Article 4 BENEFITS

4.1 Player Pension Benefits.

Subject to approval by the Internal Revenue Service (the “IRS”) and to the extent permitted by applicable law, the NBA shall provide the following pension benefits to NBA players and former NBA players in accordance with and subject to the terms and conditions of the National Basketball Association Players’ Pension Plan, as restated effective February 2, 2014, and as amended from time to time and as to be modified as set forth herein (the “Pension Plan”). (All capitalized terms used in this Section 1 not otherwise defined in this Agreement shall have the meanings set forth in the Pension Plan.)

  1. Benefits.
    1. Current Benefit. As of the effective date of this Agreement, the monthly amount per Year of Credited Service payable as a Normal Retirement Pension (the “Monthly Benefit”) is $572.13.
    2. Benefit Increases. Effective for the Plan Year commencing February 2, 2018, and for each subsequent Plan Year during the term of this Agreement:
      1. The Monthly Benefit shall be adjusted (the Monthly Benefit following any such adjustment, the “New Monthly Benefit”) such that, subject to Section 1(a)(4) below, the Normal Retirement Pension shall equal the maximum benefit amount permitted under the Internal Revenue Code of 1986, as amended (the “Code”) (and the regulations issued thereunder), as in effect as of the effective date of this Agreement, as such maximum benefit amount may be adjusted for future increases in the cost-of-living in the manner prescribed by Section 415(d)(2) of the Code. Effective for the Plan Year commencing February 2, 2018, and for each subsequent Plan Year during the term of this Agreement, the amount of the New Monthly Benefit shall be determined using the modified actuarial reduction factors to be specified in the Pension Plan by amendment effective for the Plan Year beginning February 2, 2018.
      2. Any increase in the Normal Retirement Pension payable on or after the date of this Agreement: (A) shall apply only to those players and beneficiaries (x) who have not yet received or begun to receive a benefit under the Pension Plan as of the first day of the month following the beginning of the Plan Year to which the increase relates (the “New Benefit Increase Commencement Date”) or (y) who are receiving monthly benefits under the Pension Plan as of the New Benefit Increase Commencement Date; (B) shall be effective as of the New Benefit Increase Commencement Date; (C) shall apply only to any benefit payment(s) to be made on or after the applicable New Benefit Increase Commencement Date; and (D) shall not require the recalculation of any benefit payment(s) made prior to the applicable New Benefit Increase Commencement Date.
      3. The Pension Plan shall provide that the amount of the Normal Retirement Pension that exceeds the Fixed Part A Benefit (defined below) (other than any death benefits payable to a beneficiary pursuant to Article VII of the Pension Plan) shall not be payable in the form of a Lump Sum Option. The “Fixed Part A Benefit” shall mean that portion of the Normal Retirement Pension equal to the amount described in Section 1.21 of the Pension Plan as of the effective date of this Agreement; provided, however, that no adjustments for increases in the cost-of-living that may go into effect after the effective date of this Agreement shall be taken into account for purposes of calculating the Fixed Part A Benefit.
      4. The Pension Plan shall be amended to provide that a player shall not be considered to be on the Roster for a Regular Season solely because he was under a 10-Day Contract or Two-Way Contract as of February 2nd of such Regular Season.
    3. Pre-1965 Players and Pre-1965 Retirees. Effective for the Plan Year commencing February 2, 2018, and for each subsequent Plan Year during the term of this Agreement:
      1. The Pension Plan shall be amended to provide that the Normal Retirement Benefit payable to a Pre-1965 Player and the “A portion” of the Retirement Benefit payable to a Pre-1965 Retiree shall be $400 per month for each Year of Pre-1965 Credited Service or Year of Eligible Pre-1965 Retiree Service, respectively (the “2017-18 Pre-1965 Benefit Increase”).
      2. Any pension benefits that are unable to be paid to Pre- 1965 Players and Pre-1965 Retirees because of the benefit limitations imposed by Section 415 of the Code shall be paid to such Pre-1965 Players and Pre-1965 Retirees pursuant to the National Basketball Association Excess Benefit Plan for Pre-1965 Players (the “Pre-1965 Players Excess Benefit Plan”).
      3. The increase provided by this Section 1(a)(3) shall: (A) apply only to those Pre-1965 Players, Pre-1965 Retirees or their beneficiaries who are receiving monthly pension benefits as of March 1, 2018; (B) apply only with respect to any pension benefit payment(s) made on or after March 1, 2018; and (C) not require the recalculation of any pension benefit payment(s) made prior to March 1, 2018.
    4. Limitations on Benefits. Notwithstanding anything contained herein to the contrary:
      1. Neither: (A) the pension benefits accrued or payable to any player or beneficiary for a Plan Year nor (B) the New Monthly Benefit for a Plan Year shall exceed the maximum benefit amount permitted under the Code (and the regulations issued thereunder) as in effect for that Plan Year (as adjusted in accordance with the actuarial factors specified in the Pension Plan and as in effect on the date that the benefit accrues or commences (or is paid) or for the Plan Year for which the New Monthly Benefit is determined), as such maximum benefit amount may be adjusted for future increases in the cost-of-living in the manner provided under Section 415(d)(2) of the Code.
      2. Neither the pension benefits accrued nor payable to any player or beneficiary for a Plan Year shall exceed the maximum benefit amount permitted under the Code (and the regulations issued thereunder), as in effect as of the effective date of this Agreement, as adjusted in accordance with the actuarial factors specified in the Pension Plan, and as may be adjusted for future increases in the cost-of-living in the manner prescribed by Section 415(d)(2) of the Code.
      3. If all or any portion of the actuarially-determined annual contributions to be made to the Pension Plan would not be fully deductible under the Code when paid to the Pension Plan, the New Monthly Benefit shall not exceed the amount which would result in all of such contributions being fully-deductible when paid. In the event that any such contribution or portion thereof is not fully deductible when paid, the NBA and the Players Association agree to bargain in good faith with respect to an alternative arrangement to be provided by the NBA Teams to the players. The costs of any such alternative arrangement shall be at an annual cost (as determined on an after-tax basis) to the NBA Teams substantially equal to but no greater than the annual accrual cost that such Teams would have incurred under the Pension Plan to fund the amount by which the New Monthly Benefit is reduced pursuant to this Section 1(a)(4)(iii). If despite good faith negotiations, the NBA and the Players Association fail to agree with respect to an alternative arrangement as described above, such failure to agree shall not create any right: (A) to unilaterally implement during the term of this Agreement any terms concerning the provision of pension benefits to the players; (B) to lockout; or (C) to strike.
  2. Administration. Effective as of the effective date of this Agreement, the NBA and the Players Association shall cause to be amended the Pension Plan and the Agreement of Trust, by and among the NBA Teams and certain individual Trustees, dated January 17, 1997 (the “Pension Trust Agreement”) to provide that the Pension Plan shall be maintained and operated as described in this Section 1(b).
    1. Subject to Section 1(b)(5), which is expressly designed to survive the expiration or termination of this Agreement, the Pension Plan shall be jointly operated and administered by the NBA and Players Association in accordance with Section 302(c)(5) of the Labor Management Relations Act of 1947, as amended, and the provisions of the Pension Trust Agreement and the Pension Plan. The Pension Trust Agreement shall provide for a six (6)-member Board of Trustees (the “Pension Plan Trustees”), three (3) of whom are to be appointed by the NBA and three (3) of whom are to be appointed by the Players Association; provided, however, that the daily operations of the Pension Plan shall be delegated to one or more independent third-party administrators, as selected by the Pension Plan Trustees in their sole discretion. In the exercise of its responsibilities, each such independent third-party administrator shall be required to comply with ERISA and all other applicable laws and to act in a manner that is consistent with the provisions of the Pension Trust Agreement and the Pension Plan.
    2. It is intended by the NBA and the Players Association that: (i) the Pension Plan shall continue to constitute a collectively-bargained multiemployer defined benefit pension plan that is tax-qualified under Section 401(a) of the Code; and (ii) the Pension Plan’s corresponding Trust is exempt from taxation under the provisions of Section 501(a) of the Code.
    3. Subject to the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), including, without limitation, ERISA’s requirements applicable to pension plan fiduciaries, or other applicable law, the Pension Plan Trustees will give due consideration to past practice with regard to administrative determinations and interpretations.
    4. An arbitration provision will be added to the Pension Trust Agreement substantially in the form as follows: In the event that the Trustees cannot decide any question of the administration (within the meaning of Section 302(c)(5) of the Labor Management Relations Act of 1947, as amended) of the Pension Plan or Trust because of a tie vote or lack of a quorum at two (2) successive meetings of the Trustees, then the Trustees shall, upon written application of the NBA Trustees or the Players Association Trustees, submit such dispute to an impartial umpire in accordance with the American Arbitration Association’s Impartial Umpire Rules for Arbitration of Impasses Between Trustees of Joint Employee Benefit Trust Funds. The decision of said umpire shall be final, binding and conclusive upon the Trustees and all persons concerned. To the extent permitted by applicable laws, the fee of the impartial umpire and the American Arbitration Association, together with such other costs and expenses as may be authorized by the Trustees, shall be proper charges against the Trust, which the Trustees are authorized to pay. The impartial umpire in his or her decision shall be bound by the provisions of the Pension Plan, the Pension Trust Agreement and the charters, rules, policies and procedures put in place by past or current Pension Plan fiduciaries (the “Governing Documents”). The impartial umpire shall have no power or authority to add to or subtract from the Governing Documents or to change, modify or amend the provisions of the Governing Documents or the Collective Bargaining Agreement between the NBA and the Players Association. Notwithstanding the foregoing, neither the Trustees appointed by the NBA nor the Trustees appointed by the Players Association may compel arbitration regarding a claim for benefits that would be time-barred under the Pension Plan or applicable law.
    5. Notwithstanding anything in this Agreement to the contrary, immediately upon expiration or termination of this Agreement: (i) the Players Association shall forfeit its right to appoint Pension Plan Trustees; (ii) the appointment and Trusteeship of the then-current Pension Plan Trustees who had been appointed by the Players Association shall automatically end; and (iii) sponsorship, administration and operation of the Pension Plan shall automatically revert back to the NBA. The Pension Plan shall again become jointly operated and administered by the NBA and Players Association immediately upon their entering into a new collective bargaining agreement, and the provisions of this Section 1(b) shall be incorporated into such new agreement. Furthermore, in the event that the sponsorship and administration has reverted back to the NBA under this paragraph, and subject to ERISA, including, without limitation, ERISA’s requirements applicable to pension plan fiduciaries, the Trustees who are appointed by the NBA will continue to give due consideration to past practice, including past practice established during the period of joint administration by the NBA and Players Association, with regard to administrative determinations and interpretations.
  3. Contributions/Funding. The NBA and Players Association acknowledge and agree that the Teams shall continue at all times to contribute to the Plan at least the amount necessary to meet the Pension Plan’s statutory minimum funding requirements under Section 412, Section 431 and, if applicable, Section 432 of the Code, or any other applicable law (the “Minimum Funding Standards”) for such Plan Year, as determined by the actuaries of the Pension Plan. For any period during the term of this Agreement during which a new “funding improvement plan” (a “FIP”) is required to be adopted by the Pension Plan under the Minimum Funding Standards, the funding benchmark for such FIP shall equal the funding benchmark required by the Minimum Funding Standards. The Teams may, in the sole discretion of the NBA, contribute to the Pension Plan more than the amount necessary to meet the Minimum Funding Standards; provided, however, that any such additional contribution amount shall not be greater than the contribution amount determined by the actuaries of the Pension Plan in accordance with the Pension Plan’s historical scheduled contribution methodology. All contributions shall be conditioned on their being fully deductible by the Teams when paid.
  4. Players Employed by Toronto.
    1. Players employed by Maple Leaf Sports & Entertainment Partnership (or any successor thereto) (“Toronto”) or by an NBA Team located in any country other than the United States shall receive pension benefits of comparable value. Except as otherwise provided in Section 1(d)(2), players employed by Toronto (“Toronto Players”) shall continue to receive such benefits by means of the Pension Plan and a separate pension plan maintained by Toronto (the “Toronto Plan”); provided, however, that a player shall not be eligible to participate (or continue to participate) in the Pension Plan for any period of time during which the player is both a resident of Canada for income tax purposes and a Toronto Player (a “Canadian Resident”) but shall instead be eligible to receive a cash payment as described in Section 7 below.
    2. If the participation of Toronto Players in the Pension Plan would, at any time, result in the Pension Plan becoming subject to Canadian provincial pension legislation and/or Canadian federal income tax laws (to the extent that the application of such laws would result in adverse tax consequences to the Pension Plan, the NBA Teams or the Toronto Players) or result in the Toronto Plan’s failure, at any future time, to either be qualified under the Code or registered under Canadian provincial pension legislation or Canadian federal tax laws, then any obligation to establish, maintain or make contributions to the Pension Plan in respect of Toronto Players and the Toronto Plan pursuant to this Agreement or pursuant to any prior collective bargaining agreement shall terminate; provided, however, that any such termination shall not impair the legally binding effect of any other provision of this Agreement or the legally binding effect (if any) of any other provision of any prior collective bargaining agreement, nor shall it create any right: (i) to unilaterally implement during the term of this Agreement any terms concerning the provision of pension benefits to the players; (ii) to lockout; or (iii) to strike. In the event of such termination, the NBA and Players Association agree to bargain in good faith with respect to an alternative arrangement to be provided by Toronto to the Toronto Players. Any such alternative arrangement shall be at an annual cost (as determined on an after-tax basis) to Toronto substantially equal to but no greater than the annual accrual cost that Toronto would have incurred under the Pension Plan and the Toronto Plan. If despite good faith negotiations, the NBA and the Players Association fail to agree with respect to an alternative arrangement as described above, such failure to agree shall not create any right: (A) to unilaterally implement during the term of this Agreement any terms concerning the provision of pension benefits to the players; (B) to lockout; or (C) to strike.
  5. Pension Plan Tax-Qualification Status. Notwithstanding anything else in this Agreement: (1) if any change or amendment made to the Code, ERISA, or other applicable law, or to any regulations (whether final, temporary or proposed) or rulings issued thereunder; (2) if any interpretation, application or enforcement (or any proposed interpretation, application or enforcement), by a court of competent jurisdiction in the United States or by the IRS, of the Code, ERISA, or other applicable law, or any regulations or rulings issued thereunder; (3) if any regulations (whether final, temporary or proposed) or rulings issued by the IRS under the Code or ERISA; or (4) if any provisions of this Agreement, including, without limitation, any of the amendments or benefit increases to be provided under the Pension Plan pursuant to this Section 1, would result in the Pension Plan no longer being a tax-qualified plan under Section 401(a) of the Code, or would require NBA Teams to incur costs over and above any costs required to be incurred to implement the provisions of this Agreement or any prior collective bargaining agreement in order for the Pension Plan to maintain its tax-qualified status under Section 401(a) of the Code (but only to the extent that such additional costs are incurred in connection with the provision of pension benefits to their non-player employees or to non-player employees of affiliates (within the meaning of Sections 414(b), (c) or (m) of the Code) of such Teams), then any obligation to continue to provide for the accrual of additional benefits under the Pension Plan pursuant to this Agreement or pursuant to any prior collective bargaining agreement shall terminate; provided, however, that any such termination shall not impair the legally binding effect of any other provision of this Agreement or the legally binding effect (if any) of any other provision of any prior collective bargaining agreement, nor shall it create any right: (i) to unilaterally implement during the term of this Agreement any terms concerning the provision of pension benefits to the players; (ii) to lockout; or (iii) to strike. In the event of such termination, the NBA and Players Association agree to bargain in good faith with respect to an alternative arrangement to be provided by the NBA Teams to the players. The costs of any such alternative arrangement shall be at an annual cost (as determined on an after-tax basis) to the NBA Teams substantially equal to but no greater than the annual accrual cost that such Teams would have incurred under the Pension Plan to fund the benefit described in this Section 1, commencing on the date of termination. If despite good faith negotiations, the NBA and the Players Association fail to agree with respect to an alternative arrangement as described above, such failure to agree shall not create any right: (A) to unilaterally implement during the term of this Agreement any terms concerning the provision of pension benefits to the players; (B) to lockout; or (C) to strike.
  6. Amounts to be Applied Against New Benefit Amount. The following amounts shall be applied against the New Benefit Amount provided for by Section 8 below:
    1. $4 million to be used in respect of the cost of the benefit increases described in Section 1(a)(2);
    2. Fifty percent (50%) of the increase in the amount of the actuarially-determined annual contributions to be made for a Plan Year to the Pension Plan to fund the Normal Retirement Benefits for Pre-1965 Players described in Section 20.3(a)(v) of the Pension Plan over the amount of the actuarially determined annual contributions that would be required to be made for that Plan Year to the Pension Plan in order to fund the Normal Retirement Benefits for Pre-1965 Players described in Section 20.3(a)(iv) of the Pension Plan had Section 20.3(a)(v) of the Pension Plan never been in effect (the “Pre-1965 Player Cost Increase”);
    3. Fifty percent (50%) of the costs incurred for a Plan Year in order to provide the excess portion of the benefit amount described in Pension Plan Section 20.3(a)(v) under the Pre-1965 Players Excess Benefit Plan over the costs that would be incurred for that Plan Year in order to provide for the excess portion of the benefit amount described in Pension Plan Section 20.3(a)(iv) under the Pre-1965 Players Excess Benefit Plan had Section 20.3(a)(v) of the Pension Plan never been in effect (the “Pre-1965 Player Excess Benefit Cost Increase”);
    4. Fifty percent (50%) of the amount of the actuarially-determined annual contributions to be made for a Plan Year to the Pension Plan to fund the Retirement Benefits for Pre-1965 Retirees described in Section 21.3(a) of the Pension Plan (the “Pre-1965 Retiree Cost Increase”); and
    5. One hundred percent (100%) of the costs, including the cost of professional fees (e.g., attorneys, accountants, actuaries and consultants) (“Professional Fees”), incurred in connection with the determination and implementation of any alternative benefits pursuant to Sections 1(d) and/or 1(e). For purposes of this Section 1(f), in determining the Pre-1965 Player Cost Increase, the Pre-1965 Player Excess Benefit Cost Increase, and the Pre- 1965 Retiree Cost Increase for a Plan Year, the annual contributions relating to such cost increases (and in the case of the Pre-1965 Player Excess Benefit Cost Increase, the costs incurred relating to such cost increase) shall be determined based on the applicable laws in effect for that Plan Year, taking into account (i) any new law or change or amendment made to ERISA, the Code and/or other applicable law, or to any regulations (whether final, temporary or proposed), rulings or formal guidance issued thereunder and (ii) any regulations (whether final, temporary or proposed), rulings or formal guidance issued under ERISA, the Code or other applicable law.
  7. Actuarial Determinations. All actuarial determinations that need to be made in connection with, or under, the Pension Plan, including, without limitation, those necessary to implement this Section 1 and Sections 8 and 10 below, shall be made by the actuaries of the Pension Plan. Any such actuarial determinations shall be binding and conclusive.

4.2 Player 401(k) Benefits.

To the extent permitted by the Code and applicable law, the NBA shall provide the following 401(k) benefits to NBA players and former NBA players in accordance with and subject to the terms and conditions of the NBA-NBPA 401(k) Savings Plan as restated effective November 1, 2014, and as amended from time to time and to be modified as set forth herein (the “401(k) Plan”); provided, however, that, the 401(k) Plan shall be amended, as of the effective date of this Agreement, to change the plan name to the “National Basketball Association Players’ 401(k) Savings Plan.” (All capitalized terms used in this Section 2 not otherwise defined in this Agreement shall have the meanings set forth in the 401(k) Plan and, for purposes of this Section 2, the term “Compensation” shall have the meaning set forth in the 401(k) Plan and not Article I or Exhibit A of this Agreement.)

  1. Current Benefits. For each Plan Year commencing during the term of this Agreement, the 401(k) Plan shall continue to provide for: (1) Salary Deferral Contributions by players, (2) except as may be limited below, Matching Contributions (other than Two-Way Matching Contributions, as defined below) by Teams in respect of Salary Deferral Contributions for a Salary Cap Year, as requested in writing by the Players Association, and (3) After Tax Contributions by players. The request for the Matching Contributions (other than Two-Way Matching Contributions) by the Players Association for a Season shall be made in writing prior to the commencement of that Season.
  2. Two-Way Player Benefits. For each Plan Year commencing during the term of this Agreement, the 401(k) Plan shall provide the following benefits for Two-Way Players:
    1. Each Two-Way Player who is on the Active List, Inactive List or Two-Way List of any Team during a Regular Season shall be included as an Eligible Player subject to the terms and conditions of the 401(k) Plan. Unless a Two-Way Player who is an Eligible Player affirmatively elects a different Salary Deferral Contribution (including, without limitation, no Salary Deferral Contribution) for a Season, such player’s Compensation shall be automatically reduced for the payroll periods occurring between the beginning of the Regular Season in which the Two-Way Player is on a Roster and the June 30 immediately following the end of such Regular Season in substantially equal amounts which, when summed together, equal the maximum deferral amount permitted under Section 402(g) of the Code in effect for such Season. Such amounts shall be deposited to the 401(k) Plan as Salary Deferral Contributions.
    2. Except as may be limited below, each Two-Way Player who is an Eligible Player shall be entitled to receive a “Two-Way Matching Contribution” equal to the lesser of: (i) twenty-five percent (25%) of his Salary Deferral Contributions; and (ii) one percent (1%) of his Compensation; provided, however, that if the Two-Way Player is signed or converted to a Standard NBA Contract during a Salary Cap Year and meets the requirements under the 401(k) Plan to be an Eligible Player without regard to the changes to the 401(k) Plan that are contemplated by this Section 2(b), then his Two-Way Matching Contribution in respect of his Salary Deferral Contributions made during such Salary Cap Year shall not be determined pursuant to this Section 2(b) but shall instead be determined pursuant to Section 2(a) above.
    3. The benefits payable to Two-Way Players under the 401(k) Plan, including, without limitation, the Two-Way Matching Contribution, shall otherwise be subject to the terms and conditions set forth in the 401(k) Plan.
    1. Timing of Matching Contributions and Two-Way Matching Contributions. Any Matching Contributions and Two-Way Matching Contributions to be made to the 401(k) Plan in respect of each Season shall be made no later than thirty (30) days following the completion of the Audit Report for the Salary Cap Year covering such Season.
    2. Limitations on Benefits. Notwithstanding anything contained herein to the contrary:
      1. Matching Contributions, Two-Way Matching Contributions, Salary Deferral Contributions and After Tax Contributions shall at all times be subject to all applicable limitations under the Code, including, without limitation, the maximum limitation on contributions under Code Section 415, the maximum limitation on compensation under Code Section 401(a)(17), and the maximum limitation on 401(k) deferrals under Code Section 402(g).
      2. The total amount of the Salary Deferral Contributions, Matching Contributions and Two-Way Matching Contributions to be made to the 401(k) Plan shall be limited to an amount that, taking into account only Compensation paid to current players by the Teams, would result in all of such Salary Deferral Contributions, Matching Contributions and Two-Way Matching Contributions being fully deductible under the Code (and, where applicable, Canadian income tax laws) when paid to the 401(k) Plan. If, for any reason, all or a portion of the Salary Deferral Contributions, Matching Contributions and/or Two-Way Matching Contributions to be made to the 401(k) Plan will not, when paid to the 401(k) Plan, be fully deductible under the Code, the NBA and the Players Association agree that the contributions shall be reduced to result in all such contributions being fully deductible when paid.
  3. Players Employed by Toronto. The terms of the 401(k) Plan shall continue to permit participation by Toronto Players on a tax-effective basis under Canadian income tax laws; provided, however, that a player shall not be eligible to participate in the 401(k) Plan for the period of time during which the player is a Canadian Resident but shall instead be eligible to receive a cash payment as described in Section 7 below. If the NBA and the Players Association should determine that the 401(k) Plan cannot continue to be provided to Toronto Players on a tax-effective basis under Canadian federal income tax laws, the NBA and Players Association agree to bargain in good faith with respect to an alternative arrangement to be provided by Toronto to the Toronto Players. The costs of any such alternative arrangement shall be at an annual cost (as determined on an after-tax basis) to Toronto substantially equal to but no greater than the annual cost that Toronto would have incurred under the 401(k) Plan with respect to the Matching Contributions for the Toronto Players. The cost to Toronto of providing for any such alternative arrangement: (1) shall be applied against the New Benefit Amount provided for by Section 8 below, and (2) shall be limited to the portion of the New Benefit Amount, if any, that is available for this purpose pursuant to Section 8(b)(2) below. If despite good faith negotiations, the NBA and the Players Association fail to agree with respect to an alternative arrangement as described above, such failure to agree shall not create any right: (i) to unilaterally implement during the term of this Agreement any terms concerning the provision of 401(k) benefits to the players; (ii) to lockout; or (iii) to strike.
  4. 401(k) Plan Tax-Qualification Status. Notwithstanding anything else in this Agreement: (1) if any change or amendment made to the Code, ERISA, or other applicable law, or to any regulations (whether final, temporary or proposed) or rulings issued thereunder; (2) if any interpretation, application or enforcement (or any proposed interpretation, application or enforcement), by a court of competent jurisdiction in the United States or by the IRS, of the Code, ERISA, or other applicable law, or any regulations or rulings issued thereunder; (3) if any regulations (whether final, temporary or proposed) or rulings issued by the IRS under the Code or ERISA; or (4) if any provisions of this Agreement would result in the 401(k) Plan no longer being a tax-qualified plan under Section 401(a) of the Code, or would require NBA Teams to incur costs over and above any costs required to be incurred to implement the provisions of this Agreement or any prior collective bargaining agreement in order for the 401(k) Plan to maintain its tax-qualified status under Section 401(a) of the Code (but only to the extent that such additional costs are incurred in connection with the provision of benefits to their non-player employees or to non-player employees of affiliates (within the meaning of Sections 414(b), (c) or (m) of the Code) of such Teams), then any obligation to maintain or make contributions to the 401(k) Plan pursuant to this Agreement or pursuant to any prior collective bargaining agreement shall terminate; provided, however, that any such termination shall not impair the legally binding effect of any other provision of this Agreement or the legally binding effect (if any) of any other provision of any prior collective bargaining agreement, nor shall it create any right: (i) to unilaterally implement during the term of this Agreement any terms concerning the provision of 401(k) benefits to the players; (ii) to lockout; or (iii) to strike. In the event of such termination, the NBA and Players Association agree to bargain in good faith with respect to an alternative arrangement to be provided by the NBA Teams to the players. Any such alternative arrangement shall be at an annual cost (as determined on an after-tax basis) to the NBA Teams substantially equal to but no greater than the annual cost that such Teams would have incurred under the 401(k) Plan with respect to Matching Contributions and Two-Way Matching Contributions commencing on the date of termination. The cost of any such alternative arrangement shall: (A) be applied against the New Benefit Amount provided by Section 8 below, and (B) be limited to the portion of the New Benefit Amount, if any, that is available for this purpose pursuant to Section 8(b)(2) below. If despite good faith negotiations, the NBA and the Players Association fail to agree with respect to an alternative arrangement as described above, such failure to agree shall not create any right: (x) to unilaterally implement during the term of this Agreement any terms concerning the provision of 401(k) benefits to the players; (y) to lockout; or (z) to strike.
  5. Amounts to be Applied Against New Benefit Amount. The following amounts shall be applied against the New Benefit Amount provided for by Section 8 below:
    1. The cost of funding Matching Contributions shall: (i) be applied against the New Benefit Amount provided for by Section 8 below, and (ii) be limited to the portion of the New Benefit Amount, if any, that is available for this purpose pursuant to Section 8(b)(2) below.
    2. All costs incurred in connection with the operation and administration of the 401(k) Plan (and in connection with the determination and implementation of any alternative arrangement pursuant to Section 2(e) and/or Section 2(f)), including, without limitation, the cost of Professional Fees and the 401(k) Plan’s recordkeeper’s fixed fee for recordkeeping and other administrative services provided to the 401(k) Plan, shall be (i) paid by the Teams; (ii) applied against the New Benefit Amount provided for in Section 8 below; and (iii) limited to the portion of the New Benefit Amount, if any, that is available for this purpose pursuant to Section 8(b)(2) below. Notwithstanding the previous sentence, this Section 2(g)(2) shall not apply to: (A) any costs or fees attributable to a participant-initiated transaction under the 401(k) Plan or (B) any investment fees or expenses charged directly against the return on any investment options under the 401(k) Plan.

4.3 Player Health and Welfare Benefits.

Except as set forth below in this Section 3, as of the effective date of this Agreement, and continuing until the expiration or termination of this Agreement, to the extent permitted by applicable law, the NBA shall provide the following health and welfare benefits to NBA players and former NBA players in accordance with and subject to the terms and conditions of the NBPA-NBA Supplemental Benefit Plan as restated July 1, 2016, and as amended from time to time and to be modified as set forth herein, (the “Health and Welfare Benefit Plan”) and the Agreement and Declaration of Trust of the NBPA-NBA Supplemental Benefit Plan, established July 22, 2004 (the “Health and Welfare Benefit Trust Agreement” and the trust, the “Health and Welfare Benefit Trust”); provided, however, that the Health and Welfare Benefit Plan and the Health and Welfare Benefit Trust Agreement shall be amended, as of the effective date of this Agreement, to change the plan name to the “NBA Players’ Health and Welfare Benefit Plan” and to change the trust name to the “NBA Players’ Health and Welfare Benefit Trust.” (All capitalized terms used in this Section 3 not otherwise defined in this Agreement shall have the meanings set forth in the Health and Welfare Benefit Plan.)

  1. Benefits. The Health and Welfare Benefit Plan shall be amended to include the following benefits consistent with Sections 3(a)(1) through 3(a)(9) below, and the benefits described in those Sections shall be operated and administered through the Health and Welfare Benefit Trust.
    1. A health reimbursement arrangement (the “HRA Benefit”) for players who played in the NBA during and/or after the 2000-01 Season will continue to be operated in accordance with the Health and Welfare Benefit Plan, which arrangement shall be administered and operated in compliance with IRS and U.S. Department of Labor rules applicable to such arrangements.
      1. An amount to fund an HRA Benefit for each eligible player in respect of each Salary Cap Year that, except as may be limited by Section 3(e), shall equal the lesser of: (A) $30,000 and (B) the difference between $150,000 and the sum of all contributions previously made to fund an HRA Benefit for such player in respect of prior Salary Cap Years (including, for clarity, contributions made prior to the 2017-18 Salary Cap Year) or, if such difference is $0 or a negative number, then $0; provided, however, that the Health and Welfare Benefit Plan shall be amended to provide that amounts to fund HRA Benefits for each Salary Cap Year shall be provided to eligible players by first re-allocating from amounts forfeited under the Health and Welfare Benefit Plan to the Individual Accounts of each such eligible player or, if such amounts are insufficient for this purpose, then as described in Section 3(e)(1) below.
      2. Except as may otherwise be agreed to by the NBA and the Players Association, any contributions to fund the HRA Benefit in respect of each Salary Cap Year shall be made no later than ninety (90) days following the completion of the Audit Report for such Salary Cap Year.
    2. The following insurance benefits provided to players:
      1. Life insurance and accidental death and dismemberment benefits, which, as of the date of this Agreement, are being provided through the Metropolitan Life Insurance Company Policy No. 0122986; provided, however, that life insurance and accidental death and dismemberment benefits for Two-Way Players shall be provided through a policy that is substantially similar to the life insurance and accidental death and dismemberment policy covering NBADL players.
      2. For players other than Two-Way Players, disability insurance benefits, which, as of the date of this Agreement, are being provided through the Houston Casualty Company Policy No. 16/7007220.
      3. Except as otherwise provided in Section 3(a)(2)(iv), medical, dental and prescription drug insurance benefits which, as of the date of this Agreement, are being provided through the CIGNA HealthCare Policy No. 3211244; provided, however, that for Two-Way Players, medical and prescription drug insurance benefits shall be provided through a policy that is substantially similar to the Standard policy covering NBADL players with regard to coverage levels, scope of in-network and out-of-network coverage, deductibles, co-insurance, co-pays, out-of-pocket maximums and the employee share of premium contributions (which share shall be calculated as described below), and dental insurance benefits shall be provided through a policy that is substantially similar to the DPPO policy covering NBADL players with regard to coverage levels, scope of in-network and out-of-network coverage, deductibles, co-insurance, co-pays, out-of-pocket maximums and the employee share of premium contributions (which share shall be calculated as described below). For purposes of this Section 3(a)(2)(iii) and Section 10(b)(6) below, the employee share of premium contributions for each coverage level under the relevant Two-Way Players’ insurance policy shall be calculated by multiplying: (A) the total monthly premium payment for a Two-Way Player who elected that coverage level under the relevant Two-Way Players’ insurance policy that Season; by (B) a fraction, expressed as a percentage of premium payment, the numerator of which is the portion of the total monthly premium payment contributed by an NBADL player for the same coverage level under the corresponding insurance policy covering NBADL players during the NBADL regular season occurring within the Salary Cap Year immediately preceding that Season, and the denominator of which is the total monthly premium payment for that NBADL player for the same coverage level under the corresponding insurance policy covering NBADL players during the NBADL regular season occurring within the Salary Cap Year immediately preceding that Season.
      4. For players other than Two-Way Players who are “qualified expatriates” under the Expatriate Health Coverage Clarification Act of 2014, expatriate medical and prescription drug insurance benefits.
      5. Vision insurance benefits which, as of the date of this Agreement, are being provided through the EyeMed Vision Care Policy No. 9886987; provided, however, that Two-Way Players shall be provided vision benefits that are substantially similar to the vision benefits being provided to NBADL players as of the effective date of this Agreement.
    3. The Health and Welfare Benefit Plan shall be amended to provide that the period of coverage for the insurance benefits described in Section 3(a)(2)(iii) and 3(a)(2)(iv) shall extend: (a) for players (other than Veteran Free Agents and Two-Way Players), until the last day of the month during which the player ceases to be on either the Active List or Inactive List; (b) for Veteran Free Agents, until the August 31 following the last Season of the player’s Contract; and (c) for Two-Way Players, from the first day of the Season until the earlier of (1) the last day of the month during which the player ceases to be on the Active List, Inactive List, or Two-Way List and (2) the last day of the month during which the Season ends.
    4. All of the benefits provided for in Section 3(a)(2) are subject to their permissibility and availability under applicable law.
    5. The Board of Trustees of the Health and Welfare Benefit Trust (the “Health and Welfare Trustees”) may make changes to any of the insurance programs provided under Section 3(a)(2), provided that any such change that would result in an increase in the costs or a change in the types or levels of any of the benefits, or that would change any such program from an insured program to a self-insured program or vice versa, must be mutually agreed to in writing by the NBA and the Players Association.
    6. Subject to Section 3(a)(6)(i)-(ii) below, the NBA and the Players Association shall provide retiree health insurance benefits which, as of the effective date of this Agreement, are being provided through UnitedHealthcare Policy Numbers 908971, 16160, 16161 and 16162 (collectively, the “Retiree Medical Plan”).
      1. The Retiree Medical Plan will be established only for the term of this Agreement; provided, however, that the NBA and the Players Association (or, if so delegated by the NBA and the Players Association in writing, the Health and Welfare Trustees) reserve the right, by mutual written agreement, to modify, amend or terminate, in whole or in part, the Retiree Medical Plan with respect to any or all eligible retirees and their eligible dependents at any time or for any reason, and no eligible retirees or eligible dependents (or other NBA players, retired NBA players or their dependents) shall under any circumstances have any vested rights of any nature with respect to the Retiree Medical Plan or any retiree health benefit (whether or not the player or retired player, or their dependents, has participated in the Retiree Medical Plan).
      2. The NBA and the Players Association (or, if so delegated by the NBA and the Players Association in writing, the Health and Welfare Trustees) reserve the right, by mutual written agreement, to increase or otherwise change the amount of monthly premiums under the Retiree Medical Plan charged to players at any time and for any reason.
    7. Effective as of the effective date of this Agreement, the Health and Welfare Benefit Plan shall be amended to provide for reimbursement of eligible tuition and career transition expenses, subject to the following reimbursement limits: (i) for an eligible player, the lesser of (A) a maximum amount of $33,654 for each Salary Cap Year and (B) a maximum aggregate amount of $101,000 over all Salary Cap Years; and (ii) for all eligible players, amounts not to exceed a maximum aggregate amount of $4,276,185 for each Salary Cap Year. On a quarterly basis, the NBA shall cause to be provided to the Health and Welfare Benefit Trust (or directly to the independent third-party administrators) contributions equal to the aggregate amount of reimbursable eligible tuition and career transition expenses, if any, approved in the prior quarter.
    8. The Health and Welfare Benefit Plan shall be amended to provide that a player shall not be considered to be on an NBA Team Roster for a Regular Season solely because he was under a 10-Day Contract or Two-Way Contract as of February 2nd of such Regular Season.
    9. Following the execution of this Agreement, the NBA and the Players Association shall establish a mental wellness program for current players; provided, that (i) the terms of, and the benefits to be provided under, the mental wellness program shall be negotiated in good faith by the NBA and the Players Association and (ii) if despite good faith negotiations, the NBA and the Players Association fail to agree with respect to the terms of, and the benefits to be provided under, the mental wellness program, such failure to agree shall not create any right (A) to unilaterally implement during the term of this Agreement any terms concerning the provision of mental wellness benefits to the players; (B) to lockout; or (C) to strike. In addition, the NBA and the Players Association agree to meet and confer to discuss the establishment of a long-term care insurance benefit; provided, however, that, neither party shall have any obligation to establish a long-term care insurance benefit. The specific benefits to be provided under the mental wellness program and any long-term care insurance benefit shall be (x) subject to the agreement of the NBA and the Players Association and (y) governed by a definitive written amendment to the Health and Welfare Benefit Plan implementing such program or benefit.
  2. Administration.
    1. The Health and Welfare Benefit Trust shall continue to be jointly operated and administered by the NBA and Players Association in accordance with Section 302(c)(5) of the Labor Management Relations Act of 1947, as amended, and the provisions of the Health and Welfare Benefit Trust Agreement and the Health and Welfare Benefit Plan, as to be amended pursuant to this Agreement. It is intended by the NBA and Players Association that the Health and Welfare Benefit Plan and Health and Welfare Benefit Trust shall continue to constitute a collectively-bargained voluntary employees’ beneficiary association (“VEBA”) that qualifies as a tax exempt organization under the provisions of Section 501(c)(9) of the Code.
    2. The Health and Welfare Benefit Trust Agreement shall continue to provide that the Health and Welfare Benefit Trust and Health and Welfare Benefit Plan will be administered by the Health and Welfare Trustees. The daily operations of the Health and Welfare Benefit Plan and each of the benefits provided thereunder shall be delegated as follows: (i) in the case of the benefits set forth in Section 3(a)(1) and 3(a)(7), to one or more independent third-party administrators; (ii) in the case of the benefits set forth in Section 3(a)(2), to insurers and/or one or more independent third-party administrators; and (iii) in the case of the benefits set forth in Section 3(a)(6), to an insurer and one or more independent third-party administrators. Each such insurer and independent third-party administrator referenced in this Section 3(b)(2): (A) shall be selected by the Health and Welfare Trustees in their sole discretion; and (B) shall be required, in the exercise of its responsibilities, to comply with ERISA and all other applicable laws and to act in a manner that is consistent with the provisions of the Health and Welfare Benefit Trust and the Health and Welfare Benefit Plan.
    3. For the avoidance of doubt, nothing in this Section 3(b) shall prevent the Education Trust (defined below) from engaging or hiring an academic advisor or career counselor to assist with player outreach and similar functions with respect to the tuition reimbursement and career transition program set forth in Section 3(a)(7).
  3. Players Employed by Toronto. The terms of the Health and Welfare Benefit Plan shall permit participation by Toronto Players on the same basis as players who are not Toronto Players; provided, however, that a player shall not be eligible to participate in the HRA Benefit for the period of time during which the player is a Canadian Resident but shall instead be eligible to receive a cash payment as described in Section 7 below. If the NBA and the Players Association determine that the Health and Welfare Benefit Plan cannot provide one or more of the benefits described in Section 3(a) to Toronto Players (1) that are substantially equivalent to the benefits provided to players employed by Teams located in the United States or (2) on a tax-effective basis under Canadian federal income tax laws, the NBA and Players Association agree to bargain in good faith with respect to an alternative arrangement to be provided by Toronto to the Toronto Players. The annual cost incurred by the Teams in connection with any such alternative arrangement (as determined on an after-tax basis) shall not exceed the annual cost that such Teams would have incurred to fund the applicable benefit(s) described in Section 3(a) for such Toronto Player. The cost to Toronto of funding an alternative arrangement to the HRA Benefit shall be applied against the New Benefit Amount provided for by Section 8 below, and shall be limited to the portion of the New Benefit Amount, if any, that is available for this purpose pursuant to Section 8(b)(7) below. The cost to Toronto of funding any alternative arrangement(s) to any of the benefit(s) described in Section 3(a) shall be subject to the limitations set forth in this Agreement. If despite good faith negotiations, the NBA and the Players Association fail to agree with respect to any alternative arrangement(s) as described above, such failure to agree shall not create any right (i) to unilaterally implement during the term of this Agreement any terms concerning the provision of benefits provided or to be provided by the Health and Welfare Benefit Plan; (ii) to lockout; or (iii) to strike.
  4. Deductibility of Contributions/Regulatory Changes.
    1. The Health and Welfare Benefit Trust and the Health and Welfare Benefit Plan shall be operated and administered in a manner that will result in all contributions by the Teams being fully deductible under the Code (and, where applicable, Canadian income tax laws) when paid to the Health and Welfare Benefit Trust (or directly to an insurance carrier for a benefit provided under the Health and Welfare Benefit Plan). If any Team is disallowed a deduction (in whole or in part) for such contributions, and unless the NBA determines otherwise, the obligation to provide the benefit (or portion of the benefit under the Health and Welfare Benefit Plan to which the contribution relates) and to make further contributions to provide the benefit (or portion of the benefit under the Health and Welfare Benefit Plan to which the contribution relates) shall immediately terminate and the provisions of Section 3(d)(3) shall apply.
    2. In the event that any benefit under the Health and Welfare Benefit Plan is no longer permissible or available due to applicable laws (a “Regulatory Change”), the obligation to provide the benefit shall immediately terminate and the provisions of Section 3(d)(3) shall apply.
    3. Any termination of the Health and Welfare Benefit Plan or a benefit under such plan pursuant to Sections 3(d)(1)-(2) shall not impair the legally binding effect of any other provision of this Agreement, or the legally binding effect (if any) of any other provision of any prior collective bargaining agreement, nor shall it create any right (i) to unilaterally implement, during the term of this Agreement, any terms concerning the provision of the Health and Welfare Benefit Plan (or the applicable benefit provided or to be provided); (ii) to lockout; or (iii) to strike. In the event of any termination pursuant to Sections 3(d)(1)-(2) of the Health and Welfare Benefit Plan or a benefit under such plan, the NBA and Players Association agree to bargain in good faith with respect to alternative arrangement(s) to be provided by the NBA Teams to the players; provided, however, that any such alternative arrangement(s) shall be subject to the terms and conditions set forth in this Agreement, including, without limitation, with respect to an alternative arrangement to the Retiree Medical Plan, the terms and conditions set forth in Section 3(a)(6). The annual cost incurred by the NBA Teams in connection with any such alternative arrangement(s) (as determined on an after-tax basis) shall not exceed the annual cost that such Teams would have incurred in providing the relevant benefit(s) under the Health and Welfare Benefit Plan commencing on the date of termination. Any such alternative arrangement(s) shall, to the extent permitted by applicable law and the Health and Welfare Benefit Plan, be funded by such monies as may then remain in the Health and Welfare Benefit Trust and, if the monies remaining in the Health and Welfare Benefit Trust may not lawfully be used for, or are insufficient for, such purpose, such alternative arrangement(s) shall be funded by the NBA Teams. Any such alternative arrangement(s) shall be operated and administered in a manner that will result in all contributions by the Teams being fully deductible under the Code (and, where applicable, Canadian income tax laws) when paid. If funded by the Teams (and not funded out of monies remaining in the Health and Welfare Benefit Trust), the costs of funding an alternative arrangement to the HRA Benefit shall be applied against the New Benefit Amount provided for by Section 8 below, and shall be limited to the portion of the New Benefit Amount, if any, that is available for this purpose pursuant to Section 8(b)(7) below. The costs of funding any alternative arrangement(s) shall be subject to the limitations set forth in this Agreement. If despite good faith negotiations, the NBA and the Players Association fail to agree with respect to any alternative arrangement(s) as described above, such failure to agree shall not create any right: (x) to unilaterally implement, during the term of this Agreement, any terms concerning the provision of benefits provided or to be provided by the Health and Welfare Benefit Plan; (y) to lockout; or (z) to strike.
  5. Amounts to be Applied Against New Benefit Amount. The following amounts shall be applied against the New Benefit Amount provided for by Section 8 below:
    1. All costs of the HRA Benefit that are paid by the Teams (and not paid out of the amounts forfeited under the Health and Welfare Benefit Plan) shall be (i) applied against the New Benefit Amount provided for by Section 8 below, and (ii) limited to the portion of the New Benefit Amount, if any, that is available for this purpose pursuant to Section 8(b)(7) below. For the avoidance of doubt, to the extent that costs of the HRA Benefit in a Salary Cap Year are funded through amounts forfeited under the Health and Welfare Benefit Plan that were applied against the New Benefit Amount and included in the calculation of Benefits in a prior Salary Cap Year (or through earnings on such forfeited amounts), (A) such costs shall not be applied against the New Benefit Amount; and (B) such costs shall be excluded for purposes of all calculations called for under this Agreement of, or relating to, Benefits (including, without limitation, for purposes of: (1) preparing the Audit Report, Interim Audit Report, or Interim Escrow Audit Report, and (2) calculating Total Benefits, Total Salaries and Benefits, and Projected Benefits).
    2. All costs, including, without limitation, the cost of Professional Fees, incurred in connection with (i) the operation and administration of the Health and Welfare Benefit Plan Trust and the Health and Welfare Benefit Plan and (ii) the determination and implementation of any alternative arrangement pursuant to Section 3(d)(3) shall be (if not funded out of the Health and Welfare Benefit Plan Trust) (A) paid by the Teams, (B) applied against the New Benefit Amount provided for by Section 8 below, and (C) limited to the portion of the New Benefit Amount, if any, that is available for this purpose pursuant to Section 8(b)(7) below. Notwithstanding the preceding sentence, this Section 3(e)(2) shall not apply to any costs or fees attributable to investment management fees in connection with the investment of Health and Welfare Benefit Trust assets. Such costs and fees shall: (x) be paid out of the assets of the Health and Welfare Benefit Trust; (y) not be applied against the New Benefit Amount; and (z) be excluded for purposes of all calculations called for under this Agreement of, or relating to, Benefits (including, without limitation, for purposes of: (1) preparing the Audit Report, Interim Audit Report, or Interim Escrow Audit Report, and (2) calculating Total Benefits, Total Salaries and Benefits, and Projected Benefits).

4.4 The Post-Career Income Plan.

To the extent permitted by the Code and applicable law, the NBA shall provide the following post-career income benefits to NBA players and former NBA players in accordance with and subject to the terms and conditions of the National Basketball Association Players’ Qualified Post-Career Income Plan, as restated effective November 1, 2012, and as amended from time to time (the “Qualified Plan”) and the National Basketball Association Players’ Non-Qualified Post-Career Income Plan, as restated effective February 15, 2015, and as amended from time to time (the “Non-Qualified Plan,” and, when referenced collectively with the Qualified Plan, the “Post-Career Income Plan”). (All capitalized terms used in this Section 4 not otherwise defined in this Agreement shall have the meanings set forth in the Post-Career Income Plan.)

  1. Current Benefits.
    1. Effective for the Contribution Year (defined below) commencing November 1, 2017, and for each subsequent Contribution Year during the term of this Agreement, the Post-Career Income Plan shall continue to provide for (i) a Team contribution to the Post-Career Income Plan for Eligible Players to be used to purchase Post-Career Annuities (the “Team Contribution”) and (ii) elective Player Contributions made by Qualifying Players to the Non-Qualified Plan to be used to purchase Post-Career Annuities on such players’ behalf; provided, however, that the Post-Career Income Plan shall be amended, effective as of the 2017-18 Contribution Year, to provide that that a player shall not be considered to be on a Roster for a Contribution Year solely because he was under a 10-Day Contract or Two-Way Contract as of February 2nd of the Regular Season ending within such Contribution Year. The Team Contribution for each Eligible Player for each Contribution Year shall equal (A) the Additional Benefit Amount (defined below) divided by the total number of Eligible Players for such Contribution Year (including, for this purpose only, any Canadian Resident who but for the fact that he is a Canadian Resident would otherwise be an Eligible Player) (such quotient, an Eligible Player’s “Allocated Share”), less (B) tax withholding (solely with respect to contributions made to the Non-Qualified Plan) in the manner described in Section 3.3 of the Non-Qualified Plan (“Tax Withholding”). For each Contribution Year, a portion of a player’s Allocated Share shall be contributed to the Qualified Plan on behalf of such player pursuant to the terms and conditions described in the Qualified Plan, and a portion to the Non-Qualified Plan pursuant to the terms and conditions described in the Non-Qualified Plan. For purposes of this Section 4, a “Contribution Year” means each November 1 through October 31 in respect of which a Team Funding Pool (defined below) is provided under this Section 4.
    2. Notwithstanding anything in this Section 4(a) to the contrary, and subject to the requirements of the Code and IRS rules and regulations, if the Board of Trustees of the Post-Career Income Plan (the “PCIP Trustees”) determines, after Post-Career Annuities have been purchased for Eligible Players for a Contribution Year, that a present or former player should have received an Allocated Share for such Contribution Year but did not receive an Allocated Share, such present or former player shall be entitled to an Allocated Share equal to the amount of the Allocated Share made to the other Eligible Players for such Contribution Year, which shall be used to purchase one or more Post-Career Annuities in the same manner and on the same terms as the other Eligible Players for such Contribution Year. Unless practicable and otherwise agreed to by the PCIP Trustees, the cost of such Allocated Share shall not require a retroactive reduction in the Allocated Share and Post-Career Annuities of the other Eligible Players for such Contribution Year but rather shall be paid from the Additional Benefit Amount for the next Season (or, to the extent the Additional Benefit Amount for the next Season is insufficient, future Seasons). In addition, the cost of any additional fees or expenses charged by the Insurer for the purchase of such Post-Career Annuity (or for the purchase of any other Post-Career Annuity(ies) under the Plan on a retroactive basis) shall also be paid from the Additional Benefit Amount for the next Season (or, to the extent the Additional Benefit Amount for the next Season is insufficient, future Seasons).
  2. Deductibility of Team Contributions/Regulatory Changes.
    1. The Post-Career Income Plan shall be structured and maintained in a manner that will result in the Team Funding Pool being fully deductible under the Code (and, where applicable, Canadian laws) when used toward Team Contributions contributed to the Post-Career Income Plan. In the event that a Team is disallowed a deduction (in whole or in part) for its portion of the Team Funding Pool, then the Team shall be returned such disallowed deduction from the Post-Career Income Plan; provided, however, that, if such portion may not be returned to the Team under the terms of the Plan or the applicable Group Annuity Contract or applicable law, then such Team shall instead be reimbursed for the lost tax benefit resulting from the disallowance of the deduction from the Additional Benefit Amount for the next Season (or, to the extent the Additional Benefit Amount for the next Season is insufficient, future Seasons) following the date such Team submits satisfactory documentation of the disallowance to the PCIP Trustees.
    2. Notwithstanding anything else in this Agreement, if any event or occurrence, including, without limitation, (i) any change oramendment made to the Code, ERISA, or other applicable law, or to any regulations (whether final, temporary or proposed regulations), or rulings or formal guidance issued thereunder, (ii) any interpretation, application or enforcement (or any proposed interpretation, application or enforcement), by a court of competent jurisdiction in the United States or by the IRS, of the Code, ERISA, or other applicable law, or any regulations or rulings issued thereunder, (iii) any regulations (whether final, temporary or proposed regulations), or rulings or formal guidance issued by the IRS under the Code or ERISA or (iv) any provisions of this Agreement, including, without limitation, the provisions of this Section 4(b), would result in the Teams being disallowed a deduction (in whole or in part) for contributions made to the Post-Career Income Plan, then any obligation to maintain the Post-Career Income Plan pursuant to this Agreement shall, at the option of the NBA, terminate; provided, however, that any such termination shall not impair the legally binding effect of any other provision of this Agreement or the legally binding effect (if any) of any other provision of any prior collective bargaining agreement, nor shall it create any right (A) to unilaterally implement during the term of this Agreement any terms concerning the provision of post-employment benefits to the players; (B) to lockout; or (C) to strike.
    3. Notwithstanding anything else in this Agreement, if any event or occurrence, including, without limitation, (i) any change or amendment made to the Code, ERISA, or other applicable law, to any regulations (whether final, temporary or proposed regulations), or rulings or formal guidance issued thereunder, (ii) any interpretation, application or enforcement (or any proposed interpretation, application or enforcement), by a court of competent jurisdiction in the United States or by the IRS, of the Code, ERISA, or other applicable law, or any regulations or rulings issued thereunder, (iii) any regulations (whether final, temporary or proposed regulations), or rulings or formal guidance issued by the IRS under the Code or ERISA or (iv) any provisions of this Agreement, including, without limitation, the provisions of this Section 4, would result in the Qualified Plan no longer being a tax-qualified plan under Section 401(a) of the Code or would require NBA Teams to incur costs over and above any costs required to be incurred to implement the Qualified Plan in order to maintain its tax-qualified status under Section 401(a) of the Code (but only to the extent that such additional costs are incurred in connection with the provision of benefits to their non-player employees or to non-player employees of affiliates (within the meaning of Sections 414(b), (c) or (m) of the Code) of such Teams), then any obligation to maintain and/or make contributions in respect of the Qualified Plan pursuant to this Agreement shall terminate; provided, however, that any such termination shall not impair the legally binding effect of any other provision of this Agreement or the legally binding effect (if any) of any other provision of any prior collective bargaining agreement, nor shall it create any right (A) to unilaterally implement during the term of this Agreement any terms concerning the provision of post-employment benefits to the players; (B) to lockout; or (C) to strike.
    4. If the Taxable Allocated Share attributable to Eligible Players would be subject to a federal income tax rate higher than the rate that would apply if the Taxable Allocated Share were paid as Base Compensation, then any obligation to maintain the Post-Career Income Plan pursuant to this Agreement shall, at the option of the Players Association, terminate; provided, however, that any such termination shall not impair the legally binding effect of any other provision of this Agreement or the legally binding effect (if any) of any other provision of any prior collective bargaining agreement, nor shall it create any right (i) to unilaterally implement during the term of this Agreement any terms concerning the provision of post-employment benefits to the players; (ii) to lockout; or (iii) to strike.
    5. In the event of a termination described in Sections 4(b)(2)-(4), the NBA and Players Association agree to bargain in good faith with respect to an alternative arrangement to be provided by the NBA Teams to the players. The annual cost to the Teams of any such alternative arrangement (as determined on an after-tax basis) shall be substantially equal to but no greater than the annual cost that such Teams would have incurred under the Post-Career Income Plan on the date of termination. The cost of funding of any such alternative arrangement shall be as set forth in Section 4(d)(1). If despite good faith negotiations, the NBA and the Players Association fail to agree with respect to an alternative arrangement as described above, such failure to agree shall not create any right (i) to unilaterally implement during the term of this Agreement any terms concerning the provision of post-employment benefits to the players; (ii) to lockout; or (iii) to strike.
  3. Players Employed by Toronto. The terms of the Post-Career Income Plan shall continue to permit participation by Toronto Players on a tax-effective basis under Canadian income tax laws; provided, however, that a player shall not be eligible to participate in the Post-Career Income Plan for the period of time during which the player is a Canadian Resident but shall instead be eligible to receive a cash payment as described in Section 7 below. If the NBA and the Players Association should determine that the Post-Career Income Plan cannot continue to be provided to Toronto Players on a tax-effective basis under Canadian federal income tax laws or that either the Qualified Plan or the Non-Qualified Plan would become subject to Ontario’s Pension Benefits Act, the NBA and Players Association agree to bargain in good faith with respect to an alternative arrangement to be provided by Toronto to the Toronto Players. The cost of any such alternative arrangement to be provided in any Contribution Year shall come from such year’s Team Funding Pool and shall equal an Eligible Player’s Allocated Share for such Contribution Year as reduced by all federal, state, local, payroll or other tax obligations of any kind (including, where applicable, Canadian tax) applicable to such player as Toronto, in the exercise of its reasonable discretion, deems necessary. If despite good faith negotiations, the NBA and the Players Association fail to agree with respect to an alternative arrangement as described above, such failure to agree shall not create any right (i) to unilaterally implement during the term of this Agreement any terms concerning the provision of post-employment benefits to the players; (ii) to lockout; or (iii) to strike.
  4. Funding.
    1. For each Season, except as provided below, one percent (1%) of BRI for such Season (the “Additional Benefit Amount”) shall be used to fund the Team Funding Pool (or the alternative arrangement referenced in Section 4(b)(5) and 4(c)); provided, however, that the Additional Benefit Amount for a Season shall be subject to reduction or elimination pursuant to Article VII, Section 12(b)(1). In no event shall the Additional Benefit Amount be used for any purpose other than as set forth in the immediately foregoing sentence. For purposes of all calculations called for under this Agreement of, or relating to, Benefits (including, without limitation, for purposes of (i) preparing the Audit Report, Interim Audit Report, or Interim Escrow Audit Report, and (ii) calculating Total Benefits, Total Salaries and Benefits, and Projected Benefits), the amount to be included with respect to the Additional Benefit Amount shall be the full Additional Benefit Amount specified in this Section 4(d) and not the reduced Additional Benefit Amount provided for under Article VII, Section 12(b)(1).
    2. For each Contribution Year, all or a portion of the Additional Benefit Amount as determined under Section 4(d)(1) (the “Team Funding Pool”) shall be used to fund the Post-Career Income Plan in the manner described below. Each Team shall fund its portion of the Team Funding Pool for a Contribution Year in an amount equal to the Team Funding Pool for such Contribution Year divided by the number of all Teams in the NBA as of the beginning of such Contribution Year.
    3. Each Team shall pay its respective portion of the Team Funding Pool to the NBA, and the NBA, as the agent of the Teams, shall remit such pool, less Tax Withholding, into the Post-Career Income Plan each November following the Contribution Year to which it relates or, if later, within one hundred and twenty (120) days following the completion of the Audit Report covering the November 1 of such Contribution Year.
  5. Amounts to be Applied Against New Benefit Amount. All costs, including, without limitation, the cost of Professional Fees and other administrative services provided to the Post-Career Income Plan, but excluding the cost of contributions made to the Post-Career Income Plan, incurred on or after the date of this Agreement in connection with the operation and administration of the Post-Career Income Plan (or any alternative arrangement pursuant to Section 4(b)(5) and 4(c)) shall be (i) paid by the Teams; (ii) applied against the New Benefit Amount provided for in Section 8 below; and (iii) limited to the portion of the New Benefit Amount, if any, that is available for this purpose pursuant to Section 8(b)(6) below.

4.5 Labor-Management Cooperation and Education Trust.

  1. Except as set forth below in this Section 5, as of the effective date of this Agreement, and continuing until the expiration or termination of this Agreement, the National Basketball Players Association/National Basketball Association Labor-Management Cooperation and Education Trust (the “Education Trust”) shall continue to be jointly operated and administered by the NBA and the Players Association in accordance with the provisions of the Agreement and Declaration of Trust Establishing the National Basketball Players Association/National Basketball Association Labor-Management Cooperation and Education Trust (the “Education Trust Agreement”). It is intended by the NBA and the Players Association that, at all times, the Education Trust shall comply with the provisions of Section 302(c)(9) of the Labor Management Relations Act of 1947, as amended, and shall qualify as an exempt organization under the provisions of Section 501(c)(5) or 501(c)(3) of the Code.
  2. The Education Trust shall continue to be operated and administered for the purpose of establishing and providing (i) health education programs and (ii) education and career counseling programs designed to assist the NBA, NBA Teams and NBA players in solving problems of mutual concern not susceptible to resolution within the collective bargaining process and to enhance the involvement of NBA players in making decisions that affect their working lives. The NBA and the Players Association agree to meet and confer to discuss the Education Trust establishing a modified financial education program, subject to the modified financial education program being structured to qualify as a permitted activity of an exempt organization under the provisions of Section 501(c)(5) of the Code; provided, however, that neither party shall have any obligation to establish a modified financial education program. Notwithstanding the preceding sentence, in the event that an agreed-upon modified financial education program cannot be structured to qualify as a permitted activity of an exempt organization under the provisions of Section 501(c)(5) of the Code, the NBA and Players Association agree to meet and confer regarding the establishment of such program through a different vehicle than the Education Trust. The specific benefits to be provided under any financial education program shall be (A) subject to the agreement of the NBA and the Players Association and (B) governed by a definitive written arrangement implementing such program.
    1. Except as provided in Section 5(c)(2) below, the costs of funding the Education Trust and the costs attributable to the operation and administration of the Education Trust, including, without limitation, the cost of Professional Fees incurred in connection with the administration of the Education Trust, shall be (i) paid by the Teams; (ii) applied against the New Benefit Amount provided for by Section 8 below; and (iii) limited to the portion of the New Benefit Amount, if any, that is available for this purpose pursuant to Section 8(b)(5) below. Payment of the amount necessary to fund the Education Trust in respect of each Salary Cap Year shall be made within thirty (30) days following the completion of the Audit Report for such Salary Cap Year. The NBA and Players Association agree that, subject to the limitations set forth in this Section 5, the amount to be paid by the Teams to fund the education and career counseling programs to be operated and administered by the Education Trust for the 2017-18 Salary Cap Year shall be no greater than $1,507,608 and such maximum funding amount shall be increased by five percent (5%) for each subsequent Salary Cap Year.
    2. The costs of funding the health education programs to be operated and administered by the Education Trust (or any programs that, pursuant to Section 5(f) below, are substituted for the health education programs) shall be paid by the Teams. Payment of the amount necessary to fund such programs in respect of each Salary Cap Year shall be made within thirty (30) days following the completion of the Audit Report for such Salary Cap Year. The NBA and Players Association agree that, subject to the limitations set forth in this Section 5, the amount to be paid by the Teams to fund the health education programs (or any programs that, pursuant to Section 5(f) below, are substituted for the health education programs) to be operated and administered by the Education Trust for the 2017-18 Salary Cap Year shall be no greater than $469,033 and such maximum funding amount shall be increased by five percent (5%) for each subsequent Salary Cap Year.
  3. The Education Trust shall be operated and administered in a manner that will result in all contributions by the Teams being fully deductible under the Code (and, where applicable, Canadian income tax laws) when paid. If any Team is disallowed a deduction (in whole or in part) for such contributions, and unless the NBA determines otherwise, the obligation to maintain the Education Trust and to make further contributions to the Education Trust shall immediately terminate; provided, however, that any such termination shall not impair the legally binding effect of any other provision of this Agreement, and shall not create any right (1) to unilaterally implement, during the term of this Agreement, any terms concerning the provision of education programs provided or to be provided by the Education Trust; (2) to lockout; or (3) to strike.
  4. In the event of any termination pursuant to Section 5(d) above, the NBA and Players Association agree to bargain in good faith with respect to an alternative arrangement designed to provide the programs described in the Education Trust Agreement. Such alternative arrangement shall, to the extent permitted by applicable law, be funded by such monies as may then remain in the Education Trust and, if the monies remaining in the Education Trust may not lawfully be used for, or are insufficient for, such purpose, such alternative arrangement shall be funded, by the NBA Teams; provided, however, that the annual cost incurred by the Teams in connection with such alternative arrangement (as determined on an after-tax basis) shall not exceed the annual cost that such Teams would have incurred to fund the Education Trust commencing on the date of termination. Any such alternative arrangement shall be operated and administered in a manner that will result in all contributions by the Teams being fully deductible under the Code (and, where applicable, Canadian income tax laws) when paid; and, if funded by the Teams (and not out of existing monies remaining in the Education Trust), the costs of funding any alternative to the Education Trust shall be applied against the New Benefit Amount provided for by Section 8 below, shall be limited to the portion of the New Benefit Amount, if any, that is available for this purpose pursuant to Section 8(b)(5) below, and shall be subject to the limitations set forth in this Agreement. If despite good faith negotiations, the NBA and the Players Association fail to agree with respect to an alternative arrangement as described above, such failure to agree shall not create any right (1) to unilaterally implement, during the term of this Agreement, any terms concerning the provision of programs provided or to be provided by the Education Trust; (2) to lockout; or (3) to strike.
  5. Upon written notice delivered to the NBA at least six (6) months prior to the commencement of any Salary Cap Year, the Players Association may elect to terminate the programs currently provided by the Education Trust and substitute alternative programs; provided, however, that the NBA consents to such substitution, which such consent shall not be unreasonably withheld; and provided, further, that any new programs shall comply with the provisions of Section 302(c)(9) of the Labor Management Relations Act of 1947, as amended, and shall qualify as a permitted activity of an exempt organization under Section 501(c)(5) of the Code.

4.6 Additional Player Benefits

Except as set forth below, the NBA shall provide the following additional benefits:

  1. Workers’ compensation benefits in accordance with applicable statutes. Such benefits will be provided for players and Two-Way Players.
  2. Funding for the annual Players Association High School Basketball Camp (or any substitute program mutually agreed upon by the parties) in the amount of $1,034,012 for the 2017-18 Season, increasing by seven and one-half percent (7.5%) per Season thereafter for the term of this Agreement.
  3. Player Playoff Pool in the amount of $20 million for the 2017-18 Season, changing by a percentage in each Season thereafter for the term of this Agreement, which percentage shall be calculated by dividing: (1) the amount obtained by subtracting BRI for the immediately preceding Season from BRI for the then-current Season; by (2) BRI for the immediately preceding Season. If the NBA increases the number of Teams participating in the playoffs, the Player Playoff Pool shall be increased by $615,000 for each Team added. The NBA will consult with the Players Association with respect to the method of allocation of the Player Playoff Pool.
  4. The employer’s portion of payroll taxes.
  5. The Players Association’s one-half share of the payment of fees and expenses to the Accountants (as defined in Article VII, Section 10(a) below) in connection with any audit conducted under this Agreement, and the Players Association’s one-half share of the payment of fees and expenses payable with respect to the TV Expert (as defined in Article VII, Section 1(a)(7)(ii) below) and any expert selected in accordance with Article VII, Section 1(a)(7)(i).
  6. The Players Association’s share of the costs of the Anti-Drug Program as provided for by Article XXXIII.
    1. The sum of the Compensation paid to each player with three (3) or more Years of Service who signs a one-year, 10-Day or Rest-of-Season Contract for the Minimum Player Salary during a Season, less, for each such player, the Minimum Player Salary for a player with two (2) Years of Service.
    2. The Compensation paid to any player with three (3) or more Years of Service who signs a one-year, 10-Day or Rest-of-Season Contract for the Minimum Player Salary in excess of the Minimum Player Salary for a player with two (2) Years of Service shall be paid by the player’s Team pursuant to the terms of such player’s Uniform Player Contract, and then reimbursed to the Team out of a League-wide fund created and maintained by the NBA. Such reimbursement shall be made at the conclusion of the Season covered by the Contract.
    3. The sum of the Compensation paid to players under Rookie Scale Contracts in respect of the Rookie Scale Conforming Increases (as defined in Article VIII, Section 5(a)) in accordance with the provisions of Article VIII, Section 5.
    4. Rookie Scale Conforming Increases required to be paid to any player pursuant to Article VIII, Section 5 shall be paid by the applicable player’s Team in accordance with the payment schedule set forth in the player’s Uniform Player Contract, and then reimbursed to the Team out of a League-wide fund created and maintained by the NBA. Such reimbursement shall be made at the conclusion of the Season covered by the Contract.
  7. One-half of the annual funding of $1 million for the NBA Players Legacy Fund that is provided jointly by the NBA and the Players Association.
  8. Any additional contributions that may be required to be made to the Pension Plan because of any new law, change or amendment made to ERISA, the Code and/or any other applicable law or to any regulations (whether final, temporary or proposed), rulings or formal guidance issued thereunder that is effective for a Plan Year that first begins after the effective date of this Agreement.
  9. Costs of player attendance at the partner forums as set forth in the following sentence. For the purposes of enhancing career exposure and professional development, the NBA agrees to permit current and former players to attend partner forums held from time-to-time with NBA business partners, subject to advance notice by the players and there being a reasonable number of player attendees such that the primary purpose of the forums (i.e., to facilitate interaction between the NBA and business partners) will be maintained. To the extent reasonably practicable, the NBA agrees to provide the Players Association with advance notice of partner forums that it is aware of.
  10. The Players Association’s one-half share of the costs of: (1) the Fitness to Play Panels as provided for by Article XXII, Section 11; (2) the player care survey as provided for by Article XXII, Section 12; and (3) the Wearables Committee, including, without limitation, the costs of retaining experts, as provided for by Article XXII, Section 13.
  11. Costs described in Sections 1(f), 2(g)(2), 3(e)(2), 4(e), and/or 5(c)(1) above to the extent such costs are not paid as New Benefit Amounts pursuant to the provisions of Section 8 below due to the unavailability of any New Benefit Amount for payment of such costs (provided that as to Section 5(c)(1), solely those costs attributable to the operation and administration of the Education Trust, including, without limitation, Professional Fees, shall be included in this Section 6(l)).
  12. The benefits funded by the New Benefit Amount set forth in Section 8 below.

4.7 Canadian Residents.

As of the effective date of this Agreement, and continuing until the expiration or termination of this Agreement, Toronto shall provide the following benefits to Canadian Residents:

  1. Definitions. All capitalized terms used in this Section 7 not otherwise defined in this Agreement shall have the meanings set forth below:
    1. “Eligible Canadian Resident” shall mean a Canadian Resident who would be eligible to participate in the Pension Plan, the Post-Career Income Plan, the HRA Benefit and/or the 401(k) Plan, in each case, but for the fact that he is a Canadian Resident.
    2. “EHT” shall mean the Ontario Employer Health Tax.
    3. “Gross Amount” for a Season shall mean, as applicable, the sum of:
      1. if the player is an Eligible Canadian Resident in respect of the Pension Plan, the annual accrual cost that Toronto would have incurred under the Pension Plan for such Eligible Canadian Resident for such Season but for the fact that he was Canadian Resident; and
      2. if the player is an Eligible Canadian Resident in respect of the Post-Career Income Plan, the amount of the per-player Allocated Share for such Season; and
      3. if the player is an Eligible Canadian Resident in respect of the HRA Benefit, the amount of the contribution to fund the HRA Benefit for such Season that such player would be entitled to under Section 3(a)(1) but for the fact that he is a Canadian Tax Resident; provided that, for the avoidance of doubt, the Gross Amount(s) previously allocated to such player in lieu of the HRA Benefit for years in which he was an Eligible Canadian Resident in respect of the HRA Benefit shall be applied against the dollar limitations in Section 3(a)(1); and
      4. if the player is an Eligible Canadian Resident in respect of the 401(k) Plan, the amount of the Matching Contribution (as defined in the 401(k) Plan) for such season assuming that the Eligible Canadian Resident had made the maximum player deferral permitted under the 401(k) Plan for such Season.
    4. “Adjusted Gross Amount” shall mean the adjusted gross amount that is equal to the Eligible Canadian Resident’s Gross Amount less the amount of EHT on such adjusted gross amount.
  2. Cash payment. For each Season during the term of this Agreement, each Eligible Canadian Resident shall be entitled to a single sum payment subject to the following terms and conditions:
    1. The amount of the payment shall equal the Eligible Canadian Resident’s Adjusted Gross Amount in respect of such Season, less all amounts required to be withheld by any governmental authority, and less the employer’s share of payroll taxes for the Eligible Canadian Resident (the “Cash Payment”).
    2. The Cash Payment shall be paid in Canadian dollars to the Eligible Canadian Resident by no later than the December 31 immediately following the end of the Season to which the payment relates. For purposes of calculating the Cash Payment, the Adjusted Gross Amount shall be calculated in U.S. dollars and then converted to Canadian dollars using the nominal noon exchange rate quoted by the Bank of Canada for converting U.S. dollars into Canadian dollars on the first day of the month in which the Cash Payment is made, or if there is no such U.S. dollar to Canadian dollar exchange rate quoted for that date, the closest preceding date on which such exchange rate is quoted by the Bank of Canada.
    3. The Cash Payment shall not be considered part of an Eligible Canadian Resident’s Escrow Amount under Article VII of this Agreement.
  3. Funding of Gross Amount. All costs, including, without limitation, the Gross Amount and the cost of Professional Fees, incurred in connection with the determination and implementation of this Section 7: (i) that are attributable to the Pension Plan, the 401(k) Plan and the HRA Benefit shall be applied against the New Benefit Amount provided for by Section 8 below and limited to the portion that is available for this purpose pursuant to Sections 8(b)(1), (2) and (7) respectively and (ii) that are attributable to the Post-Career Income Plan shall be funded from the Team Funding Pool.

4.8 New Benefits Funding.

    1. For each Salary Cap Year during the term of this Agreement, an aggregate amount (the “New Benefit Amount”) equal to $1.1 million multiplied by the number of Teams in the NBA during the Season that is covered by such Salary Cap Year shall be provided by the Teams to fund the benefits described in Section 8(b) below, unless the Players Association designates a lesser amount with respect to a Salary Cap Year, by notice in writing to the NBA delivered on or before the March 15 prior to the commencement of such Salary Cap Year.
    2. Notwithstanding subsection (a)(1) above, the New Benefit Amount for each Salary Cap Year shall be subject to reduction pursuant to Article VII, Section 12(b)(1). For purposes of all calculations called for under this Agreement of, or relating to Benefits (including, without limitation, for purposes of (i) preparing the Audit Report, Interim Audit Report, or Interim Escrow Audit Report, and (ii) calculating Total Benefits, Total Salaries and Benefits, and Projected Benefits), the amount to be included with respect to the New Benefit Amount shall be the full New Benefit Amount specified in Section 8(a)(1) above (less the amount excluded from such calculations, if any, as provided for under Section 8(b)(8)) and not the reduced New Benefit Amount provided for under Article VII, Section 12(b)(1).
  1. Subject to Section 8(c) below, the New Benefit Amount, after taking into account the reduction provided for in Section 8(a)(2) above, shall be utilized in the following manner for each Salary Cap Year:
    1. The New Benefit Amount shall first be utilized, to the extent necessary, to fund any pension contribution increases and costs described in Section 1(f) above. If the New Benefit Amount is insufficient for these purposes, the shortfall, over as short a period of time as is reasonably possible, shall be offset against: (i) the New Benefit Amount for the next Salary Cap Year; and/or (ii) the NBA’s obligation to provide Benefits (other than Benefits funded via the New Benefit Amount) under this Article IV. The determination of the allocation of and type(s) of offset(s) to be applied (as between (i) and/or (ii) above) shall be made by the Players Association, subject to the NBA’s consent, which shall not be unreasonably withheld.
    2. Subject to the provisions of Section 2 above, and after taking into account the expenditure described in Section 8(b)(1) above, the remainder of the New Benefit Amount, if any, shall be utilized, to the extent necessary, to fund the cost of Matching Contributions with respect to the 401(k) Plan (and, if applicable, to fund the cost of any alternative arrangement described in Sections 2(e) and (f) above) and to pay the costs described in Section 2(g)(2) above.
    3. After taking into account the expenditures described in Section 8(b)(1) and (2) above, the remainder of the New Benefit Amount, if any, shall be utilized, to the extent necessary, to fund $582,000 of the cost of the life insurance and accidental death and dismemberment benefits described in Section 3(a)(2)(i) above.
    4. After taking into account the expenditures described in Section 8(b)(1) – (3) above, the remainder of the New Benefit Amount, if any, shall be utilized, to the extent necessary, to fund any incremental cost of changes in the medical and dental benefits made pursuant to a Regulatory Change in accordance with the provisions of Section 3(d) above or any change made in accordance with the provisions of Section 3(a)(5) above.
    5. After taking into account the expenditures described in Section 8(b)(1) – (4) above, the remainder of the New Benefit Amount, if any, shall be utilized, to the extent necessary, to fund the education and career counseling programs to be operated and administered by the Education Trust (or any programs that, pursuant to Section 5(f) above, are substituted for such education and career counseling programs) described in Section 5 above and to pay the costs described in Section 5(c) above.
    6. After taking into account the expenditures described in Section 8(b)(1) – (5) above, the remainder of the New Benefit Amount, if any, shall be utilized to pay the costs of the Post-Career Income Plan in accordance with the provisions of Section 4(e) above.
    7. After taking into account the expenditures described in Section 8(b)(1) – (6) above, the remainder of the New Benefit Amount, if any, shall be utilized to pay the costs of the HRA Benefit (and, if applicable, to pay the costs of any alternative arrangement with respect to the HRA Benefit as described in Sections 3(c) and 3(d)(3) above), in accordance with the provisions of Section 3 above and to pay the costs described in Section 3(e) above.
    8. After taking into account the expenditures described in Section 8(b)(1) – (7) above, the remainder of the New Benefit Amount, if any, shall be utilized to fund any additional player benefits as may be agreed to by the NBA and the Players Association by the March 15 falling within such Salary Cap Year. Upon either the NBA’s or the Players Association’s request, the NBA and the Players Association agree to bargain in good faith with respect to additional player benefits; provided, that if despite good faith negotiations, the NBA and the Players Association fail to agree with respect to such additional player benefits, such failure shall not create any right (i) to unilaterally implement during the term of this Agreement any terms concerning the provision of such additional player benefits; (ii) to lockout; or (iii) to strike. In the event the NBA and the Players Association do not agree to use the remainder of the New Benefit Amount, if any, to fund additional player benefits by the March 15 falling within such Salary Cap Year, then the remainder of the New Benefit Amount, if any, shall be retained by the Teams, and the amount of such remainder shall be excluded for purposes of all calculations called for under this Agreement of, or relating to, Benefits (including, without limitation, for purposes of (A) preparing the Audit Report, Interim Audit Report, or Interim Escrow Audit Report, and (B) calculating Total Benefits, Total Salaries and Benefits, and Projected Benefits).
  2. Notwithstanding anything to the contrary in this Article IV:
    1. In no event shall the Teams (or the NBA) pay amounts for any Salary Cap Year with respect to the benefits described in Section 8(b) above in excess of the New Benefit Amount for such Salary Cap Year.
    2. Until the final Audit Report (or, if applicable, the Interim Escrow Audit Report) for a Salary Cap Year is completed, the NBA shall not be required to spend, or commit to spend, any portion of the New Benefit Amount for such Salary Cap Year.

4.9 Projected Benefits.

  1. For purposes of computing the Tax Level, Salary Cap and Minimum Team Salary in accordance with Article VII, “Projected Benefits” shall mean the projected amounts, as estimated by the NBA in good faith, to be paid or accrued by the NBA or the Teams, other than Expansion Teams during their first two Salary Cap Years, for the upcoming Salary Cap Year with respect to the benefits to be provided for such Salary Cap Year. In the event that the amount of any benefit for the upcoming Salary Cap Year is not reasonably calculable, then, for purposes of computing Projected Benefits, such amount shall be projected to be one hundred four and one-half percent (104.5%) of the amount attributable to the same benefit for the prior Salary Cap Year.
  2. For purposes of computing Projected Benefits, (i) the amount to be included with respect to players with three (3) or more Years of Service who receive the Minimum Player Salary shall be the same amount included in Benefits with respect to such players for the immediately preceding Season; and (ii) no amounts paid in respect of Rookie Scale Conforming Increases shall be included.
  3. For purposes of computing Projected Benefits with respect to a Salary Cap Year, the amount to be included with respect to the Additional Benefit Amount shall be one percent (1%) of Projected BRI for such Salary Cap Year.
  4. For purposes of computing Projected Benefits with respect to a Salary Cap Year, there shall be taken into account any reduction in the New Benefit Amount with respect to such Salary Cap Year as designated by the Players Association, by notice in writing to the NBA delivered on or before the March 15 immediately preceding the commencement of such Salary Cap Year.

4.10 Benefit Exclusion Amount.

  1. An amount equal to the Benefit Exclusion Amount (defined below) shall be (i) paid by the Teams and (ii) excluded for purposes of all calculations called for under this Agreement of, or relating to, Benefits (including, without limitation, for purposes of: (A) preparing the Audit Report, Interim Audit Report, or Interim Escrow Audit Report, and (B) calculating Total Benefits, Total Salaries and Benefits, and Projected Benefits).
  2. The “Benefit Exclusion Amount,” for each Salary Cap Year, shall mean the sum of:
    1. The “Pension Exclusion Amount,” which shall equal fifty percent (50%) of the portion of the increase in the amount of the actuarially-determined annual contributions to be made to the Pension Plan to fund the portion of the liabilities for the 2017-18 Benefit Increase (defined below) that is attributable to the Current Retiree Group (defined below), as determined by the actuaries of the Pension Plan. The “2017-18 Benefit Increase” means the increase in the Monthly Benefit from $572.13 to $812.50; and
    2. Fifty percent (50%) of the portion of the increase in the amount of the actuarially-determined annual contributions to be made to the Pension Plan, and fifty percent (50%) of the portion of the increase in the cost under the Pre-1965 Players’ Excess Benefit Plan, to fund the 2017-18 Pre-1965 Benefit Increase; and
      1. Fifty percent (50%) of the portion of the costs (including, without limitation, the cost of Professional Fees) that were approved by both an NBA designee and a Players Association designee as having been properly incurred in connection with the operation and administration of the Retiree Medical Plan (“Administrative Costs”), but only to the extent that such costs are attributable to the Current Retiree Group. The portion of the Administrative Costs for a Salary Cap Year that is attributable to the Current Retiree Group shall be determined by multiplying the total Administrative Costs for the Salary Cap Year by the “Allocation Percentage” (defined below) for such Salary Cap Year. The “Allocation Percentage,” for a Salary Cap Year, means the fraction, when expressed as a percentage, the numerator of which is the number of players in the Current Retiree Group who are enrolled in the Retiree Medical Plan on the day that is sixty (60) days prior to the last day of such Salary Cap Year, and the denominator of which is the total number of players who are enrolled in the Retiree Medical Plan on such date.
      2. Fifty percent (50%) of the portion of the premium costs paid to the insurer of the Retiree Medical Plan (excluding the participant share of premium contributions) that is attributable to the Current Retiree Group. Such portion of the premium costs shall be calculated based on the schedules provided by the insurer of the Retiree Medical Plan that set forth the monthly premium payments for each eligible retiree or any eligible dependent based on the applicable coverage level elected.
      3. The calculations required by this Section 10(b)(3) shall be performed by the actuarial/consulting firm employed by the Pension Plan, whose calculations shall be binding and conclusive; and
    3. Fifty percent (50%) of the portion of reimbursable tuition reimbursement and career transition benefits for players under the Health and Welfare Benefit Plan (as described in Section 3(a)(7) above) that is attributable to the Current Retiree Group; and
    4. The sum of the Two-Way 401(k) Exclusion Amounts (defined below) for all Two-Way Players who are Eligible Players under the 401(k) Plan. The “Two-Way 401(k) Exclusion Amount” for each such player is the amount equal to the lesser of: (A) twenty-five percent (25%) of such player’s Salary Deferral Contributions attributable to his Two-Way NBADL Salary only, and (B) one percent (1%) of such player’s Two-Way NBADL Salary only; and
    5. The portion of the premium costs paid to the applicable insurer(s) (excluding the employee share of premium contributions) to provide the medical, prescription drug, dental and life insurance and accidental death and dismemberment insurance benefits to Two-Way Players as described in Section 3(a)(2)(i) and 3(a)(2)(iii) above; and
    6. The premium costs paid to the insurer to provide the vision benefits to Two-Way Players as described in Section 3(a)(2)(v) above; and
    7. The amount equal to: (A) the premium costs under the workers’ compensation policy covering NBADL players in the Salary Cap Year, divided by the average number per month of participants covered under such policy during the NBADL regular season occurring within such Salary Cap Year; multiplied by (B) the average number per month of Two-Way Players (excluding, for any month’s calculation, Two-Way Players who were signed or converted to Standard NBA Contracts in that or a prior month) during the Regular Season; and
    8. The sum of the Two-Way Payroll Tax Exclusion Amounts (defined below) for all Two-Way Players. The “Two-Way Payroll Tax Exclusion Amount” for each Two-Way Player equals the employer’s share of payroll taxes in respect of his Two-Way NBADL Salary only.
    1. The “Current Retiree Group” shall mean those former players whose last day on an NBA Active List or Inactive List during a Regular Season occurred before the 2016-17 Season.
    2. The “Current Player Group” shall mean those players whose last day on an NBA Active List or Inactive List during a Regular Season will occur during or after the 2016-17 Season.
  3. If a player who is included in the Current Retiree Group for one or more Salary Cap Years returns to an NBA Active List or Inactive List and thereby moves to the Current Player Group in a later Salary Cap Year, the Benefit Exclusion Amount for the Salary Cap Year during which he returns to an NBA Active List or Inactive List shall be reduced by the amount of the portion of the Benefit Exclusion Amount for the prior Salary Cap Year(s) that is attributable to such player.
  4. If the NBA and Players Association provide an alternative arrangement to any benefit referenced in Sections 10(b)(1) through 10(b)(7) above, the amount to be included in the calculation of the Benefit Exclusion Amount with regard to that alternative arrangement shall not exceed the amount referenced in the applicable part of Section 10(b) with regard to the benefit being replaced by that alternative arrangement for the most recent Salary Cap Year before such benefit was replaced.
  5. For the avoidance of doubt, other than the Benefit Exclusion Amount, all amounts paid or to be paid during any Salary Cap Year by the NBA or the NBA Teams for the benefits described in this Article IV shall be included for purposes of all calculations called for under this Agreement of, or relating to, Benefits (including, without limitation, for purposes of (1) preparing the Audit Report, Interim Audit Report, or Interim Escrow Audit Report, and (2) calculating Total Benefits, Total Salaries and Benefits, and Projected Benefits).