NYC Vax Law Hamstrings Irving, Nets in NBA Title Push

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  • Brooklyn Nets
    Brooklyn Nets
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  • Kyrie Irving
    Kyrie Irving
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An intriguing idea was floated this week by New York Daily News writer Stefan Bondy: By paying relatively modest fines to New York City, the Brooklyn Nets could play Kyrie Irving in home games. The move would remedy a competitive disadvantage the Nets face in losing their star point guard for about half their games. It would also encounter legal and league barriers.

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Per an executive order issued by then-New York City Mayor Bill de Blasio last year, people who are unvaccinated for COVID-19 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 the Nets and Knicks, but not on other NBA teams. It also doesn’t cover the HSS Training Center, the Nets training facility in Brooklyn. HSS is considered a private office building and outside the order’s scope.

Irving, who is unvaccinated, is therefore ineligible to play in the Nets’ 19 remaining home regular season games and two road games at MSG. The Nets (26-15, third place in the Eastern Conference) are headed for the playoffs. Unless Irving gets vaccinated or the order is revoked, the former Celtics and Cavaliers star will miss some playoff games, too.

Irving’s permissions to play at the Nets’ NYC-based practice facility and in road games other than at MSG, and the fact that unvaccinated players from visiting teams can play at Barclays Center and MSG, have raised questions about the order’s underlying logic. Still, the order hasn’t been successfully challenged in court. Meanwhile, Mayor Eric Adams, sworn into office on Jan. 1, hasn’t revoked or revised it.

From a sports perspective, the order arguably undermines fair play for the Nets and Knicks. It deprives them of players who lawfully choose to not be vaccinated while allowing unvaccinated players on other teams to play. For the Nets this presents a conundrum. While controversial at times, the 29-year-old Irving is a seven-time All-Star and an NBA champion on a team with a realistic chance to win an NBA title this season. Losing Irving for home games puts them at a competitive disadvantage, especially in a playoff series. While it’s true that Irving could resolve the matter by getting vaccinated, he’s not obligated to do so: The NBA and NBPA have not negotiated a vaccine requirement.

Bondy notes that the penalty scheme for violating the order seems trivial in the context of an NBA team. He writes that the initial fine is $1,000, which rises to $2,000 for a second offense and $5,000 for each additional offense. Either Irving, who has earned more than $150 million in his career, or Nets owner Joe Tsai, whose team is worth $3.61 billion, would have no difficulty paying $100K and change in fines. It would be akin to a rounding error.

The language of the order, however, suggests that the penalty scheme could be enhanced and altered.

First, the potential fine is “not less than” $1,000 for a first offense, $2,000 for a second offense and $5,000 for a third and subsequent offense—meaning those dollar figures are floors, not ceilings.

Second, and more important, the order and accompanying documents indicate that other penalties may be possible. The order refers to the potential penalty of forfeiture and clarifies that the order can be enforced pursuant to provisions from the NYC Health Code and NYC Charter. Those provisions mention that “any violation of the health code shall be treated and punished as a misdemeanor.” They also indicate a refusal to comply, in certain situations, can become “triable by a judge of the New York city criminal court.” Meanwhile, a Q/A released by the city states that “repeated violations may result in . . . other enforcement action.”

None of this means that Irving or a Nets official would be arrested if he suited up for home games. However, it suggests that the government might not sit by idly should Irving and the Nets engage in blatant, high-profile defiance—particularly since most New Yorkers lack the financial wherewithal to easily pay thousands of dollars in fines.

Beyond the city’s authorities, the NBA would have grounds to sideline a Play Kyrie plot.

The NBA has determined that unvaccinated players barred from entering facilities are in breach of the uniform player contract (UPC). The UPC requires, among other things, that players be able to (lawfully) report to work. An unlawful entry into a facility would still constitute a breach. As ESPN’s Adrian Wojnarowski noted, the NBA obligates teams to follow applicable laws, including in regard to municipal executive orders and health ordinances.

Commissioner Adam Silver also has substantial legal authority to prevent conduct by teams and players he deems disruptive.

Article 24 of the league constitution explains the commissioner has discretion to issue penalties and take other actions “in the best interests of the Association.” As the person who oversees a franchise-based league where every franchise should (in theory) have an equal opportunity to succeed or fail, Silver might be concerned by the competitive disadvantage individual franchises face on account of state or municipal laws. But it seems unlikely Silver would find it in the league’s best interests for a player and team to evade restrictions that others, including Nets fans, follow. Plus, under Articles 35 and 35A, Silver can issue indefinite suspensions of players, owners and other team officials for non-compliance with laws or other detrimental conduct

In short, don’t expect to see Irving playing home games.

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