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NBA To Create New “Fitness-to-Play” Panel Which Could Have Implications for Chris Bosh

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Please note that this post contains details about a provision in the new CBA that will take effect next season. The applicability of these rules to the Chris Bosh situation has not yet been definitively established. While nothing in my review of the specific sections of the new CBA that pertain to the matters described in this post would suggest they would not apply, the new CBA does contain a blanket provision that states that a player’s salary with respect to any salary cap year covered by a contract entered into prior to July 1, 2017 will be calculated in accordance with the rules then in effect. That provision could be interpreted to exclude Bosh (and any player whose contract was signed under the current CBA) from the provisions of the new rules described in this post. I can say with absolute certainty that the rules described herein would apply to any player whose situation does not span two CBAs :). 

Please also note that I humbly believe there to be a minor issue with the drafting of the new CBA that pertains to the topics discussed herein. I believe Article XXII, Section 11(g) should reference Article II, Section 3(n), rather than Article II, Section 3(l). I make this suggestion because the language, as written, makes no intuitive sense (at least to me); my suggestion fixes the issue. The following post utilizes the provision as I believe the NBA intended it to be drafted.   

Finally, please note that for more details covering all aspects of the Chris Bosh situation — including his contract, insurance, the rules for cap relief, the potential subsequent rescission of such cap relief, and the mechanisms the Heat can employ to protect itself against such an event, among various other aspects — I might recommend you see this post.

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It was a year ago today, Feb. 9, 2016, that Chris Bosh played his last NBA game.

The one-year anniversary that nobody wanted is here. With it, the Miami Heat is now eligible to apply to have his substantial salaries — $23.7 million for this season, $25.3 million for 2017-18 and $26.8 million for 2018-19 – removed from its cap sheet.

The entirety of that $75.9 million would still be owed, of which as much as $41.0 million would be reimbursed through insurance, but Bosh would no longer take up a massive amount of the Heat’s cap space if the application were to be granted.

The process, designated for long-term injury situations, which we’ll call the “long-term injury cap clearance process,” would go like this:

Following the now-completed waiting period(1), the Heat would apply to the NBA to have Bosh’s salary removed from its cap sheet on the basis that it believes he is dealing with a career-ending medical situation. The league and the players association would then jointly select a physician to review the situation. Salary cap relief would be granted if the physician determines that Bosh’s condition is career-ending, or severe enough that it would subject him to a medically unacceptable risk of suffering a life-threatening or permanently disabling injury or illness. The Heat would receive the associated cap relief upon waiving him.

It seems likely that the Heat would be granted such relief  (though see here for reasons why such a determination might prove challenging).

Bosh was initially diagnosed with blood clots that traveled from his left leg to his lung in February 2015, was subsequently diagnosed with a recurrence of blood clots in his left calf in February 2016, and thereafter failed a preseason physical prior to the start of the 2016-17 season.

After the failed physical, Bosh said in September that “little setbacks happen,” but Heat president Pat Riley reacted differently, saying “we feel that, based on the last exam, that his Heat career is probably over” and that the team is “not working toward his return.”

Blood clotting is a normal process that occurs in the body to prevent bleeding and promote healing after an injury. The body forms blood clots when the platelets within the blood encounter a damaged blood vessel, and then breaks them down as the damaged tissue heals.

Clots can form unexpectedly, however, without notice or purpose, and have dangerous consequences. Certain clots, such as those that start in the leg or calf (called a deep vein thrombosis, or DVT) and travel to the lungs (called a pulmonary embolism), can be fatal. And those who have endured previous clots in the past are particularly susceptible to a recurrence.

Recurrence is more likely in those who initially presented with a pulmonary embolism and is more likely to be another pulmonary embolism (as opposed to a DVT alone), leaving Bosh not just more susceptible to a recurrence but also more susceptible to a potentially more severe type of recurrence. The risk for Bosh is very real, and very serious.

Blood clots are treated with anticoagulant drugs (blood thinners), which prevent further blood clots from forming as the body’s normal systems work to break up the existing clot(s).

For those who have endured a single clotting episode, blood thinners are typically continued for up to six months. However, those who suffer multiple blood clots are at sharper risk of a recurrence, and are typically recommended to remain on blood thinners for the rest of their lives.

Blood thinners greatly reduce the likelihood of future blood clots, but they can have a potentially serious side effect: bleeding.

Since blood thinners slow the clotting of blood, unwanted and sometimes dangerous bleeding can occur with the use of these medications. Although infrequent, uncontrolled bleeding caused by blood thinners can be very serious. A blow to the head, for example, can cause bleeding on the brain and kill you!

The issue for Bosh, then, becomes:

If he doesn’t take blood thinning medication, he is at risk of sustaining more, potential fatal, blood clots. Playing professional basketball only exacerbates that risk.

If he takes blood thinning medication to reduce the likelihood of a future clot, playing professional basketball puts him at increased risk of sustaining a potentially fatal bleeding event. 

Bosh reportedly presented the Heat with a scenario in which he could take a newer form of blood thinner which would leave his system within eight to ten hours, in time to play each game without the thinned out blood that creates the bleeding risk, a regimen used by National Hockey League player Tomas Fleischmann.

But the idea is not without its risks — while taking blood thinners that would leave his system in time for game action would theoretically reduce the elevated bleeding risk, such variability in their use is neither a typically recommended nor adequately tested protocol; and, even if the medication did leave his system in time for game action, it would also simultaneously eliminate the protections against clotting that the blood thinners would provide.

Doctors and teams are therefore hesitant to allow players in Bosh’s situation to return to contact sports, where a potential trauma could have disastrous consequences. Which makes it likely the Heat would be granted cap relief from Bosh’s contract.

If relief were granted, Bosh would not be permitted to play for the Heat ever again. But he wouldn’t necessarily be prevented from attempting to return elsewhere (even immediately thereafter), if a team were willing to sign him (and if the league were to clear him to do so, under authority the legal basis for which could possibly be challenged).

In doing so, that team would effectively need to sign a player which another team has declared a fatality risk. They’d have to get comfortable with the medical, and moral, risk. We’re talking serious stuff here. It is far from certain he would get that chance, even if he intends to return.

But if Bosh were to join another team (even at the minimum salary) and play at least 25 regular- and/or post-season games in this or either of the next two seasons, effectively “proving the doctor wrong,” the cap hits associated with his contract would be returned to the Heat’s cap sheet for the then-current and any future seasons.

That, in turn, could prompt the Heat to apply for relief after Mar. 1, 2017.

By delaying until after Mar. 1, 2017, the Heat would ensure that Bosh would be ineligible for post-season play this season. By that time, no team will have 25 games remaining on its regular season schedule either.

While it remains almost impossible to believe that Bosh would return to play for any NBA team and reach the 25-game threshold this season anyway, by doing so, the Heat would guarantee that Bosh can’t “prove the doctor wrong” and return his salary to the Heat’s cap sheet until, at the very earliest, the start of the 2017-18 season. By that time, the Heat will have already capitalized on the $25.3 million in freed-up summer of 2017 cap space. The only damage it could do then is create huge luxury tax consequences for next season, and subtract from cap space in the following season(s).

That timing, however, may get pushed back even further.

Why?

If the Heat don’t need the $16.1 million of potential cap space the relief would create for this season (which could potentially be leveraged by the Feb. 23 trade deadline, but that seems decidedly unlikely), there is no harm in waiting.

But the Heat could have a second reason to wait: The new CBA contains a provision, separate from the “long-term injury cap clearance process” described above, that could apply to Bosh’s situation (see the qualifications above).

The NBA and players association will, for the first time ever, create “fitness-to-play” panels to deal with various potential life-threatening situations.

Two panels will be initially formed on or before July 1, 2017: one to cover cardiac illnesses and conditions, and another to cover blood clots and other blood conditions and disorders. Additional panels will be formed as necessary.

Each “fitness-to-play” panel will consist of three physicians: one appointed by the NBA, one appointed by the players association, and one appointed by agreement of the first two.

The NBA, a team, or the players association can refer a player to the panel if it has been advised by a physician that the player is medically unable or unfit to play basketball as a result of a potentially life-threatening situation, or that doing so would create a materially elevated risk of death for the player.

Once a player is referred, he is not permitted to play or practice in the NBA until he has been medically cleared by the panel.

The panel will review the situation (and examine the player, if necessary), and report on whether, in its reasonable medical judgment and experience, it feels the player is medically fit to continue playing basketball and that doing so would not create a materially elevated risk of death for the player.

Once a player has been referred to the panel, and prior to its determination, the player will be required to sign a release and covenant that he will not sue for any reason other than medical malpractice.

If the Panel Determines That the Player Is Fit to Continue Playing

If the panel determines that the player is fit to continue playing, he will be required to sign an informed consent and assumption of risk agreement and will thereafter be cleared for play.

The team will not be required to allow the player to play, even if the panel has cleared him.

However, if the team refuses to permit the player to play and practice with the team due to the situation, and if the player is not in the last year of his contract (excluding any option year) at the time the panel makes it determination, then the team will be required, within 60 days of the panel’s determination (or, if the determination is made anywhere between 60 days prior to the trade deadline and May 31, by the following Aug. 1), to take one of the following four actions:

  • Trade the player, or
  • Agree to a buyout with the player, or
  • Waive the player, or
  • Waive the player via a partial waiver claim process (that is substantially similar to how amnesty waivers work in the current CBA, wherein teams can submit a full or partial waiver claim if they have the necessary room, and the highest bidder wins)

If the Panel Determines That the Player Is Not Fit to Continue Playing

If the panel determines that the player is not fit to continue playing, he would  be restricted from playing or practicing in the NBA again, unless and until he receives clearance from the panel.

The NBA, a team, or the players association can again refer the player to the “fitness-to-play” panel, but only if it has been advised in writing by a physician that there have been materially changed circumstances since the panel’s determination (e.g., medical advances or a material change in the player’s medical condition) that should cause the panel to reconsider its determination, and only after the later of: (i) nine months after the panel’s initial determination or (ii) the first day of the following regular season. The same panel members that made the initial ruling must make the new ruling.

Therefore, if the panel determines that the player is unfit to continue playing and nothing changes about the player’s condition that would prompt a reconsideration, it could wind up effectively ending the player’s career.

But here’s the kicker, and where it could apply to the Heat with Bosh:

If the waiting period associated with the “long-term injury cap clearance process” described above has expired(2), which for Bosh it has, the “fitness-to-play” panel can be designated as the physician to determine whether the player has suffered a long-term injury upon agreement of the NBA and the players association.

Why would a team such as the Heat want to utilize the “fitness-to-play” panel as the physician for the “long-term injury cap clearance process”?

Because if the “fitness-to-play” panel determines that the player has suffered not just a long-term injury but rather an injury or illness that would create a materially elevated risk of death for the player, not only will his salary be removed from the team’s cap sheet, it will also be guaranteed not to return to its cap sheet in the future. Under any circumstances. Regardless of whether the player ultimately returns to play with another team or not. Regardless of whether he plays at least 25 games in any one season or not.

That type of assurance could be a huge relief for the Heat – effectively guaranteeing that Bosh’s substantial salary — $25.3 million for 2017-18 and $26.8 million for 2018-19 – would not only be removed from its cap sheet, but also that it could never return.

So the Heat will definitely choose this approach, right?

Not so fast.

There are two major issues with it.

The first major issue is a timing issue: the new CBA do not take effect until July 1, 2017.

It is unclear as to whether the new rules would even apply to a contract signed prior to the effective date of the new CBA, or to a player who has sustained his injury prior to the effective date of the new CBA (again, see the qualifications above). And even if it would apply, there would be additional, potentially serious complications.

For the Heat to leverage the new rules to ensure Bosh’s cap hit would never return, a process of indeterminate length would start no sooner than July 1, the first day of the 2017-18 season, with the annual moratorium period set to expire on July 6. That would give the Heat just six days before unrestricted free agents around the league can sign new contracts (restricted free agents can sign starting July 1) that kick in for next season, throwing substantial uncertainty into what figures to be an exceedingly critical summer for the Heat organization.

Miami currently projects to have as much as $12 million in available cap space prior to Bosh relief (including the non-guaranteed salaries of guards Josh Richardson and Rodney McGruder), with the 2017-18 salary cap currently projected at $102 million. With Bosh relief, the total will grow to $38 million. It will grow further, to $40 million if guard Dion Waiters were to decline his player option ($3.0 million), to $41 million if center Willie Reed were to do the same ($1.6 million), to $44 million if the Heat elect to waive and stretch the $6.0 million salary of forward Josh McRoberts or $46 million if the Heat were to trade him.

From that, the cap room required by the Heat’s first-round draft pick (assuming Miami keeps it) would need to be subtracted. The cap hit would depend upon where it drafts. If we assume the Heat will end up with, say, the #15 pick in the draft as a rough guideline, the Heat would incur a $2.1 million cap hit. With Bosh relief, Miami would have between $36 million and $45 million (depending upon the assumptions for McRoberts, Waiters and Reed) of available cap space to pursue potential free agents next summer.

That’s a huge amount of cap space with which to work this summer, which could be the last substantial opportunity for the Heat to materially improve for some time (with the cap projected to flat-line the season after, guard Tyler Johnson’s contract jumping substantially, Richardson hitting restricted free agency, etc.). The pressure is on!

A process to remove Bosh’s $25.3 million cap hit that only starts on July 1, 2017 could cause potential free agents substantial pause about signing with Miami and, in turn, put the entire Heat’s summer plan at risk.

But even if the Heat could get passed the timing issue, there’s another major issue. And unlike the timing issue, it doesn’t necessarily relate exclusively to Bosh.

The second major issue is a more fundamental one: For the “fitness-to-play” panel to be designated as the physician for the long-term injury evaluation, it would require the agreement of the NBA and the players association.

It is unclear why the players association would ever approve a process that could essentially end a player’s career, if withholding that approval would direct a player to a process that would not necessarily end the player’s career.

Consider Bosh. If he were deemed to have suffered a long-term injury through the normal process, he would be eligible to sign with another team the moment the Heat waived him to gain the cap relief. If he were deemed to have suffered an injury that would create a materially elevated risk of death by “fitness-to-play” panel, he could be done for life.

The players association can’t control whether a player is directed to one of the panels for long-term injury evaluation — that’s at the discretion of the team —  but it can control which one. Its obligation is to the player. So it’s not readily apparent why would it ever choose the one that could end the player’s career.

***

Do the rules of the new CBA that would allow a team to receive cap relief from for a player in a situation such as is Bosh without fear of it ever returning to its cap sheet even apply to the Heat with Bosh?

If so, would the NBA and players association even agree to allow the Heat to pursue the option anyway?

If so, would the Heat even take the risk of delaying its application until the start of the new cap year, rather than simply apply at some point this season (likely after Mar. 1, and possibly even at the end of the season) and be almost definitively granted the relief, all to protect against the unlikely possibility that Bosh’s cap hit would ever return?

If so, would any player even entertain discussions with the Heat about a potential free agent contract this summer if it is uncertain the Heat will have the cap space to execute upon it? Would it put the Heat’s summer plans, and its future, at risk?

If not, was a side arrangement possibly made to allow the Heat to start its application process with Bosh early (perhaps well prior to July 1st)?

It all seems unlikely. But only time will tell.

Notes:

(1) The waiting period depends on the number of combined regular season and postseason games in which the player played in the season. If the player played 10 or more games in a season, the team can apply on the one-year anniversary of the player’s last game. If the player played fewer than 10 in a season, the team can apply 60 days after his last game, or the one-year anniversary of his last game in the previous season, whichever is later.

(2) The waiting period in the new CBA is the same as in the current CBA, as noted in Note 1 above, except that the waiting period cannot expire any earlier than the one year anniversary of first regular season game the player played under the contract in question.

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