F NBA-NBPA GRIEVANCE ESCROW AGREEMENT
F.1 NBA-NBPA GRIEVANCE ESCROW AGREEMENT
Escrow Agreement, dated February 13, 1997, among the National Basketball Association (the “NBA”), for itself and its member teams, the National Basketball Players Association (the “Players Association”), and IBJ Schroder Bank and Trust Company (the “Escrow Agent”):
- When a Player who has been fined and/or suspended files a Grievance with respect to such fine and/or suspension and funds are to be deposited with the Escrow Agent pursuant to Article XXXI of the Collective Bargaining Agreement between the NBA and the Players Association entered into on July 11, 1996 (the “CBA”), the Team employing such Player shall transmit such funds (to the extent withheld from the Player’s Current Cash Compensation, net of any applicable taxes that would have been withheld from such funds had they been paid to the Player, or paid by the Player directly to the Team) promptly to the NBA, which shall then deposit them with the Escrow Agent by wire transfer of immediately available U.S. dollars.
- On any date on which the NBA initiates a wire transfer pursuant to paragraph I(a), the NBA shall give a notice by facsimile to the Players Association and the Escrow Agent setting forth the amount transferred, the reference number for the wire transfer and the name of the Player involved in the Grievance. If the amount transferred is the first deposit by the NBA with respect to the applicable Player and Grievance, the notice shall be in the form of exhibit I(b)(i); if the amount transferred is an additional deposit by the NBA with respect to the applicable Player and Grievance, the notice shall be in the form of exhibit 1(b )(ii). On the business day immediately following its receipt of a notice pursuant to this paragraph I(b), the Escrow Agent shall deliver a copy of that notice to the NBA, the Players Association and the Team involved, acknowledging receipt of those funds and their deposit into an escrow account pursuant to this agreement (or, if applicable, a separate notice advising that those funds had not been received as of 12:00 p.m.(NYT) on such next business day). All amounts deposited by the NBA with the Escrow Agent under this agreement shall be held in an escrow account bearing the name of the NBA, the name of the Team involved, the name of the Player, the date of the initial deposit and the words “Grievance Escrow Account,” which account shall be separate from all other accounts created under this agreement.
The Escrow Agent shall invest the amounts deposited with it pursuant to this agreement in the Escrow Agent’s interest bearing money market account. All interest earned on those amounts shall be held and disposed of by the Escrow Agent pursuant to this agreement.
At least once each month during the term of this agreement, commencing with the month following the month in which the first escrow account is established, the Escrow Agent shall deliver to the NBA and the Players Association a statement reflecting the investment activity with respect to each escrow account established under this agreement during the prior month.
If the Escrow Agent receives a writing signed jointly by a person certifying that he is an NBA Officer and a person certifying that he is a Players Association Officer and giving the Escrow Agent directions with respect to all or part of the funds in a particular escrow account, the Escrow Agent shall comply promptly with such directions. For purposes of this agreement, an “NBA Officer” shall be any of the persons listed on Exhibit 4A and a “Players Association Officer” shall be any of the persons listed on Exhibit 4B. Exhibits 4A and 4B may be modified from time to time by a notice from the NBA (in the case of Exhibit 4A) or the Players Association (in the case of Exhibit 4B) to the Escrow Agent and the other party. Whenever this agreement provides for a writing to be delivered by a party to the Escrow Agent, the Escrow Agent shall only rely on a writing signed by an NBA Officer, if given on behalf of the NBA, and a writing signed by a Players Association Officer, if given on behalf of the Players Association.
Except as otherwise provided in paragraph 4, the Escrow Agent shall hold the funds in a particular escrow account until receipt of a copy of a final determination of the Grievance Arbitrator pursuant to the CBA directing the Escrow Agent to dispose of those funds (including any interest earned thereon). The Players Association and the NBA shall, or shall cause each of the Player (in the case of the Players Association) and the Team (in the case of the NBA) involved, respectively, to, (i) request such a determination as part of its request for relief from the Grievance Arbitrator in connection with the Grievance, (ii) advise the Grievance Arbitrator that any interest constituting escrowed funds should be allocated to the parties in proportion to the other amounts of escrowed funds determined to be payable to them, and (iii) submit to the exclusive jurisdiction of the Grievance Arbitrator to make such determination. Upon receipt of any such determination with respect to the disposition of escrowed funds, the Escrow Agent shall promptly comply with its terms. For purposes of this agreement, the “Grievance Arbitrator” shall be the person identified on Exhibit 5, which Exhibit may be modified from time to time by a notice from the NBA and the Players Association to the Escrow Agent. The Players Association and the NBA shall cause each Player and each Team, respectively, that is entitled to a distribution under this agreement to provide the Escrow Agent with his or its taxpayer identification number prior to receiving that distribution.
This agreement and the duties of the Escrow Agent hereunder shall terminate upon receipt by the Escrow Agent of a joint written notice of termination from the NBA and the Players Association, which notice shall direct the disposition of any amounts then held by the Escrow Agent pursuant to this agreement.
The Escrow Agent shall have no duty or responsibility not expressly set forth in this agreement and shall not be bound by or have any responsibility with respect to any agreement among any other persons, including the CBA. The Escrow Agent shall incur no liability whatsoever to the NBA or to the Players Association or to any NBA Team or Player (including, but not limited to, on account of a loss incurred from an investment made in accordance with paragraph 2), except for liabilities arising from the Escrow Agent’s bad faith, gross negligence or willful misconduct. The Escrow Agent will be protected in acting upon any writing believed in good faith by the Escrow Agent to be genuine and containing what purports to be authentic signatures, and the Escrow Agent shall have no obligation to verify or investigate the accuracy of any such writing. The Escrow Agent may consult with its counsel and shall incur no liability for any action taken or omitted in good faith in accordance with the advice or opinion of such counsel. In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder, it shall, without liability of any kind, be entitled to hold the escrowed funds pending the resolution of such uncertainty to the Escrow Agent’s satisfaction, or the Escrow Agent may, in final satisfaction of its duties hereunder, deposit the escrowed funds with the Clerk of the United States District Court for the Southern District of New York.
The NBA and the Players Association jointly and severally shall hold the Escrow Agent harmless and indemnify the Escrow Agent against any loss, liability, claim or demand arising out of or in connection with the performance of its obligations in accordance with the provisions of this agreement, except for losses, liabilities, claims or demands arising from the bad faith, gross negligence or willful misconduct of the Escrow Agent. The foregoing indemnities in this paragraph shall survive termination of this agreement or resignation of the Escrow Agent.
The Escrow Agent’s fee for its services under this agreement is set forth on Schedule 1; such fee shall be paid in the manner set forth on Schedule 1.
The Escrow Agent may resign at any time by giving written notice thereof to the NBA and the Players Association, but such resignation shall not become effective until a successor escrow agent shall have been appointed and shall have accepted such appointment in writing. If an instrument of acceptance by a successor escrow agent shall not have been delivered to the Escrow Agent within 30 days after the giving of such notice of resignation, the Escrow Agent may petition the Grievance Arbitrator for the appointment of a successor escrow agent; and the NBA and the Players Association hereby agree that the Grievance Arbitrator shall have the authority to appoint such successor escrow agent. In the event that a successor escrow agent shall not have been appointed and the Escrow Agent shall not have turned over to the successor escrow agent the escrowed funds within 45 days after the giving of such notice of resignation, the Escrow Agent may deposit the escrowed funds with the Clerk of the United States District Court for the Southern District of New York, at which time the Escrow Agent’s duties hereunder shall terminate.
Except as expressly provided in this agreement, the Escrow Agent shall not be bound by any purported waiver, amendment, modification, termination, cancellation or rescission of this agreement, unless the same shall be evidenced by a writing jointly signed by an NBA Officer and a Players Association Officer. No amendment or modification of this agreement shall affect the Escrow Agent’s duties or responsibilities hereunder unless the Escrow Agent’s written consent thereto shall have been obtained.
All notices required or permitted under this agreement shall be in writing and shall be considered given when delivered personally or sent by facsimile (with a copy by any other means permitted for the giving of notices under this agreement, unless such notice is sent pursuant to paragraph l(b)), or one day after delivery by a reputable overnight courier, to the parties at the addresses set forth below (or at such other address as a party may specify by notice similarly given):
If to the Escrow Agent, to:
IEJ Schroder Bank and Trust Company
One State Street
New York, New York 10004
Attention: Corporate Trust Administration
Facsimile: (212) 858-2952If to the NBA, to:
National Basketball Association Olympic Tower
645 Fifth Avenue
New York, New York 10022
Attention: General Counsel
Facsimile: (212) 888-7931If to the Players Association, to:
National Basketball Players Association
1700 Broadway
New York, New York 10019
Attention: Counsel
Facsimile: (212) 956-5687This agreement constitutes the entire agreement of the parties with respect to its subject matter and shall be governed by and construed in accordance with the law of the state of New York applicable to agreements made and to be performed entirely in New York. This agreement shall be binding upon and shall inure to the benefit of the successors and assigns of the parties. This agreement may be executed in two or more counterparts, which together shall constitute one and the same instrument.
NATIONAL BASKETBALL ASSOCIATION,
for itself and its member teams
By: /s/ David I. Stern
David I. Stern
Commissioner
NATIONAL BASKETBALL PLAYERS ASSOCIATION
By: /s/ G. William Hunter
G. William Hunter
Executive Director
IBI SCHRODER BANK AND TRUST COMPANY
By: /s/_________________
Name:
Title:
F.1.1 SCHEDULE 1
F.1.1.1 Fees of Escrow Agent
The fees of the Escrow Agent for its services pursuant to this agreement shall be an inception fee of $2,500, which shall be paid 50% by the NBA and 50% by the Players Association upon the execution of this agreement. In addition, the Escrow Agent shall be paid an annual custody fee of $5,000, which shall be paid 50% by the NBA and 50% by the Players Association on each anniversary of the date of this agreement (or a pro-rated portion of that amount on the date this agreement otherwise terminates).
F.1.2 EXHIBIT 1(b)(i)
[LETTERHEAD OF NBA]
| [Escrow Agent] |
| ____________________________________ |
| ____________________________________ |
| Attention:__________________________ |
| ____________________________________ |
Re: Initial Deposit pursuant to the NBA-NBPA Grievance Escrow Agreement dated February 13, 1997 (the “Grievance Escrow Agreement”)
Dear Sir or Madam:
Please be advised that pursuant to paragraph l(a) of the Grievance Escrow Agreement, the National Basketball Association has today initiated a wire transfer to you in the amount of (U.S.) $ _____ (reference no. ), which amount is the subject of a Grievance involving the [NBA or Insert Name of Team] and [Insert Name of Player.] Such amount (and all interest earned thereon) is to be held by you pursuant to the Grievance Escrow Agreement.
Very truly yours,
| National Basketball Association |
| By: ______________________________________ |
| Name: ____________________________________ |
| Title: ___________________________________ |
| Address for Acknowledgment _______________ |
cc:
| National Basketball Players Association |
| 1700 Broadway |
| New York, New York 10019 |
| Attention: Counsel |
ACKNOWLEDGMENT
The undersigned acknowledges receipt of the funds referred to in the above notice and has deposited such funds in an escrow account entitled NBA/[Insert Team Name] - [Insert Player Name] Grievance Escrow Account dated _____________, ______.
Very truly yours,
| [ESCROW AGENT] |
| By: ______________________________________ |
| Name: ____________________________________ |
| Title: ___________________________________ |
F.1.3 EXHIBIT 1(b)(ii)
[LETTERHEAD OF NBA]
| [Escrow Agent] |
| ____________________________________ |
| ____________________________________ |
| Attention:__________________________ |
| ____________________________________ |
Re: Additional Deposit pursuant to the NBA-NBPA Grievance Escrow Agreement dated February 13, 1997 (the “Grievance Escrow Agreement”)
Dear Sir or Madam:
Please be advised that pursuant to paragraph 1(a) of the Grievance Escrow Agreement, the National Basketball Association has today initiated a wire transfer to you in the amount of (U.S.) $ _ __ (reference no. ), which amount is the subject of a Grievance involving the [NBA or Insert Name of Team] and [Insert Name of Player.] Such amount (and all interest earned thereon) is to be held by you pursuant to the Grievance Escrow Agreement in the previously established NBA/ [Insert Team Name] - [Insert Player Name] Grievance Escrow Account dated _____________, ______.
Very truly yours,
| National Basketball Association |
| By: ______________________________________ |
| Name: ____________________________________ |
| Title: ___________________________________ |
| Address for Acknowledgment _______________ |
cc:
| National Basketball Players Association |
| 1700 Broadway |
| New York, New York 10019 |
| Attention: Counsel |
ACKNOWLEDGMENT
The undersigned acknowledges receipt of the funds referred to in the above notice and has deposited such funds in the previously established escrow account entitled NBA/[Insert Team Name] - [Insert Player Name] Grievance Escrow Account dated _____________, ______.
Very truly yours,
| [ESCROW AGENT] |
| By: ______________________________________ |
| Name: ____________________________________ |
| Title: ___________________________________ |
| Date: ____________________________________ |
F.1.4 Exhibit 4A
Names of NBA Officers
- Jeffrey A. Mishkin
- Joel M. Litvin
- Richard W. Buchanan
- Robert Criqui