Today’s guest columnists are Seton Hall University’s Charles Grantham and Robert Boland.
When the results of the NBA-commissioned external investigation into the Phoenix Suns and the WNBA’s Phoenix Mercury owner Robert Sarver were revealed, an outcry erupted based on acts of hostility directed at African-Americans and women in the workplace detailed in the report. Sarver clearly had no way back, and soon announced that he was in the process of selling both franchises.
Sarver’s ownership has had real human costs for the sport and must lead to permanent changes in the way the NBA and other major sports deal with owners. Sarver is not the only example of egregious owner misconduct, but he should become the example that prompts change.
It is important to absorb the human cost of Sarver’s tenure. Writing to Culture in sport weblog, Dr. Jeremy Piasecki, whose expertise is in toxic workplace environments, calculated the more than 17 years of hostility directed at African-Americans and women as 6,200 days of racialized, misogynistic, and horrific behavior documented from Sarver and d other people at their workplace.
That brings us to the players and their union, the National Basketball Players Association (NBPA). Sarver’s conduct should have spilled over into the players’ lives and careers, and it raises some critical questions about where this is going and how a resolution can be reached that will protect the NBA, its players, and everyone your employees of the future Sarvers. It is the players who wield the most influence and have the most options at their disposal to create a better future.
Sarver doesn’t just own a team or hire players: NBA owners are in partnership with their players. They have a revenue sharing partnership, which has been collectively bargained, meaning they make money for each other. When an owner’s behavior affects revenue, it is the duty of the players and the NBPA to hold that owner accountable.
What can players do?
Players should be entitled to various remedies and should seek to enforce their rights as part of a process that accounts for Sarver’s damages and prevents those damages from being repeated in different markets with different owners.
The first of those is an immediate forensic audit of the Suns by the NBPA dating back to 2004, when Sarver took over. Sarver’s actions were part of a repeated and unacceptable pattern of behavior that undermined trust in all dimensions. The union must push for the full effects of this behavior on the players and the franchise to be uncovered.
Players can also seek help from the National Labor Relations Board (NLRB). The current Biden NLRB is as pro-union as any in recent memory, and the question of whether the behavior of Sarver and his leaders with the Suns and Mercury diminished the federal protections enjoyed by players under Section VII of the National Labor Relations Act (NLRA). ) is relevant. It’s hard to imagine that players’ rights weren’t affected when Sarver frequently and freely used racist and misogynistic language, or that decisions weren’t made based on those comments that chilled or diminished players’ rights. Former players and the NBPA should consider using unfair labor practice charges against Sarver and, by extension, the NBA. This will not provide a blanket resolution, but it will bring the weight of the federal government to the resolution process. None of these potential remedies were used with Donald Sterling in 2014. They should be now.
Finally, the NBPA must demand amendments to its Collective Bargaining Agreement (CBA) and league constitution that define grounds for owners’ behavioral violations, specifically acts of racial and sexual discrimination, and create protocols to address such violations if they occur.
This is uncharted territory in professional sports labor management agreements. But the effects of owner misconduct are deeply felt, and league commissioners are forced to crack down on recalcitrant owners for fear of causing a loss of franchise value. The time has come to amend sports’ most important documents to include owner behavior.
Reform of government structures
All of this points to the need for constitutional and CBA reforms both to prevent this type of behavior and to deal with future events more effectively.
NBA commissioner Adam Silver is nothing short of forward thinking. He must be reading the tea leaves and knows that Congress can impose more severe government solutions on his landlords if he can’t fix it himself. He has already taken the unique step of creating the Joint NBA Social Justice Coalition to address critical societal inequities.
One solution to the previous collective bargaining would be to create a special master to adjudicate conduct that is antithetical to the league’s positions on race and gender. Special masters had been used effectively to solve thorny problems in the NBA and NFL in years past. The NBA and NBPA had a long and successful experience referring certain collective bargaining issues for resolution by a special master during some of their best years in the 1990s, but the more friendly CBAs management eliminated the supervision of special teachers. Taking this step now on discrimination issues would ensure confidence in the outcome, whether the case involves an owner, coach or player, and would build confidence that all franchises take these issues seriously and that initiatives like the Coalition for Justice Social, and so many others proposed by the professional leagues, are more than simple symbols.
The NBA and the other major professional sports leagues should follow suit with these reforms. Harnessing Sarver may quell calls for reform, but only for a moment. It won’t end the risk of Sarver-like behavior or the threats posed by bad owners, but significant reform in the league’s collective bargaining and constitutions will.
Charles Grantham is director and associate professor of the Center for Sport Management at the Stillman School of Business at Seton Hall University. He previously served as the first executive director of the National Basketball Players Association.
Robert Boland, JD, is a member of the faculty at Seton Hall University School of Law and of counsel at the law firm of Shumaker, Loop and Kendrick, where he practices employment and sports law.