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NBA CBA Article 11 Section 3: What is withholding services?

With the most recent James Harden isn’t happy with his situation and is forcing his way out, Philly Edition, about to get into full swing as the NBA season approaches. There has been a lot of discussion about an obscure NBA Collective Bargaining Agreement article that may prevent him from throwing too much of a spanner in the works for Philly this season.

NBA CBA Article 11 Section 3: What is withholding services? The NBA’s Collective Bargaining Agreement (CBA) lays out the terms of contracts between NBA players and the NBA itself. This covers a situation where a player may choose to withhold their services from the NBA team. This only applies to players in the final season of their current NBA contract and states that if they withhold their playing services for more than 30 days then the final year of their contract will not trigger. They will remain under contract until such a time as the franchise holding their contract agrees to release them.

This largely unused part of the CBA could be about to come under huge scrutiny. Former MVP James Harden has had a very public falling out with 76ers GM Daryl Morey. Harden has been pushing for a trade away from Philadelphia all summer, since opting into the final year of his contract. However, Morey has refused to be pushed on a low value trade for his reigning MVP Joel Embiid’s running buddy. Knowing it is title run or bust for the 76ers this year. As we pass media day and approach training camp and preseason games. The clock is about to start ticking on James Harden to show up and keep showing up. They say it’s always sunny in Philadelphia, but for the 76ers the black clouds are looming.

What does the CBA say about withholding services?

Article 11 section 3 of the NBA’s Collective Bargaining Agreement (CBA) states the following in relation to a player withholding services from the franchise they are contracted to.

11.3 Withholding Services.

A player who withholds playing services called for by a Player Contract for more than thirty (30) days after the start of the last Season covered by his Player Contract shall be deemed not to have “complet[ed] his Player Contract by rendering the playing services called for thereunder.” Accordingly, such a player shall not be a Veteran Free Agent and shall not be entitled to negotiate or sign a Player Contract with any other professional basketball team unless and until the Team for which the player last played expressly agrees otherwise.

If we go through and unpack the legal language term by term we can understand exactly what it’s saying.

● Playing Services
○ This means on court action, potentially including training activities, but would definitely mean pre-season matches.
● 30 Days
○ Importantly this doesn’t say consecutive days. So we can assume all days missed without permission will accumulate, shrinking Hardens window.
● After the start of the last season covered by his player contract
○ The final season of that player’s contract, including all “options”.
● Deemed to not have completed his playing contract
○ The final year of the contract will not be seen as completed
● Not be a veteran free agent
○ The player will not enter unrestricted free agency
● Not entitled to negotiate or sign a player contract with any other professional basketball team
○ This will prevent the player signing not just with another NBA team, but also moving abroad.
● Until the team for which the player last played expressly agrees otherwise
○ The franchise holding the contract can choose to allow the player to be released from it.

One of the most important things we have noticed here is there doesn’t seem to be a time limit on the rule. It doesn’t state that if the player misses 30 days, but then returns to action, the contract will be seen as complete. That would in theory still need the franchise’s permission to release him. It also doesn’t state that if the player returns and plays the following season, then they are automatically released. The player would need to ensure that was a written part of any agreement before they returned to play, having triggered the Withholding Services Clause.

Is there precedent of the NBA’s Withholding Services Clause to be used?

Despite its existence in something like its current form in the last few CBA’s the clause has never been activated. Its mere existence may have influenced some decisions or been used as leverage by franchises in closed door meetings, but it has never been activated. As such, how it would play out is still a bit murky.

The clause was in no danger of being triggered even as Ben Simmons sat out for the 76ers 2 seasons ago. Simmons had 4 years left on his contract and so the clause did not apply to him. Ultimately that dispute was resolved when Morey traded Simmons to the Nets for none other than James Harden. Who was pushing his way out of Brooklyn, having only arrived at Brooklyn after pushing his way out of Houston.

The idea of the clause only applying to players in the final year of their contract was probably decided upon because that was when players had the most leverage. It would have been foreseeable that a player could choose to sit out just one season or even just the end of one season if they had grown disenchanted with their franchise. However, with the modern player empowerment era in full swing, it wouldn’t be a surprise if the language was updated for the next CBA to cover all seasons of a contract.

What is the Timeline for James Harden triggering the Withholding Services Clause?

James Harden has already missed media day. At a base level the 30 days could allow the 76ers to prevent Harden from hitting free agency if he does not report for duty by Nov. 1 which would technically be day 31 of the NBA season. However the CBA’s withholding services clause is clear that it is playing services it applies to. This could be argued to be training camp, which starts Tuesday 3rd October. It could be their first pre-season game which is scheduled for Sunday 8th October.

The clause says nothing about the 30 days being consecutive. So it could be argued by Harden that the 30 days only apply to days when he would be expected to be at training or at a game. In this case the timeline becomes murkier.

That may well be something for the courts to decide, if we ever get there.

When was the NBA’s withholding services clause introduced to the CBA?

A clause about players withholding services in the NBA’s Collective Bargaining Agreement dates back to the early years of the league and has evolved over time. It has been in all iterations of the CBA, starting with the original agreement in 1946..

Withholding services is a common clause in many professional sports contracts and is included to address various issues related to player disputes over contracts and player obligations. The specific language and terms of the NBA’s withholding services provision can change from one CBA to the next as both parties negotiate and update the agreement. We have used the language from the most recent NBA CBA, which went into force on July 1st 2023.

Why does Harden want to leave the Philadelphia 76ers?

To understand why Harden wants to leave the 76ers, first we have to look at how he ended up there.

At the start of the 2020-21 season James Harden played for the Houston Rockets. He had won the MVP with them in 2018 and they had flirted with making the finals. Houston, under the watch of Daryl Morey, had given Harden everything he wanted. They even traded away their only viable center, Clint Capela, midway through the previous season in order to allow Harden and Westbrook to work together better on the court. However, Harden decided he wanted out and showed up to training camp, a few pounds overweight. After featuring in just 8 games for the Rockets he was gone by mid-January 2021. He finished the season at his chosen destination, the Brooklyn Nets. Alongside Kevin Durant and Kyrie Irving Harden was supposed to win multiple championships. After a disappointing 2021 post season and a horrific start to the 2021-22 campaign Harden was disgruntled again. Luckily his GM buddy from the Rockets, Darly Morey was waiting in Philadelphia with open arms and a disgruntled All-star of his own to trade, in Ben Simmons. After lots of dancing about, the deal was done. Harden left Brooklyn for the 76ers and a ‘team-up’ with world crushing center Joel Embiid.

The 2022 Playoffs ended for the 76ers with a second round exit to the Miami Heat in 6 games.
They came back strong the following season with 54 wins, placing them third in the East behind strong Bucks and Celtics teams. This strong season was, however, in part built on the back of James Harden sacrificing some salary.

Ahead of the 2022 season, Harden opted out of his $47.4 million player option then as a free agent Harden signed to a two-year, $68.6 million deal with the 76ers. This was the equivalent to him taking a $14 million pay cut for that season. This gave the 76ers the ability to sign P.J. Tucker, Danuel House Jr. and others, while staying under the tax line.

The two-year agreement included a player option for the 2023-24 season, as far as Harden believed he would opt out again and sign a max deal with Philadelphia in the summer of 2023. He gives a little this year for team success, he gets paid back with a long lucrative contract.

However, the NBA found that this was lined up far enough in advance that they docked the Sixers two second-round picks for tampering with P.J. Tucker. A warning shot across Darly Morey’s proverbial bows. The league was watching.

As rumors swirled as early as Christmas 2022 that Harden was looking for a way back to Houston things started to look familiar. A frustrating 7 game exit to the Celtics in the second round of the Playoffs, in which Embiid hardly touched the ball in the final plays of the series all but finished off Harden’s honeymoon in Philadelphia.

As free agency opened in July Harden, realizing the 76ers were not going to offer him the max contract he wanted and that Houston had decided to invest in a re-build program and had no need for his services, decided forcing another trade was his best remaining option. So instead of becoming a free agent, he opted into the final year of his 76ers deal and requested a trade.

He claims that Daryl Morey specifically is a liar. The inference here being that Morey had promised him a max deal if he took the pay cut in 2022-23 and then reneged. The offering of a deal like this would certainly fall outside of the NBA’s operating guidelines and lead to the wrath of the NBA. We may never actually know the unfiltered truth, but for now what matters is that Harden’s clock is ticking. If he doesn’t want to fall foul of the Withholding Service articles in the CBA, he needs to make his move and make it quickly.