By Matthew Cali on November 23, 2012
The NBA’s first full season after the new Collective Bargaining Agreement (CBA) has many storylines fans are eager to see develop. However, despite the high expectations, this year may flop. The NBA has instituted a new “anti-flopping” rule that hopes to prevent players from deceiving the referees into making foul calls. The impetus for this rule is the long history of infamous “floppers,” such as Reggie Miller with his leg kick and Vlade Divac falling when Shaq would sneeze.2] These acts led to fouls that did not deserve to be called. The new rule was not contained in the new CBA and has led to the National Basketball Player’s Association (“NBPA”) threatening to file labor grievances for unfair labor practices. The question now is whether the NBA will flip-flop on the anti-flopping rule.
Where’s the Foul?
The NBA created the anti-flopping rule to “penalize floppers this season, [by] fining players for repeated violations” of an act that has “no place in our game.” The NBA has set fines ranging from $5,000 to $30,000 for repeat offenders and may include suspensions. Referees and officials may call out “floppers” on the court or after the game while reviewing the game film.
Some players believe this is a necessary rule because flopping “is not basketball” and is “ridiculous.” However, the subjectivity of the rule has become a concern for most players. The NBA declared that “flopping” is any physical act that appears to have been intended to cause the referees to call a foul on another player. Further, the primary factor officials look for to determine whether a player committed an illegal flop is whether his “physical reaction to contact with another player is inconsistent with what would reasonably be expected given the force or direction of the contact.” This is an extremely broad power given to officials during and after the games. Players are worried about the consistency in making “flop-calls” on both offense and defense. Moreover, specific players have been warned prior to the full implementation of the rule leading suspicion of bias and discrimination based on previous play.
CHARGE!!…No Wait, Block!?!
The NBPA has stated its intent to file a grievance and an unfair labor practice charge with the National Labor Relations Board for violating procedural policy in implementing this rule. Thus, the NBPA feels it has been slighted because the NBA has made disciplinary rules without collectively bargaining with the players’ union or considering any alternatives. 
According to Article VI, Section 8 On-Court Conduct of the current CBA, the NBA is given power to promulgate and enforce reasonable rules governing players’ conduct on the court that does not violate any aspects of the CBA. However, before promulgating new rules, the NBA is required to provide notice to and consult with the NBPA. The anti-flopping rule was made unilaterally, without the NBPA’s consultation.
Because the NBA did not consult with the NBPA, an individual team, player, or the NBPA may file a grievance against the NBA. However, a grievance may only be filed after there has been an attempt to settle without an arbitrator’s guidance and within thirty days of the action that the grievance is based. Thus, the NBA and NBPA will meet prior to the grievance being filed to discuss the rule.
Standing Their Ground
The NBA will not back down from its position because it does not believe it has violated any laws and thus will not settle with the NBPA regarding this rule. Consequently, with NBA commissioner David Stern already set to leave the NBA in 2014, this may be “Stern’s Last Stand” on players’ conduct. However, the NBPA will file a grievance and it is likely that the NBPA will win this dispute.
The NBA overstepped its boundaries and unilaterally implemented rules that have a direct financial impact on the players. The rule completely changes how some players play. Despite some players agreeing that it is a necessary rule, flopping is a universal part of sports. Athletes exaggerate plays in almost every sport without being penalized as severely as Stern suggests. If the two sides do plan to settle, then the suggestion of technical fouls may serve as a happy median. However, despite the NBA trying to be a trailblazer for flopping, the only trailblazing the NBA will be doing this season will be in Portland.
 See NBA Announces New Anti-Flopping Rule, NBA (Oct. 3, 2012, 1:25 PM), http://www.nba.com/2012/news/10/29/nba-flopping-rules.ap/index.html (presenting NBA’s new anti-flopping rule and penalties); see also Henry Abbott, The First Official Floppers, ESPN (Nov. 5, 2012, 6:09 PM), http://espn.go.com/blog/truehoop/post/_/id/51090/the-first-official-floppers (providing names and scenarios of first penalized floppers).
 See New Flopping Rules to Shape Upcoming Season, NBA (Oct. 29, 2012, 5:56 PM), http://www.nba.com/2012/news/10/03/anti-flopping-rule/index.html (providing history of flopping in NBA).
 See NBA Releases Guidelines for Anti-Flopping Rule, NBA (Oct. 4, 2012, 7:42 AM), http://www.nba.com/2012/news/10/03/nba-sets-flopping-penalties.ap/index.html (stating NBPA’s threatening to file grievance based on procedural failures).
See id. (stating NBA does not believe flopping should be part of basketball).
 See id. (providing monetary punishments for repeat violations).
See id. (noting players may be penalized during and after games).
 See NBA Announces New Anti-Flopping Rule, supra note 1 (explaining players’ reactions to rule).
See id. (providing NBA’s definition of flopping).
 See id. (noting strategy NBA officials intend to employ to recognize and penalize flopping).
 See id. (noting players’ concerns over new rule).
See Henry Abbott, Jarrett Jack Says He’s Been Warned, ESPN (Oct. 17, 2012, 1:21 PM), http://espn.go.com/nba/story/_/id/8515851/jarrett-jack-golden-state-warriors-says-received-warning-flopping (explaining NBA warned specific players prior to full implementation of rule).
See NBA Releases Guidelines for Anti-Flopping Rule, supra note 3 (stating NBPA’s intent to file grievance); see also Luke Adams, NBA Introduces Anti-Flopping Rule, Union Protests, Hoops Rumors (Oct. 3, 2012, 10:49 PM CST), http://www.hoopsrumors.com/2012/10/nba-introduces-anti-flopping-rule.html (providing statement from union executive director Billy Hunter on NBPA’s desire to file grievance). Hunter stated:
The NBA is not permitted to unilaterally impose new economic discipline against the players without first bargaining with the union. We believe
that any monetary penalty for an act of this type is inappropriate and without precedent in our sport or any other sport. We will bring appropriate
legal action to challenge what is clearly a vague and arbitrary overreaction and overreach by the commissioner’s office.
See Adams, supra note 12 (stating union vice president Matt Bonner’s hope that rule is changed).
See NBPA Collective Bargaining Agreement 2011, Nat’l Basketball Players Ass’n, available at https://www2.bc.edu/~yen/Sports/NBA%20CBA.pdf (last visited Nov. 18, 2012) [hereinafter “ NBPA CBA”] (providing procedural rules regarding on-court player conduct).
See id. (stating NBA needs to consult with NBPA regarding rule changes prior to enacting those rules).
See NBPA CBA, supra note 14, at Art. XXXI, Section 2 (stating grievance filing protocol).
See id. at Art. XXXI, Section 2, Cl. (b) (noting time limitations on filing grievances).
 See NBA Releases Guidelines for Anti-Flopping Rule, supra note 3 (providing NBA’s stalwart stance on rule). NBA spokesman Tim Frank stated, “Although we haven’t seen any filing from the Players Association, our adoption of an anti-flopping rule is fully consistent with our rights and obligations under the collective bargaining agreement and the law.” Id.
See Kareem Abdul-Jabbar, David Stern Will Leave NBA Stronger, ESPN (Nov. 1, 2012, 1:54 PM), http://espn.go.com/nba/story/_/id/8579470/david-stern-leave-nba-stronger (noting Stern plans on retiring February 2014).