Could the L.A. Clippers Have Boycotted Their Playoff Games Legally?
Over the weekend, after the release of audio files documenting racist comments made by Los Angeles Clippers owner Donald Sterling, players on the Clippers considered boycotting their upcoming playoff game in protest. The team ultimately decided to wait until NBA Commissioner Adam Silver had a chance to respond, but behind the scenes players across the NBA began planning to boycott the rest of the playoffs if Silver let Sterling off the hook. This boycott never materialized either; after Silver announced Sterling’s punishment, the NBA Players Association favorably (and perhaps hyperbolically) compared the announcement to the integration of baseball or Tommie Smith and John Carlos’s Olympic black power salute. But if a boycott had occurred, as some critics online wished, what punishment could the players have faced?
Anything from a fine to perpetual disqualification from the NBA. As Slate reported back in 2010, healthy NBA players are legally obligated to play basketball when asked. Today, this obligation comes from three agreements: (1) the players’ individual contracts, (2) the 2011 collective bargaining agreement (CBA) between the NBA Players Association and the NBA, and (3) the NBA Constitution.
Under the NBA Uniform Player Contract, which each player signs with his team, Paragraph 2 requires the player to participate in all practices, meetings, workouts, and games, including “Playoff games scheduled by the League.” Moreover, Paragraph 5 establishes that each player is obligated to “give his best services, as well as his loyalty, to the Team,” including by agreeing “not to do anything that is materially detrimental or materially prejudicial to the best interests of the Team or the League.” Should a player fail a “faithful and thorough discharge of the duties incumbent upon the Player,” Paragraph 5 gives the team the power to “reasonably impose fines and/or suspensions on the Player.” In addition, should a player “at any time, fail, refuse, or neglect to render his services hereunder or in any other manner materially breach this contract,” Paragraph 16 gives the team the power to terminate the contract, including any obligation to continue paying the player. Considering that Donald Sterling owned and controlled the Clippers before Silver’s announcement, these punishments were not idle threats.
Notwithstanding these clauses, the players’ right to boycott a game for political purposes could theoretically remain protected by Section 7 of the National Labor Relations Act. But under Article XXX of the 2011 CBA signed between the Players Association and the NBA, the players collectively waived their right to “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.” Moreover, the Players Association and its members agreed that they “will not engage in any concerted activities to breach, induce the breach of, or threaten to breach or induce the breach of, any Player Contract.” A league-wide effort approved by the Players Association to boycott games could therefore amount to an illegal strike in violation of the CBA, giving the NBA latitude to sue the Players Association for any lost revenue resulting from the boycott. And if players organized a boycott without union approval, the NBA could still attempt to seek damages from the union or seek an injunction against the “wildcat” strikers to compel them to play.
Finally, suppose the NBA players took to the floor but refused to play well — throwing up bricks in protest of Sterling’s ownership. In that circumstance, Article 35 of the NBA Constitution — which players agree to abide by in their Uniform Player Contracts — establishes what seems like the most draconian punishment. Article 35(b) states: “The Commissioner shall direct the dismissal and perpetual disqualification from any further association with the Association or any of its Members, of any Player found by the Commissioner after a hearing to have been guilty of offering, agreeing, conspiring, aiding or attempting to cause any game of basketball to result otherwise than on its merits.” This language is written in mandatory terms — the Commissioner shall — but was likely written to apply to a Chicago Black Sox situation in which players agreed to throw the game for financial reasons. Still, the Commissioner could theoretically invoke this clause if players purposefully played poorly. Even if Article 35(b) did not apply, Article 35(d) gives the Commissioner discretion to fine or suspend any player who engages in conduct “that is prejudicial or detrimental to the [NBA].”
Accordingly, if NBA players had boycotted or thrown their playoff games, they would have faced a wide range of discretionary and mandatory penalties. In this respect, the Players Association’s invocation of Tommie Smith and John Carlos’s famous black power salute would have been apt: although the two sprinters are remembered fondly now, both athletes were suspended from the U.S. Track and Field team and faced vilification and financial hardship for their political action at a purposefully apolitical event. The fact that NBA players not only considered boycotting their games but actively planned to do so in the face of similar sacrifices underscores a perceived need for collective action in even the most unconventional of workplaces. As John Carlos was quoted as saying before his 1968 salute, “We knew that what we were going to do was far greater than any athletic feat.”