Wednesday, December 28th, 2011...4:02 pm

Playing Overseas During the NBA Lockout: Why Some Return and Others Do Not

Jump to Comments

By Nathan Yu

With the recent news that Kenyon Martin has put an end to his relationship with the Chinese Basketball Association’s Xinjiang Guanghui Flying Tigers, I want to discuss the issue of players who laced up their sneakers overseas during the NBA lockout and the possibility of them returning to the NBA now that the lockout has ended and the hoops season is scheduled to begin in a matter of days.

The list of players who have played or are currently playing overseas includes Deron Williams, J.R. Smith, Wilson Chandler, Chris Douglas-Roberts, Aaron Brooks, and the aforementioned Martin. While some, like Williams, have returned to the NBA and played in preseason games, others, like Martin, have not yet stepped onto an NBA court. That begs the question:  What, exactly, distinguishes Williams’s case from Martin’s? While the media attributes the difference to China’s supposed policy against opt-out clauses, that portrayal is sloppy at best. Instead, the important distinction is that Williams is under contract with the Nets (until the end of this upcoming season), whereas Martin is a free agent (his contract with the Denver Nuggets ended after this past season).

Let us start with some groundwork. The International Basketball Federation, more commonly known as FIBA, is a non-profit organization, based in Switzerland, that governs the sport of basketball worldwide. Think of FIBA as the basketball equivalent of the United Nations. FIBA establishes international rules for the sport, hosts wonderful international tournaments, and plays a big role in Olympic basketball. A total of 214 “national federations” are members of FIBA–they pay dues, agree to follow regulations, and receive certain rights in return. The United States is a member of FIBA, and so are countries like China, Germany, and Italy.

One of the rights that these FIBA members receive is a license restriction over players who wish to play basketball in their country. Volume 3, Article 66, of the FIBA 2010 Internal Regulations states, “A player may not be licensed by more than one national member federation at the same time.” In simpler terms, if you are under a contract to play for an NBA team (thus licensed by the United States), you cannot go to Germany and play for a team in the German professional league because Germany, as a party to FIBA, could not issue you a license to play. If they allowed you to play, you would be effectively licensed in two countries, which violates Volume 3, Article 66 above.

The obvious follow-up question is, “How does a player move from one country to another without violating the license restriction?” The new country has to obtain a “letter of clearance” from the prior licensing country. A letter of clearance “certifies that the player concerned is free to be licensed by another member federation.” Volume 3, Article 42. The Internal Regulations goes on to say that the ONLY reason for which a national member federation may refuse to grant a letter of clearance is if the player is under contract to play for his club beyond the scheduled transfer date. Volume 3, Article 46. And that is where the cases of Williams and Martin diverge.

Williams is under contract with the Nets for another season. Under normal circumstances, the Nets would not have allowed Williams to play in Turkey because they own his contractual rights and he would have been barred from playing in another FIBA country. However, when the NBA lockout began, his contract with the Nets was suspended. As a result, the Nets could not enforce the license restriction it normally would have to prevent Williams from playing in Turkey. In response to this issue, FIBA issued a policy letter on July 27, 2011, granting an exception for the NBA lockout. The letter stated that during the lockout, an NBA player under contract could play anywhere they wanted provided that the foreign country return the player to his NBA team when the lockout ended.

While this may seem similar to an opt-out clause, it is not. An opt-out clause is an option that can be exercised by whoever owns that right, whereas these contractual measures crafted by the lockout exception were mandatory. In other words, if these are truly opt-out clauses as the media portrays them to be, then Deron Williams COULD have decided to stay in Turkey and play instead of returning to the Nets; however, Williams could NOT have chosen that–FIBA would not have let Williams play in Turkey and Williams would have clearly violated his contract with the Nets at that point.

The NBA lockout exception to license restrictions does NOT apply to Kenyon Martin because Martin was a free agent at the end of last season. His contract with the Nuggets expired, so he did not belong to any team. Thus, when Martin signed with the Flying Tigers in China, there was no team to which China was obligated to return Martin. Instead, by signing as a free agent to play in China, Martin’s license to play basketball exists in China, and China must issue a letter of clearance to the United States in order for Martin to play for an NBA team. Looking at the situation, it comes as no surprise that China would be reluctant to issue that letter of clearance; I could imagine an NBA team doing the exact same thing if the roles were reversed. Furthermore, this is not particular to Chinese basketball; free agent forward Hilton Armstrong signed a one-year deal to play in France, and France, like China, is not obligated to return Armstrong anywhere; if Armstrong broke his deal with the French club, the NBA would need a letter of clearance from France for him to play in the NBA. I think China has gotten the media attention mainly because the biggest names are playing there (Martin, Smith, Chandler, Brooks) and those are the guys who are fighting the hardest to return to the NBA.

To summarize, the important thing to ask with regard to anyone playing overseas is whether they were a free agent at the end of last season. If the answer is no, then that player likely has returned or will return to the NBA this season. That should be an easy case. But if the answer is yes–that the player was a free agent–then the foreign country is under no obligation to return the player to the NBA, and any return to the NBA must be accomplished by a letter of clearance from the foreign country, in addition to any termination of contract.

Nathan Yu is a regular contributor to the William & Mary Sports and Entertainment Lw Society Blog. He can be reached at nyu@email.wm.edu

Comments are closed.