NBA star Kyrie Irving could have little legal recourse to play while unvaccinated, experts say

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The Brooklyn Nets upset some fans this week by benching star point guard Kyrie Irving over his refusal to get vaccinated against COVID-19, in violation of a New York City vaccine mandate for indoor venues.

Experts say there is likely little legal recourse that could open up the Barclays Center and other New York city courts for him to play alongside his team, favored to contend for this season’s NBA championship.

New York City's mandate sidelining Irving became effective Aug. 19 and requires proof of at least one COVID-19 vaccine in anyone 12 and older to enter indoor entertainment, fitness, and dining venues.

Several employment lawyers say Irving has little room to maneuver around New York City’s rule. First, exceptions are limited to those who qualify, ask for, and are granted accommodations. Customers of the city's indoor venues can request reasonable accommodations based on disability, while employees can ask for exemptions based on disability, religion, pregnancy, or status as a victim of certain crimes.

Still, venues can legally refuse accommodations that threaten others or impose an undue hardship on their business. While Irving has not publicly raised any qualification for an accommodation, even if he did request one in the future, experts say, he’s not guaranteed to get it.

'Where this starts is the U.S. Constitution'

The other reason Irving could have little recourse has to do with the fact that, under the Constitution’s Supremacy Clause, otherwise known as Article 6, the rule doesn't directly conflict with federal law.

“Really where this starts is the U.S. Constitution, Article 6,” Roger Feicht, a labor and employment lawyer, told Yahoo Finance. “The New York City law, it’s about venues. It's about anyone who wants to enter the Barclay’s Center. It's fans entering the stadium. It's vendors entering the stadium.”

The Constitutional protections extend all the way to local government rules, the lawyers said. Under police powers, localities, like states, are permitted to impose laws more strict than federal ones.

“Federal law typically sets the floor, or in Kyrie Irving’s case, the parquet floor, with regard to the law,” litigation and employment attorney Steven Adler told Yahoo Finance.

Jun 5, 2021; Brooklyn, New York, USA; Brooklyn Nets point guard Kyrie Irving (11) reacts after making a basket against the Milwaukee Bucks during the second quarter of game one in the Eastern Conference semifinals of the 2021 NBA Playoffs at Barclays Center. Mandatory Credit: Brad Penner-USA TODAY Sports
Jun 5, 2021; Brooklyn, New York, USA; Brooklyn Nets point guard Kyrie Irving (11) reacts after making a basket against the Milwaukee Bucks during the second quarter of game one in the Eastern Conference semifinals of the 2021 NBA Playoffs at Barclays Center. Mandatory Credit: Brad Penner-USA TODAY Sports

In theory, an anticipated federal vaccine mandate, announced in September by the President Joe Biden, could impact New York City’s mandate. The yet-to-be-seen rule, which NBC reported could be finalized next week, would require employers with 100 or more workers to ensure worker get vaccinated or undergo weekly COVID-19 tests. Federal employers and contractors would be required to get vaccinated, with no testing option alternative.  

If the measure is implemented as expected, it too, leaves slim legal recourse for Irving and others like him because it's more lenient than the city's local rule.

“That, in and of itself, should not pose a problem as to the law’s enforceability,” Adler said.

If Irving wanted to argue that the weekly testing opt out should trump the New York City local rule, Feicht said, he would have to show it's impossible to comply with the federal law and the state law.

“That’s going to be a challenge for him here,” he said. If anything, Feicht added, the federal rule, though expected to face legal challenges, is likely to make it tougher for Irving and other professional players within large organizations to play while unvaccinated, because across the country, they, like other workers, will need to adhere to federal rule.

The All Star player defended his position during an Instagram Live on Wednesday night, suggesting he's not against the vaccine but rather opposes to mandates. “I am not an advocate for either side,” Irving said.

The player stands to lose $16 million in salary and $186 million in extension potential, according to The Athletic's Shams Charania.

“I’m doing what’s best for me. I know the consequences here. If it means I’m judged and demonized for that, that’s just what it is. That’s the role I play,” Irving said.

Alexis Keenan is a legal reporter for Yahoo Finance. Follow Alexis on Twitter @alexiskweed.

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