can find all his work at www.mattnetti.com
[1] Bobby Marks, Sources: Brooklyn Nets' Ben Simmons files grievance to challenge nearly $20 million withheld by Philadelphia 76ers, ESPN (last visited Apr. 7, 2022) https://www.espn.com/nba/story/_/id/33652726/sources-brooklyn-nets-ben-simmons-files-grievance-nearly-20-million-withheld-philadelphia-76ers.
