• What will the investigation into the Mavericks look like and how could it change the landscape of the NBA?
By Michael McCann
February 23, 2018

The Sports Illustrated investigative report on allegations of sexual misconduct by Dallas Mavericks employees has led Mavericks owner Mark Cuban to hire lawyers to conduct an investigation. A source familiar with the NBA’s oversight of team matters has shared insight with SI on how the investigation will work and on other aspects of the league’s potential response—including possible punishments of both the Mavericks and Cuban.

There are good reasons for the NBA to believe that the investigation commissioned by the Mavericks can be thorough and complete

Much has been made about whether an investigation commissioned by the Mavericks—dubbed “independent investigation” by the team—can credibly investigate serious accusations against the Mavericks. To that end, some wonder whether lawyers paid by Cuban would feel empowered to reach conclusions that might contradict the 59-year-old billionaire. Attorneys, after all, are professionally obligated to be advocates for their clients.

Cuban told SI’s Jon Wertheim and Jessica Luther that he knew nothing about the misconduct of former Mavericks CEO Terdema Ussery, who worked under Cuban from 2000 to 2015, or that of other employees. Cuban—who in 2011 authored a book titled “How to Win at the Sport of Business: If I Can Do It, You Can Do It”— explained that his entire focus since buying the Mavericks in 2000 has been on basketball operations. Cuban says he has not paid close attention to the team’s business operations. Several former Mavericks employees told SI that they doubt Cuban’s claims of innocence, but no evidence has (yet) surfaced which suggests that Cuban has been untruthful.

But there are good reasons for the NBA to be optimistic that the outside investigation will be extremely thorough and objective. For one, the Mavericks have hired two out-of-state attorneys with deep expertise, impeccable reputations and no apparent ties to Cuban or the Mavericks. Evan Krutoy, a former Manhattan prosecutor who successfully tried homicide and sex crime cases, and Anne Milgram, a former Attorney General of New Jersey and assistant U.S. Attorney, will lead the probe.

Krutoy and Milgram, the source tells SI, “have national reputations to uphold” and would not have agreed to take on their roles unless they were assured complete and unfettered access. They also, undoubtedly, demanded the autonomy to reach any conclusion from where the facts lead. The league will also value that Krutoy and Milgram work at different law firms. Such an arrangement makes it more likely that investigative findings and testimonies will be studied from multiple perspectives. Put more bluntly, if Cuban wanted a sham investigation, there’s no way he would have hired Krutoy and Milgram.

Second, the NBA will insist on “full and complete access” to all materials, evidence and testimonies uncovered in the investigation. As the league has already stated publicly, it will carefully monitor the investigation as well. If, for any reason, the commissioner’s office believes it is being stonewalled by the investigation, the commissioner’s office will likely take over the investigation.

Why the league will give Cuban the benefit of the doubt

The most-asked question in response to the Mavericks story has been, “How could Cuban not have known?” It’s a fair question, particularly given that Cuban has built a reputation as a hands-on owner who, at times, seems like a de facto coach or general manager. Plus, as mentioned above, several former Mavericks employees opined to SI that their former boss must have known.

The Striking Contrast Between the Mavs and Panthers In Crisis

While it would be fair for the NBA to have a healthy dose of skepticism of Cuban’s account, there are also good reasons for the league to give Cuban the benefit of the doubt.

First, Cuban’s initial reaction to the allegations suggests that he genuinely did not know. Cuban was clearly caught off guard by SI and instead of becoming defensive and deflecting the inquiry to his attorneys, he accepted blame, openly demanded to know all of the facts and invited threatening outsiders—former prosecutors—to review his entire team operations. League officials, a source tells SI, will certainly take note of Cuban’s reaction. While they will reserve judgment, they will likely regard Cuban’s reaction as a positive step and one consistent with someone who genuinely wants to remedy the situation.

Second, the facts are not yet in on Cuban’s level of involvement with the business operations staff of the team.  It wouldn’t be the first time that the perception of a leader’s day-to-day involvement is different than the reality.

Third, it is noteworthy that Ussery’s misconduct was not necessarily obvious to everyone who worked for the Mavericks. After Ussery spent 18 years working for the Mavericks, Under Armor hired him as president for global sports. Presumably, the company conducted a thorough background check before hiring him to a senior level position. Such a background check would have involved phone calls to multiple Mavericks’ officials. While those officials were not legally obligated to disclose wrongdoing, it appears that none shared anything alarming about Ussery.

Parallels to the Donald Sterling situation are misplaced

The NBA, a source tells SI, will not regard the Donald Sterling fact-pattern as analogous to the one currently involving Cuban.

With Sterling, the owner was directly engaged in the relevant misconduct. Sterling had been caught on tape making overtly racist remarks, including those where he discouraged his mistress and business associate, V. Stiviano, from attending Los Angeles Clippers home games with African-Americans. Sterling’s remarks were extraordinarily harmful to the league and its players. For example, players threatened to boycott games and sponsors threatened to pull their deals. Further, Sterling offered unsatisfying and sometimes bizarre defenses, such as telling CNN’s Anderson Cooper that he wasn’t racist because African-Americans wanted to play golf with him. Only making matters worse for Sterling, instead of accepting responsibility for his misconduct, he attempted to deflect blame by filing quixotic lawsuits against NBA commissioner Adam Silver, the NBA and Sterling’s wife of six decades, Shelly Sterling.

With Cuban, he is not implicated in any misconduct. Instead, his alleged lapses relate to oversight – failing to know what he should have known. This is of course important, but not the same as Sterling.

The difficulties of formulating a potential punishment of Cuban and the Mavericks

The NBA is unlikely to punish Cuban or the Mavericks anytime soon. The league will want the investigation to be as thorough and complete as possible. After a number of weeks or possibly months, Krutoy and Milgram will produce a report. Silver will weigh the report in evaluating whether to issue punishments and if so, what type of punishments.

If Silver concludes that punishments are appropriate, none of the traditional penalties imposed by the NBA may seem fitting. The league, for instance, could impose a multi-million dollar fine on Cuban and the Mavericks. However, given that Cuban is reportedly worth around $3.7 billion, it’s not clear that such a fine would prove all that impactful, nor would it necessarily deter the underlying misconduct from re-occurring.

The league could also take away draft picks from the Mavericks. The NBA has taken away and transferred draft picks in the past. For instance, in 2000, then-NBA commissioner David Stern stripped five first-round picks from the Minnesota Timberwolves because the team had attempted to circumvent the salary cap in signing forward Joe Smith. More recently, in 2012, Stern required that the Oklahoma City Thunder transfer a second-round pick to the Boston Celtics as a punishment for failing to fully disclose pertinent health information about Jeff Green when trading the forward to the C’s. 

While a draft pick punishment would hurt the Mavericks, it’s not clear why it would be suitable. In the past, such a punishment was assigned due to a violation of competition and fair play rules. With the Mavericks, the wrongdoing has nothing to do with basketball or games.

With these constraints in mind, all remedies will be on the table for the NBA should the league decide to issue a punishment. One possible analogy may be derived from how the federal government punishes banks for wronging consumers. The banks are often fined—sometimes quite substantially—and are also sometimes subject to other kinds of penalties, such as stricter reporting and compliance requirements and loss of eligibility for government incentive programs. With that in mind, the NBA could fine the Mavericks and/or Cuban and also impose tighter controls and compliance requirements on the team and its operations.

The NBA declining to punish Isiah Thomas and the Knicks is not seen as relevant precedent

The Mavericks are not the first NBA team accused of failing to stop and remedy a hostile workplace where women are subjected to harassment.

In 2011, a jury awarded $11.6 million in damages to former Knicks employee Anucha Browne Sanders. Sanders had sued Knicks owner James Dolan, Cablevision (the parent company of the Knicks and Madison Square Garden) and former Knicks coach Isiah Thomas over claims related to a hostile work environment and retaliation. The case was settled thereafter before appeal. Then-commissioner David Stern declined to impose any additional punishment on the Knicks or Thomas.

Why Hasn’t the NBA Solved Its Isiah Thomas Problem?

A source tells SI that the Thomas situation is not in any way binding or even instructive on how the NBA will address the Mavericks. The two teams’ situations are factually different and are also occurring in very different times. To that point, the #metoo movement has significantly changed how organizations respond to allegations to sexual misconduct. Expect that to factor into how the NBA handles the Mavericks situation.

The NBA will do all it can to stop team workplace misconduct, but ultimately, each team is its own business

As detailed earlier this week, the NBA has, since Silver became commissioner in 2014, made gender equality and enhancing leadership opportunities for women top priorities. For that reason, the Mavericks situation is likely especially disappointing to league officials.

The league, however, cannot control or monitor every aspect of each team. Each of the 30 teams is its own business. Each is independently owned and run in its own way, with different leadership structures, organizational charts, workplace policies and employment procedures. Teams’ employees don’t work for the NBA. And in most cases, they don’t report in any direct way to the NBA.

NBA Launching Confidential Hotline for Workplace Misconduct

Mindful of these constraints, the league attempts to offer as much information as possible to each team. For instance, the league routinely collects best practices and procedures and shares them with teams. The league also attempts to set an appropriate tone for teams by adopting smart workplace policies for NBA employees and prospective employees.

To further that cause, the league hopes that the creation of a hotline will help it gather information. The hotline allows employees of teams and the league to relay any concerns about workplace misconduct. The aspiration is that employees who feel like they are forced to endure abusive behavior will call the hotline.

The NBA will not likely audit all teams for workplace matters

One possible response by the NBA to the Mavericks situation might be to audit all 30 teams for workplace conduct issues. The league might reason that if the problem exists with the Mavericks, it could exist elsewhere.

A source makes clear, however, that such an approach would likely only occur if there was evidence of a pervasive problem with other teams. For now, the NBA is hyper-focused on learning all of the facts with the Mavericks and using them to remedy problems in that workplace. If the league learns through the hotline or through other channels of a widespread problem, it will react accordingly.

Michael McCann, SI's legal analyst, provides legal and business analysis for The Crossover. He is also the Associate Dean for Academic Affairs at the University of New Hampshire School of Law and co-author with Ed O'Bannon of the new book Court Justice: The Inside Story of My Battle Against the NCAA.

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