Stern's affidavit regarding Hawks' ownership situation Published on: 08/11/05 我， DAVID J. STERN 在此正式宣示： 我以 NBA 主席的身分，呈递此份宣誓书给法院。在 8/9/2005 由 Boston 法院，依据 NBA 协议书第 5(d) 部分所提出的备忘录与命令，禁止 Belkin 在 Atlanta Hawks 的 NBA Governor 职位被其他合夥人移除，理由为 NBA 主席必须优先认可之。基於以下理 由，我在此批准并以此方式授权 Hawks 移除 Belkin 的职位。 虽然我相信，法院对於协议书第 5(d) 部分，可以简单解释为提出撤换 Governor 的请 求必须先经过我的同意，也希望依此获得本案的最终解决之道。但是我个人的见解，可 以透过第 5.1(k) 部分（ HTPA Holding Company LLC Agreement ），来加以解释。 我的结论是，在第 5.1(k) 部分提到，如果 Governor 知道他自己正在阻碍大多数经营 者的意志时，他仍利用其职位上的权力在法律上约束球队运作 -- 例如完成某球员的交 易或阻止交易某位球员 -- 此时罢免他的要求应该被允许。 而关於是否要执行这项五年近 70M 的交易这个议题，与这项交易很有可能对一支球队带 来的长期影响 -- 不论成功或失败 -- 毫无疑问都使其可以属於第 5.1(k) 的范畴。 在 8/1/2005 ， Belkin 利用其身为 NBA Governor 的权力阻碍 Joe Johnson 的交易。 他违反了总管与其余大多数合夥人的意志，根据 5(d) ，他约束了球队正常运作，让 Suns 与 Hawks 无法完成交易。 当我们在解释何谓「在法律上约束球队」时，我不相信完成某项交易与阻止某项交易的 完成两者间有任何有意义的区别。如果 Belkin 违反大多数经营者的意志去交易来 Joe Johnson 时，他绝对构成在法律上约束了这支球队且依据 5.1(k) ，他必须面临被罢免 的命运。如果Belkin 阻碍交易的理由是由於 NBA 经由 5(d) 所直接赋予的权力，这仍 然属於法律上约束球队的行为，因为这等於强迫 NBA 当局阻止交易。 当我做出这项结论时，我对於 Johnson 的交易是好是坏并没有任何的意见。我也没有暗 示 Belkin 做错了什麽事情， 5.1(k) 关於移除其职位的标准并不是建立在 Governor 做出错误的行为上，而是建立在其是否有构成在法律上地约束球队并违反大多数经营者 意志的行为上。 故依此标准，我认为 Belkin 阻挡交易 Joe Johnson 的行为以 5.1(k) 来看是在法律上 约束了球队。所以客观而言，他应该被其他经营者罢免。 我已经备要求批准 Michael Gearon Jr. 为 Governor 的继任人选。 NBA 经过调查，认 为 Gearon 符合资格，故我批准之。而 Belkin 将依据 5.1(k) 被撤换。 ------------------------------------------------------------------------------ 我实在翻得很烂...仅附原文以供参考，请多指教。 I, DAVID J. STERN, being duly sworn, depose and say: I am the Commissioner of the National Basketball Association, and submit this Affidavit, pursuant to the Court's view, as set forth in its August 9, 2005 Memorandum and Order, that under paragraph 5(d) of the NBA Agreement and Undertaking, Mr. Belkin cannot properly be removed as NBA Governor of the Atlanta Hawks absent the prior approval of the NBA Commissioner. For the reason stated below I deem such approval appropriate and hereby grant it. While I believe that paragraph 5(d) can fairly be read as requiring nothing more than my prior approval of the proposed replacement Governor, in light of the Court's reading of that paragraph, and in the interest of assisting the Court in reaching an ultimate determination, I submit herewith my own views on whether the requirements for removal under paragraph 5.1(k) of the HTPA Holding Company LLC Agreement have been satisfied. My conclusion is that, under paragraph 5.1(k) if the Governor knows or reasonably should know that he is acting contrary to the wishes of a majority of the Board of Managers, and he nevertheless proceeds to take an action in connection with a material matter that legally binds the team — such as consummating a player trade or preventing the consummation of a player trade — the requirements for removal have been met. The decision whether or not to trade for a player who is to be paid nearly $70 million over 5 years and who may well have a long-standing impact on the success or failure of the team, is, without doubt, a material matter as that term is used in paragraph 5.1(k). On August 1, 2005, Mr. Belkin acted to block the trade of Joe Johnson by directing the NBA (through a letter sent by his outside counsel) not to proceed with a trade call between the Hawks and the Phoenix Suns that, if held, would have consummated the trade for Mr. Johnson previously negotiated by the Hawks? General Manager and approved by the Hawks? Board of Managers. Mr. Belkin's action — which, pursuant to paragraph 5(d) of the NBA Agreement and Undertaking, was binding on the team — barred the Hawks and the Suns from completing the trade. In interpreting the phrase "action to legally bind" the team, I do not believe there is a meaningful distinction between acting to consummate a trade or acting to prevent the consummation of a trade. There appears to be no dispute that if Mr. Belkin had proceeded to consummate the trade for Joe Johnson against the wishes of the majority of the Board of Managers, he would have acted to "legally bind" the team and faced removal under paragraph 5.1(k). Directing the NBA not to proceed with the trade call was also an "action" that, by reason of the authority conferred on Mr. Belkin by paragraph 5(d) of the NBA Agreement and Undertaking, was no less "legally binding" on the team, in that it compelled the NBA to bar the trade. In reaching this conclusion, I express no view at all as to whether the proposed trade for Mr. Johnson is wise, unwise, well-considered or ill-considered. I also do not mean to suggest that, in preventing the trade, Mr. Belkin has done anything wrong or has acted improperly in any way. The test for removal under paragraph 5.1(k) is not founded upon misconduct; it is based solely on the Governor taking action in connection with a material matter that "legally binds" the team but is at odds with the wishes of the majority of the Board of Managers. Given that standard, it is my view that by blocking the trade of Joe Johnson, Mr. Belkin has acted to legally bind the Hawks within the meaning of paragraph 5.1(k) of the LLC Agreement, and therefore is subject to removal as NBA Governor by the Board of Managers. With respect to my right under paragraph 5(d) of the NBA Undertaking to approve the proposed replacement Governor, I have been asked to approve Michael Gearon, Jr. to replace Steve Belkin as Governor of the Hawks. The NBA has this week conducted an investigation that has failed to reveal any event or circumstance that has occurred or become known that would bring into question Mr. Gearon's qualification to be a controlling owner of an NBA team, and accordingly I would approve Mr. Gearon as the replacement Governor of the Hawks, in the event it is determined that Mr. Belkin has been properly removed in accordance with paragraph 5.1(k) of the LLC Agreement. 资料来源 http://www.ajc.com/sports/content/sports/hawks/0805/12hawksside.html --

※ 发信站: 批踢踢实业坊(ptt.cc) ◆ From: 59.121.50.246 ※ 编辑: sssfrost 来自: 59.121.50.246 (08/12 20:50)