Wednesday October 1st, 2014

The recent arrest of Charlotte Hornets forward Jeff Taylor for domestic violence has left many wondering if the NBA's domestic violence policy is too lenient. Taylor was arrested last week on misdemeanor charges at a Marriott Hotel in East Lansing, Michigan. He allegedly committed a violent act against his girlfriend and also damaged hotel property. The Hornets suspended Taylor indefinitely—albeit on paid leave—while they investigate.  

Below, SI.com examines the current domestic violence policies in place in the NBA and speaks with new NBPA head Michele Roberts about the potential for reform. 

Domestic violence and the NBA's collective bargaining agreement

The NBA has not disciplined Taylor, who is unlikely to receive any punishment from the league anytime soon for at least two reasons. First, he's been charged, not convicted. Second, Taylor's charges are classified as misdemeanors, not felonies. Article VI of the league's collective bargaining agreement is the key section for disciplining NBA players who commit domestic violence. It authorizes NBA suspensions only for players who are convicted or who plead guilty to a violent felony. This is a remarkably tolerant standard for players who commit domestic violence, one of the most difficult crimes to prosecute. Victims of domestic violence often refuse to testify against their significant others, thus denying prosecutors of their most crucial witness.  

Not only is Taylor ineligible for punishment under Article VI, but even if he were eligible, the punishment might seem underwhelming. Taylor would face a minimum 10-game suspension. While a 10-game suspension might sound substantial, it only equates to about one-eighth of the NBA's 82-game season. To put a "one-eighth of a season" suspension in context, consider the NFL's initial suspension of Ray Rice for the first two games of the 16-game season. Rice's suspension was also one-eighth of his season and many found it woefully inadequate.  

Domestic violence and the NBA's constitution

The NBA is not exclusively reliant on Article VI of the CBA to punish Taylor. Article 35 of the league's constitution empowers NBA commissioner Adam Silver with sweeping authority to suspend players for "conduct that does not conform to standards of morality or fair play, that does not comply at all times with all federal, state, and local laws, or that is prejudicial or detrimental to the NBA." Taylor's arrest is undoubtedly detrimental to the NBA. Silver could also impose a suspension of any length under Article 35. Players punished under Article 35, however, can appeal. The appeal entails a grievance process where a neutral arbitrator reviews the commissioner's decision.  

The NBA has been reluctant to use Article 35 absent of extraordinary circumstances, none of which have involved domestic violence. Also, the relatively few players punished under Article 35 have enjoyed moderate success appealing. Consider Jermaine O'Neal and his involvement in the infamous Pistons-Pacers brawl of 2004. Then NBA commissioner, David Stern, used Article 35 to suspend O'Neal for 25 games. On appeal, O'Neal's suspension was reduced to 15 games. Latrell Sprewell's 82-game suspension for choking his coach, P.J. Carlesimo, is also instructive. Sprewell appealed and saw his suspension reduced to 68 games. Article 35 is likely not an adequate substitute for a more robust NBA domestic violence policy.  

The NBA also cannot unilaterally create a new domestic violence policy without exposing itself to potential legal challenge. Rules affecting players' hours, wages and other working conditions must be collectively bargained or they can be challenged under antitrust law. While the NBA might prevail in an antitrust case over a new domestic violence policy, it clearly would rather not litigate. As a result, any changes to the league's domestic violence policy will almost certainly be bargained with the National Basketball Players' Association (NBPA).

Demands for change

Given the limitations of Article VI and Article 35—and the need for collectively bargaining—it is not surprising that Silver has signaled a desire for the NBA to negotiate a tougher domestic violence policy. Many influential NBA commentators, including Bleacher Report's Howard Beck, have also urged the NBA to revamp a policy that seldom leads to league punishments. Despite multiple players in recent years facing charges or accusations of domestic violence, the last player suspended by the NBA for domestic violence was Ron Artest in 2007. The absence of NBA player suspensions for domestic violence reflects a variety of factors, including that the players charged with domestic violence, just like other men charged with domestic violence, often avoid convictions or negotiate favorable deals with prosecutors. Various studies find that between 50-80 percent of domestic violence cases in the United States are dismissed and most of the remaining cases are resolved through misdemeanor plea deals. Remember, Article VI requires a felony conviction or plea.

NBA's domestic violence policy will be first major test for Michele Roberts 

The NBA's interest in adopting a more scrutinizing domestic violence policy puts Michele Roberts, the new executive director of the NBPA, in a conflicted spot. On one hand, Roberts is keenly aware that domestic violence prevention has become a top priority in professional sports. Along those lines, Roberts would risk the wrath of media, fans and possibly lawmakers if she voiced opposition to a tougher policy. Even mild reservations could be instantly misconstrued on social media as Roberts "going soft" on domestic violence or worse. Notice how the NFLPA and its executive director, DeMaurice Smith, essentially acquiesced to the NFL unilaterally adopting a new domestic violence policy in August. Many believed the NFLPA was cornered into a position where it could say little or risk being portrayed as tolerant of domestic violence.  

On the other hand, Roberts owes fiduciary duties to NBA players to maximize their employment interests. This means she may need to advocate socially unpopular positions from time-to-time. Her constituency is not you or I—but the NBA players. In that vein, Roberts should want "something" in return from the NBA. This is how bargaining between leagues and players' associations works: each side gives and each side takes. Usually this bargaining occurs as both sides negotiate a new CBA, where everything is on the table. In the next round of labor negotiations, for example, the players' association might agree to raise the NBA's age limit to 20 years old, or assent to stricter drug testing. In exchange, the NBA might agree to raise minimum salaries or improve health care benefits for retired players. This is the "give and take" of collective bargaining.  

 

The next round of CBA negotiations, however, won't occur for at least two years, and possibly five years. The current CBA runs through the 2020-21, but either side can terminate the CBA on June 30, 2017. To exercise the early termination clause, the side that seeks to opt out must notify the other by December 15, 2016. If either intends to invoke the early termination clause, there would likely be labor negotiations during the fall of 2016 or perhaps ever during the summer of 2016. But not anytime soon.  

The danger for Roberts to negotiate a new domestic violence policy during this current period of labor harmony is that everything isn't on the table. In fact, Roberts might not be able to extract any concessions from the NBA, as the league would likely express concerns about changing rules unrelated to domestic violence. You might argue that now isn't the time or place for Roberts to bargain, as domestic violence is too critical an issue to postpone. You might also argue that Roberts, as a new leader, has not yet earned the stature to play hardball on such an important topic. I disagree. This is precisely where Roberts must demonstrate that she will protect the interests of those she represents: NBA players, not fans, not media and not the NBA.  

Players' associations agreeing to renegotiate conduct policies as standalone issues also has a murky record. Recall in 2006 when newly-hired NFL commissioner Roger Goodell demanded a stricter personal conduct policy after several players, including Adam "Pacman" Jones, Chris Henry and Tank Johnson were arrested. At the time, NFL players were perceived as out-of-control, even if only a small percent of players were actually getting in trouble. Goodell negotiated a personal conduct policy with NFLPA executive director Gene Upshaw that overwhelmingly favored the NFL. More importantly, Goodell would be accorded total discretion in determining whether a player's personal conduct warranted a punishment and, if so, the appropriate punishment. Players' appeals of Goodell's punishments would be made to Goodell, who since has been described as "judge, jury and executioner." It is not clear what, if anything, Upshaw received in this exchange on behalf of the players.  

Possible unintended consequences of changing the NBA's domestic violence policy

Roberts and Silver should also be cautious when rewriting personal conduct rules that are largely dependent on a system they don't control: the legal system. While the NBA and teams have substantial capacity to investigate players, it is not without limits. Prosecutors, for instance, may be unwilling to share crucial evidence, such as videos or text messages, with a private association like the NBA. Internal investigations by leagues and teams also lack subpoena powers, meaning the NBA cannot compel production of evidence. Witnesses who speak to private investigators, moreover, are not under oath and thus can lie without fear of committing perjury.

These are not abstract worries. Think about the NFL's flawed investigation into Rice. Goodell asserts the NFL never possessed an elevator tape of Rice punching his then-fiancée, Janay Palmer, and was stonewalled trying to get it. The Associated Press, however, claims the league had the tape since April while other reporting indicates Rice privately told Goodell about the elevator incident himself. It's not clear who, if anyone, is really telling the truth. What is clear is that informal and extra-legal devices for leagues to obtain evidence can put those leagues in compromised positions.  

Roberts—a former public defender—will likely also oppose any changes to the NBA's domestic violence policy that could lead to punishments in the absence of convictions or guilty pleas. The reasoning is simple: sometimes people are wrongly accused. In an interview with SI.com, Roberts made clear the limits of any changes until the next round of collective bargaining. “We have already addressed these issues in the CBA,” Roberts told SI.com. “There are existing policies in place that were negotiated. That said, we would be open to discussions about increased training and education and, most importantly, developing strategies to prevent domestic violence from happening in the first place." Roberts expressed opposition to changing the penalty scheme, however, until there is a new round of collective bargaining.  

Some commentators have highlighted the Celtics suspending Jared Sullinger in 2013 for an altercation with his girlfriend as a blueprint for addressing NBA players implicated in domestic violence. Yet Sullinger's situation is unlike the one facing Taylor. The Celtics only suspended Sullinger after criminal charges were dropped, meaning the suspension could not have prejudiced the criminal case against Sullinger or tainted a potential jury pool. It was also a one-game suspension that Sullinger, who acknowledged he could have used better judgment, accepted without opposition. What happens if the NBA or a team suspends a player while criminal charges are still pending? Would prosecutors subpoena the NBA or the player's team for its investigatory findings and then use the evidence against the player? Or what happens if a player adamantly denies the accusation? Is a league or team really in a position to know if the player is lying or telling the truth? Does it want to be in that position?

It is also worth noting that there is no statistical evidence that NBA players, or players in the NFL, NHL or MLB for that matter, commit domestic violence at rates higher than other men in the same age groups. In fact, the vast majority of players in these leagues appear law-abiding. Domestic violence is not an "athletes' problem." It is a human problem, likely made worse by a legal system that makes prosecuting domestic violence cases challenging.  

None of this is to claim the NBA's current domestic violence policy is necessarily sufficient. Changing the requirement of a felony conviction or felony plea to include misdemeanors is a logical step. Increasing the suspension from "at least 10 games" to a higher and more definitive number, such as 25 games, could also better deter misconduct. Roberts told SI.com in a situation where a player confesses but isn't convicted (for whatever reason), the player might deserve NBA punishment. Elevating existing requirements for player counseling and education are also sensible changes. But any possible change deserves thorough vetting and alterations to penalties probably will not occur until the next CBA. Sometimes solutions to problems create new problems. Roberts and Silver, both of whom are talented attorneys, are likely to tread carefully and at a slower pace than what the public may demand.  

Michael McCann is a Massachusetts attorney and the founding director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law. He is also the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law.

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