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The Basketball Court
The NBA needs an independent body to resolve controversies on and off the court
David Fontana is the Samuel Tyler Research Professor of Law at the George Washington University School of Law. David Schleicher is a Professor of Law at Yale Law School. They have written an academic article on the need for a Basketball Court.
Ja Morant is a superstar guard for the Memphis Grizzlies known for defying the rules of gravity on the court during NBA games. But now he is in serious trouble for violating the rules of the NBA off the court.
During an Instagram live video posted last month, Morant was featured brandishing a firearm. The NBA has a Constitution that authorizes the NBA Commissioner to discipline players for engaging in “conduct… that is prejudicial or detrimental to the Association.” Morant certainly violated that rule, leaving it up to NBA Commissioner Adam Silver on his own to decide what type of punishment best fits the situation.
Silver suspended Morant for 25 games, costing Morant — as well as the city of Memphis and the NBA — millions of dollars.
Figuring out whether Silver’s punishment was right depends on how the NBA Constitution is interpreted. No NBA player has ever been suspended more than 10 games for a firearms violation, and Morant was suspended 25 games. This was the first time an NBA player was suspended for firearms possession without also facing criminal liability. On the other hand, this was the second time that Morant filmed himself with a gun, which suggests that Morant’s conduct was particularly detrimental to the NBA.
Governments have a tool for resolving complicated questions like these about how to best interpret their foundational rules: courts. Governments rely on courts to help them interpret and apply their laws. The assumption is that governments that care about the rule of law must also have and care about courts.
Sports leagues should do the same. Courts can be useful for sporting organizations trying to make their sports into a more consistently governed — and therefore more appealing — product for the fans of the sport. The NBA, for instance, can have its very own “Basketball Court,” a panel of eminent figures independent from the daily operation of the business of basketball appointed to determine and explain how basketball should resolve these controversial issues.
The rules of the game
The NBA’s rules aren’t laws, but they are a lot like laws. They are announced in advance of an NBA season and they bind the league’s decision makers, even if not following them would create short-term profits by, say, letting a big market team advance in the playoffs. In addition to the 92-page NBA Constitution, the league is governed by the series of rules featured in the Collective Bargaining Agreement, the Rulebook, and other written documents. Other sporting organizations are similar in the breadth and depth of their rules. NBA fans might not know all of the rules, but they do expect them to be applied consistently.
They know a foul called for physical conduct should be the same regardless of whether that conduct was by a famous player like LeBron James or by the rookie guarding him. Who touched the ball last before it goes out of bounds should be a question resolved the same way regardless of whether it is a small-market team like the Indiana Pacers that touched it last or a big-market team like the Golden State Warriors. The fairness of these decisions drives consumption decisions. No one wants to watch a rigged game. And consistency drives people to become the type of rabid fan that leagues depend on for revenue — that type of emotional and financial investment doesn’t make sense if you know your team can’t win. There aren’t too many people buying Washington Generals jerseys.
The deep financial interest that many major sports (let’s not talk about wrestling!) have in generating this consistency is why they express such a strong commitment to that consistency in public. Former NBA Hall of Fame player Joe Dumars is now in charge of rule enforcement in the NBA and has stated that NBA rules are supposed to be applied with “consistency” according to “precedent” so that “people know you’re fair about this.” When that consistency is called into question publicly, the reaction is often swift and significant. During a controversial ending to a game against the prominent Golden State Warriors in March, Dallas Mavericks superstar Luka Dončić made a gesture suggesting that the referees were favoring the widely loved Warriors. Dončić was immediately fined.
While leagues have law-like rules, they do not have court-like institutions to interpret them. It is hard for a private corporation to actually apply its own rules in a consistent manner, particularly when being inconsistent would juice profits in the short run. Corporations are led by chief executives like NBA Commissioner Adam Silver who are hired — and can be fired — based on their capacity to generate short-term revenues for the company rather than to generate longer-term consistency. Chief executives also make decisions in silence or by press release, not through the kinds of statements that help give us a sense of which principles are guiding them now and will bind them later. Corporations can have independent members on the board of directors or can hire an outside law firm on a temporary basis. But neither of these arrangements generates an independent institution dedicated over the long term to the consistent application of corporate rules, nor the explanation of and therefore commitment to how those rules should be applied in the future.
The NBA needs a different kind of court
By contrast, a private supreme court like a Basketball Court would feature individuals selected because of their training in and commitment to the consistent application of foundational rules.
These individuals would be given the job security that judges usually have, thereby directing their attention to the next case rather than to their current or future employer. They can give reasons for their interpretations of corporate rules, which would be binding precedents, thereby letting others know how future situations will be resolved. They would handle appeals of referee rule interpretations involving situations on the court and league suspension decisions for behavior on and off the court. Arguments could be streamed online, making league decisions transparent and providing some good programming for ESPN, too. Proceedings might even provide a civic education for the general public about how courts work. Its decisions would be prior to any potential appeal by players under the Collective Bargaining Agreement (allowed for some suspension decisions, for instance, but not others, and not for in-game decisions), but the fact that decisions were reviewed by independent figures and explained in judicial opinions would make them more legitimate in the eyes of players and fans alike.
A Basketball Court could also help develop the rules of the NBA when teams or players push the limits of those rules. Because its decisions would be in response to specific situations, Basketball Court decisions could happen more quickly than the annual process by which the NBA updates its rules. When James Harden developed his “pick and troll” move to draw defensive fouls, it took years for the league to respond. A Basketball Court could move more quickly, deciding cases after another team chose to appeal a referee’s interpretative decision. Having a Basketball Court could even inspire the league to write better rules. For instance, the NBA automatically suspends players if they leave the bench during a brawl, even if they are not involved in the action at all, famously leading to playoff defeats for the Phoenix Suns in 2007 and the New York Knicks in 1997. The rule is meant to send a clear message, but doesn’t allow for any nuance — it is, to quote Bill Simmons, a “stupid, idiotic, foolish, moronic, brainless, unintelligent, foolhardy, imprudent, thoughtless, obtuse and thickheaded rule.” If the NBA had a Basketball Court to rely on to fill in the details, it could write a less stupid rule, simply barring involvement in brawls, and let the Court develop the rule in a case-by-case fashion.
A “private Supreme Court” internal to a single business or organization may seem like a weird idea. But it is far from unprecedented. Many readers will be familiar with the decision by Meta (formerly Facebook) to create the “Oversight Board” in 2018, a quasi-court created to review appeals of decisions by Facebook to take down posts. It has faced challenges as a private supreme court regulating speech, but it has still demonstrated that a private supreme court could apply private business rules.
A private supreme court wouldn’t make sense for most businesses. In most cases, being able to treat customers or clients differently from one another allows businesses to engage in profitable price discrimination. Announcing rules in advance can stand in the way of executives seizing on profitable opportunities.
But sports are different. The late Major League Baseball Commissioner and President of Yale University A. Bartlett Giamatti once remarked that “if participants and spectators alike cannot assume integrity and fairness, and proceed from there, the [sporting] contest cannot in its essence exist.” This is part of the reason why many countries have a cabinet-level position devoted to ensuring that sporting rules are applied consistently, as governmental rules are.
Indeed, sports leagues have long understood the need for some kind of judicial authority. The first commissioner in American professional sports was Kenesaw Mountain Landis, hired by Major League Baseball in 1920 in the wake of a gambling scandal that jeopardized the sport. Landis was hired in large part because he was a sitting federal judge at the time. In fact, he tried to remain on the bench after becoming Commissioner to generate the impression that he was a “judicial” commissioner. Chief Justice John Roberts even referenced baseball umpires during his confirmation hearing to the Supreme Court as an analogy to judging.
One of the most important ideas about government is that power should be diffused among important people in the government to ensure that it is exercised effectively. It turns out that what is good for big government would also be good for big companies. The separation of powers not only should be foundational for our government, but for some of our companies, too. Courts have an important role to play in that separation.