NBA PLAYERS PROTEST: WHY THEIR REFUSAL TO PLAY COULD PROVOKE LEGAL RAMIFICATIONS

By: Jason Leadley, Volume 105 Staff Member

 On August 23, 2020, police officers shot Jacob Blake, a 29-year-old Black man from Kenosha, Wisconsin, sparking protests.[1] Following the shooting, the Milwaukee Bucks decided not to take the floor in their Game 5 playoff matchup against the Orlando Magic.[2] The NBA players, alongside other professional athletes, sought to use their platform to raise awareness about racial injustice in the United States.[3] Specifically, the players wanted league owners to be more proactive combating racial injustice and adopt commitments that go beyond monetary contributions.[4]

On the day of Game 5, the Milwaukee Bucks tweeted that they boycotted their first-round series game.[5] Shortly after, the New York Times tweeted that their sports section’s headline would read “BOYCOTT,”[6] sparking a legal debate in the media.[7] The NBA players are members of the National Basketball Players Association (NBPA) union and parties to the National Basketball Association Collective Bargaining Agreement (CBA).[8] A discussion ensued concerning whether the players’ protest was a strike, violating the CBA’s no-strike clause, or a boycott, placing their refusal to play outside the scope of the CBA.[9] From Representative Alexandria Ocasio-Cortez,[10] to the NBA Referees,[11] people took to social media to express their opinion regarding the correct way to label the players’ protest. Newspaper outlets followed suit, writing countless articles about whether this protest classifies as a strike or a boycott.[12]

The media’s focus on classifying the players’ protest as either a strike or a boycott is important but not dispositive under the CBA. This post argues the NBA could sue the NBPA under the CBA’s no-strike clause, regardless of whether the players’ action is categorized as a strike or boycott. Through analysis of the no-strike clause’s plain language, guided by New York and federal law, this post concludes the NBA players violated the no-strike provision. The post will break down the provision into three prohibitions—strike, cessation or stoppage of work, and any similar interference with NBA operations—and establish that the players’ refusal to play could breach any, if not all, of these prohibitions.

I. THE CBA’S NO-STRIKE CLAUSE PROVIDES THE NBA THREE AVENUES TO ESTABLISH A BREACH

 The CBA lays out the terms and conditions of employment for all NBA players[13] and is governed by New York’s state law, except where federal law may prevail.[14] Under the no-strike clause, “neither the Players Association nor its members shall engage in any strikes, cessations or stoppages of work, or any other similar interference with the operations of the NBA or any of its Teams.”[15] These no-strike provisions are generally enforceable.[16]

Under New York and federal law, a collective bargaining agreement is a contract.[17] To interpret a contract, a court must limit its analysis to the four corners of the document and enforce it according to its terms’ plain meaning.[18] Under the CBA, the use of “or” in the no-strike clause indicates that each part of this clause stands independent of one another. Proving the players participated in a strike would be sufficient to find a breach of the no-strike clause. Yet, the NBA could also establish a violation of the CBA by demonstrating that the players’ action was a “cessation[] or stoppage[] of work” or a “similar interference with the operations of the NBA.” This post will address each prohibition in part, concluding the NBA has a strong argument that the players’ protest was a violation of the no-strike clause.

A. Strike or Boycott?

 A strike is broadly defined in layman’s terms as “stop[ping] work in order to force an employer to comply with demands.”[19] Similarly, Black’s Law Dictionary defines a strike as “[a]n organized cessation or slowdown of work by employees to compel the employer to meet the employees’ demands.”[20] In contrast, a boycott is ordinarily defined as a “concerted refusal to have dealings with (a person, a store, an organization, etc.) usually to express disapproval or to force acceptance of certain conditions.”[21] According to legal definitions, a boycott is an “action designed to achieve the social or economic isolation of an adversary.”

The definitions of a strike are on point regarding the issue at hand for two reasons. First, the NBA players are employees demanding change from the owners, as their employers. Therefore, their refusal to play would fall under the strike definition’s employee versus employer framework. Second, the NBA players’ goal was to induce the owners to be proactive about combating racial injustice and commit more than financial support to the cause.[22] Consequently, their action falls squarely under the definitions’ criteria of compelling the employers (owners) to comply with certain demands.

The NBPA would likely argue in favor of calling this protest a boycott for a couple of reasons. As a matter of practicality, the NBA players[23] and organizations[24] referred to this protest as a boycott. Because it was the players’ goal to extract concessions from the owners or cause financial damage to the league, the definition of boycott better suits their refusal to play.[25] Whether this was a mere coincidence or the result of legal counsel advising them to refrain from calling it a strike is uncertain. However, this misnomer would likely not be enough to relieve the players of liability under the no-strike clause because of the explicit employee versus employer framework of their action against the NBA.

B. Cessation or Stoppage of Work

 If a court categorized the players’ protest as a boycott, this would likely not relieve the NBPA of liability under the no-strike clause’s remaining language. Following the prohibition against a strike, the no-strike clause also expresses a ban against “cessations or stoppages of work.”[26] The dictionary defines cessation as “a temporary or final ceasing.”[27] Given that the NBA Finals concluded on October 11 with the Los Angeles Lakers winning their 17^th Title,[28] the “final ceasing” aspect of the definition is irrelevant to this discussion.

Therefore, the NBA would be left arguing, albeit strongly, that the players’ protest was a temporary ceasing of work, thus violating the CBA. The NBA would likely begin by emphasizing that the remainder of the season was in jeopardy following the players’ initial refusal to play.[29] The players would likely counter, contending that the postponement of games illustrated their protest’s lack of finality, relieving them of liability. However, this would probably be unpersuasive. The players’ initial intention was not to simply delay the games by a few days but rather to pressure the owners to concede to player demands or potentially cancel the season.[30] Only after the meeting between the NBA and NBPA on August 28, which obtained the NBA’s commitment to promote social justice through particular league-wide initiatives, did the players agree to resume play that Saturday.[31] This firmly, if not definitively, parallels a temporary ceasing of work which would likely be sufficient to violate the no-strike clause’s prohibition against a cessation or stoppage of work.

C. Catch-all Provision

 If the above arguments were rejected, the third extremely broad catch-all provision puts the nail in the coffin for the NBPA. The no-strike clause’s final prohibition institutes a breach of the CBA if the players engage in “any other similar interference with the operations of the NBA or any of its Teams.”[32] It is undeniable that at the heart of NBA operations are the actual basketball games. Interfering with these games in an analogous, but not identical, manner to the first two prohibitions of the no-strike clause and would also violate the CBA. Whether or not the players violated either of the first two prohibitions of the no-strike clause is a reasonable debate,[33] but it is hard to imagine a court finding the protest fell outside the scope of the no-strike clause’s catch-all language.

II. Conclusion

 

Although the NBA has a strong legal case against the NBPA for breaching the CBA’s no-strike clause, it does not appear the NBA will sue its players. NBA organizations,[34] owners,[35] and the NBA Commissioner Adam Silver[36] all expressed their support for the players’ protest shortly after the Milwaukee Bucks sent shockwaves through the sports world by refusing to take the court. That is the beauty of a contract; as is the case here, the parties can make ethical and moral choices to excuse a breach of an agreement to collectively pursue a greater good and make a meaningful difference in the world using their influence and platform.

[1] Christina Morales, What We Know About the Shooting of Jacob Blake, N.Y. Times (Sept. 10, 2020), https://www.nytimes.com/article/jacob-blake-shooting-kenosha.html [https://perma.cc/RV8W-ZBUE].

[2] Tim Bontemps & Malika Andrews, Three Game 5s Set for Wednesday Postponed after Bucks’ Decision to not Take Floor, ESPN (Aug. 26, 2020), https://www.espn.com/nba/story/_/id/29747523/three-game-5s-set-wednesday-postponed-bucks-decision-boycott [https://perma.cc/WDY8-W5UR].

[3] Athletes from the WNBA, Major League Baseball, and Major League Soccer all refused to play games in response to the police shooting of Jacob Blake. Derrick Bryson Taylor, N.B.A. ‘Boycott’ or Strike: What’s the Difference, N.Y. Times (Aug. 27, 2020), https://www.nytimes.com/2020/08/27/us/difference-boycott-strike-nba.html [https://perma.cc/54QM-BU98].

[4] Jasmyn Wimbish, Adam Silver Pens Letter to Employees Deciding to Strike in Solidarity with NBA and WNBA players, CBS Sports (Aug. 28, 2020), https://www.cbssports.com/nba/news/adam-silver-pens-letter-to-employees-deciding-to-strike-in-solidarity-with-nba-and-wnba-players/ [https://perma.cc/ST5E-CGDV].

[5] Milwaukee Bucks (@Bucks), Twitter (Aug, 26, 6:59 PM), https://twitter.com/Bucks/status/1298772094151467010 [https://perma.cc/N2Z5-KPKV].

[6] NYT Sports (@NYTSports), Twitter (Aug. 26, 2002, 9:14 PM), https://twitter.com/NYTSports/status/1298805947616440325 [https://perma.cc/7SXE-TD3Z].

[7] Ben Strauss, ‘Strike’? ‘Boycott’? When Athletes Stopped Playing, the Arguments over Wording Began., Wash. Post (Aug. 28, 2020), https://www.washingtonpost.com/sports/2020/08/28/strike-boycott-nba-protest/ [https://perma.cc/3GLX-EE6Z].

[8] Collective Bargaining Agreement (CBA), NBPA, https://nbpa.com/cba [https://perma.cc/C2SZ-MCWD] (last visited Oct. 12, 2020).

[9] Taylor, supra note 3.

[10] Alexandria Ocasio-Cortez (@AOC), Twitter (Aug. 26, 2020, 11:26 PM), https://twitter.com/AOC/status/1298838471906193408 [https://perma.cc/5FRM-4MN6] (responding to the NYT Sport’s tweet arguing, “Your cover title is wrong. You need to change it to STRIKE.”).

[11] See NBA Referees (@OfficialNBARefs), Twitter (Aug. 26, 2020, 4:43 PM), https://twitter.com/OfficialNBARefs/status/1298737865506148352 [https://perma.cc/9MQ3-K2EE] (“The NBRA stands in solidarity with our players’ decision to boycott tonight’s game . . . .”).

[12] See, e.g., Strauss, supra note 7; Taylor, supra note 3.

[13] Collective Bargaining Agreement, supra note 8.

[14] Nat’l Basketball Ass’n Collective Bargaining Agreement, art. XXXVIII, § 3, available at https://cosmic-s3.imgix.net/3c7a0a50-8e11-11e9-875d-3d44e94ae33f-2017-NBA-NBPA-Collective-Bargaining-Agreement.pdf [https://perma.cc/TVH6-MJ2E].

[15] Id. at art. XXX, § 1 (emphasis added).

[16] E.g., Metro. Edison Co. v. NLRB, 460 U.S. 693, 705 (1983); Time Warner Cable of N.Y. City L.L.C. v. IBEW, Local Union No. 3, 684 F. App’x 68, 71 (2d Cir. 2017).

[17] Giove v. Dep’t of Transp., 230 F.3d 1333, 1340 (Fed. Cir. 2000).

[18] Mid-State Indus., Ltd. v. State, 986 N.Y.S.2d 637, 639 (N.Y. App. Div. 2014).

[19] Strike, Merriam Webster’s Online Dictionary, https://www.merriam-webster.com/dictionary/strike [https://perma.cc/L2YS-EKPU] (last visited Oct. 12, 2020).

[20] Strike, Black’s Law Dictionary (11th ed. 2019).

[21] Boycott, Merriam Webster’s Online Dictionary, https://www.merriam-webster.com/dictionary/boycott [https://perma.cc/EL7J-VH48] (last visited Oct. 12, 2020).

[22] Wimbish, supra note 4.

[23] See Taylor, supra note 3 (noting that LeBron James and other players called it a boycott).

[24] See Milwaukee Bucks, supra note 5.

[25] See Wimbish, supra note 4; Taylor, supra note 3.

[26] Nat’l Basketball Ass’n Collective Bargaining Agreement, supra note 14, at art. XXX, § 1.

[27] Cessation, Merriam Webster’s Online Dictionary (emphasis added), https://www.merriam-webster.com/dictionary/cessation [https://perma.cc/B9NT-36GH] (last visited Oct. 12, 2020).

[28] Jeff Zillgitt, Lakers Close out Heat with Game 6 Rout for Record-tying 17^th NBA Championship, USA Today (Oct. 11, 2020), https://www.usatoday.com/story/sports/nba/lakers/2020/10/11/lakers-close-out-heat-win-record-tying-17th-nba-championship/5963370002/ [https://perma.cc/8Z2M-S6JP].

[29] Meredith Cash, NBA Games Have Been Postponed and the Season Is in Jeopardy as the Players Meet to Discuss Future of the Playoffs, Insider (Aug. 26, 2020), https://www.insider.com/nba-games-postponed-not-canceled-season-in-jeopardy-2020-8#:~:text=All%20three%20NBA%20playoff%20games,in%20protest%20of%20police%20brutality [https://perma.cc/5JM8-STT2].

[30] See Adrian Wojnarowski (@wojespn), Twitter (Aug. 26, 2020), https://twitter.com/wojespn/status/1298741301836484609 [https://perma.cc/Y7YY-MWG4] (explaining how the meeting between the players and the NBA “will go a long way toward determining how the players will move forward with rest of season . . . .”).

[31] See Tim Bontemps (@TimBontemps), Twitter (Aug. 28, 2020), https://twitter.com/TimBontemps/status/1299386010489499652 [https://perma.cc/9AU7-KS5R] (reproducing the joint NBA and NBPA statement which established the league’s three commitments to foster social justice).

[32] Nat’l Basketball Ass’n Collective Bargaining Agreement, supra note 14.

[33] See supra Part I.A, Part I.B.

[34] See Bontemps & Andrews, supra note 2 (quoting the Orlando Magic and their owner’s statement in support of the players).

[35] Mark Norris, Mark Cuban Says He’d Support Dallas Mavericks Players Boycotting Games, Fox4 (Aug. 26, 2020), https://www.fox4news.com/sports/mark-cuban-says-hed-support-dallas-mavericks-players-boycotting-games [https://perma.cc/63QR-ZGN5] (noting that Mark Cuban, owner of the Dallas Mavericks, supported the players’ protest).

[36] See Wimbish, supra note 4 (quoting Adam Silver saying he “wholeheartedly support[s] the NBA . . . players and their commitment to shining a light on important issues of social justice.”).