The Miami Heat have suspended Dion Waiters 10 games for conduct detrimental, but the incident that sparked the suspension could lead to further league action.
Last Thursday, Waiters experienced a panic attack while he and his teammates flew on a chartered flight from Phoenix to Los Angeles. According to ESPN, the attack was triggered after Waiters had consumed a THC-infused edible. The 27-year-old guard, who was the fourth overall pick in the 2012 NBA Draft, experienced an adverse reaction and required medical attention. The suspension will cost Waiters $834,483 in forfeited salary. It will also deny him a chance to obtain a $1.2 million bonus that is pegged to Waiters playing in at least 70 regular-season games.
In other words, eating the edible is going to cost Waiters about $2 million.
Waiters had been a disappointment to the Heat prior to the flight incident. Two years ago, Heat President Pat Riley signed Waiters to a four-year contract worth a guaranteed $47.3 million and a maximum of $52 million. Riley was encouraged by Waiters’s impressive play during the ’16-’17 season, when the former Syracuse star scored 16 points per game and connected on nearly 40% of his three-point attempts. Age-wise, Waiters also appeared to be entering his prime years as an NBA player.
The Heat’s investment didn’t pay off. Waiters’s three-point shooting and other statistics dropped over the last couple of seasons. His behavior has also been problematic. In fact, this is his second conduct detrimental suspension during the ’19-’20 season. A few weeks ago, the Heat suspended Waiters for the season opener against the Memphis Grizzlies. The suspension reflected Waiters arguing with Heat coach Erik Spoelstra and unwisely attempting to ridicule his coach on Instagram.
The Heat are authorized to suspend Waiters under paragraph 5 of the uniform player contract. Paragraph 5 expresses that a team can impose a “reasonable" fine or suspension when a player fails to “to conduct himself on and off the court according to the highest standards of honesty, citizenship, and sportsmanship” or when he partakes in behavior that is “materially detrimental or materially prejudicial to the best interests of the team or the league.”
As explained below, both the Heat and NBA have reasons to regard Waiters’s alleged misconduct as damaging to the images of the team and the league.
The murky legal topic of THC and marijuana—especially when crossing state lines
Consumption of a THC-laced edible, or gummy, might seem like a fairly innocuous act as the 2020s approach. You might believe it is undeserving of a suspension that will cost Waiters 12% of the entire regular season.
NBA teams and the league have reason to disagree, particularly since if Waiters consumed the edible while on the flight, he likely committed a crime—technically, at least.
THC, which stands for tetrahydrocannabinol, is one of many compounds found in marijuana. THC and marihuana (also known as marijuana and cannabis) are classified as a Schedule I drug under the federal Controlled Substances Act. As the U.S. Drug Enforcement Administration has made clear, this classification is appropriate whether TCH is in natural or synthetic form. THC provides the “main psychoactive compound” in marijuana. THC thus supplies the “high” that people sometimes experience when consuming marijuana products. THC can be used with other marijuana compounds, including cannabidiol or CBD, to treat health conditions.
Classification of a drug under Schedule I is a “big deal.” It means that the federal government regards the drug as having no accepted medical use. It also means the drug is considered dangerous due to a high potential for abuse. Heroin, LSD and Methylenedioxymethamphetamine (ecstasy) are, like marijuana, listed as Schedule I drugs.
A federal charge for possession of THC (or marijuana) is possible when the person travels with the drug across state lines. Generally speaking, once a person crosses from one state into another in furtherance of an unlawful act, the federal government gains jurisdiction to seek federal charges against that person. A first-time federal offense for marijuana possession carries a potential sentence of up to one year in jail.
Despite the Controlled Substances Act outlawing THC and other marijuana compounds, the federal government has essentially acquiesced to states opting to legalize and regulate marijuana for recreational use and/or for medicinal use. States that legalize marijuana are expected to adopt regulations that restrict the eligibility of purchasers (such as imposing a minimum age requirement) and that create a sensible framework for licensing vendors of marijuana. States are also expected to develop enforcement mechanisms to ensure that marijuana products produced and sold in one state do not enter other states, particularly those where marijuana remains illegal.
According to one recent count, 11 states and the District of Columbia have legalized marijuana for recreational use (which includes medicinal use) while another 23 states have legalized it for limited medicinal uses. Those medicinal uses often require a prescription by a physician and obtaining a patient registration card from a state agency. Sixteen states, most of which are in the South or Midwest, continue to ban marijuana for any use.
Where did Waivers eat the edible? And does it matter?
Waiters boarded the 90-minute flight in Arizona, where marijuana is only legal for physician-approved medicinal uses. Arizona users, in fact, must acquire a patient registration card from Arizona’s Department of Health Services in order to legally consume marijuana. Unauthorized possession of marijuana in Arizona is a felony offense.
Waiters’s flight landed in California, where marijuana is generally legal for usage by adults. It’s not clear over which state or states the plane was flying while Waiters allegedly consumed THC.
However, that distinction likely doesn’t matter. If Waiters consumed the gummy while over Arizona’s airspace, he would have committed an act that violates Arizona law. If he consumed it over California’s airspace, he would have crossed state lines while in possession of the edible, thereby triggering federal oversight. Also, criminal acts that occur on domestic flights fall within the jurisdiction of the Federal Bureau of Investigation, which enforces federal laws.
One way or another, Waiters likely broke the law if he ate a THC-infused edible while on the flight.
Unless the story is more complicated than it appears, the odds of Waiters being charged with a crime are extremely low. There is no evidence that he was transporting marijuana for sale or for any purpose other than his own consumption. There is also no indication that law enforcement is interested in what happened.
Perhaps most importantly, Waiters appears to have eaten the incriminating evidence.
The NBA’s interest in curbing drug use is both about health and image
While Waiters is unlikely to face any criminal fallout, and while the Heat have already punished him, the NBA is motivated to further assess the situation. This is apparent when reviewing legal documents and assessing how the league protects its image.
The NBA and National Basketball Players’ Association have collectively bargained a comprehensive drug testing policy. The policy is contained in Article XXXIII of the CBA. A player who tests positive for a “drug of abuse,” such as cocaine or heroin, faces a career-altering punishment: an automatic two-year suspension. During that time, the player’s contract becomes null and void. The most recent example of an NBA player facing a two-year ban for drugs is Tyreke Evans, who this past May was suspended for two years.
The underlying logic of such a steep punishment rests in deterrence. A player who risks losing two years of his career by using a drug is probably less likely to use that drug. A two-year suspension from any occupation poses substantial economic harm, but that harm is amplified for those who work in occupations that tend to last short periods. The average length of an NBA player’s career is somewhere between only four and five years. A typical NBA player losing two years of his career is akin to most of us losing decades of our careers.
Deterrence also advances league and NBPA priorities. Neither the league nor the NBPA wants players using, and becoming addicted to, dangerous drugs like cocaine, heroin, LSD or meth. The NBA has a problematic history with players and drug use, particularly during the 1980s and particularly with cocaine. It was 33 years ago when Boston Celtics draft pick Len Bias died of a cocaine overdose. From a health perspective, a massive penalty makes sense.
The NBA also does not want to alienate fans, who include parents and corporate sponsors. Fans would be rightfully troubled by a league where players are thought to be using dangerous drugs. The league could lose fans—and lose consumer and sponsorship dollars, too. Considering that players net about 50% of the NBA’s basketball-related income (which includes revenue from the sale and licensing of broadcast rights and intellectual property), players have a vested stake in keeping the fan base happy.
Yet marijuana is a different story to tell in the context of social views and the NBA. While during the 1980s and 1990s marijuana was viewed negatively as part of the “War on Drugs”, American attitudes towards marijuana have softened dramatically over the last decade.
As mentioned above, most states have now legalized marijuana, albeit usually in restricted ways. Many Americans favorably view marijuana a superior alternative to prescription pain killers (which have become more controversial due to addictions—as one NFL agent told me five years ago, he urges his players to use marijuana instead of synthetically manufactured drugs such as Vicodin, Percocet or Oxycodone.). It’s also thought that many NBA players regularly use marijuana and still excel on the court. Retired NBA player Kenyon Martin recently estimated that about 85% of NBA players smoke marijuana.
Still, marijuana is prohibited under the federal Controlled Substances Act and lawmakers in some states continue to regard it with suspicion. Marijuana also remains disallowed by the league’s drug policy, though the accompanying penalties are fairly light. A first-time offense leads to a player being placed into a marijuana treatment program. A second-time offense carries a $25,000 fine. A third-time offense carries an automatic five-game suspension. Every subsequent offense carries a suspension of at least five games longer than the previous suspension (so a fourth-time offender is assigned at a minimum 10-game suspension; a fifth-time offender faces a minimum 15-game suspension and so on).
It is unknown if Waiters has ever tested positive for marijuana. Regardless, he can now expect more regular testing, as additional testing is authorized for cause.
Waiters can appeal the suspension: examining the key arguments
Waiters has a collectively bargained right to appeal his 10-game suspension and seek the suspension’s removal or reduction. If Waiters appeals, he and the NBPA would file an appeal with the grievance arbitrator. This arbitrator is neutral and independent.
Waiters would face a difficult burden in his appeal: he would need to prove that the suspension was arbitrarily determined by the Heat. To that end, Waiters must convince the arbitrator that the punishment was unwarranted or, in the alternative, excessive in light of the facts and past practices.
To advance an appeal, Waiters could argue several points. He could, for instance, deny that the edible contained THC as an ingredient. Perhaps Waiters has evidence that his panic attack was caused by other health factors or other product ingredients. Alternatively, Waiters could insist that he had no idea the edible contained THC. Had he known, Waiters might insist, he would have never eaten it given the risk of a panic attack. From that lens, the incident was more of an accident and not deserving of a 10-game suspension. Whether Waiters has any actual evidence to advance these types of arguments is unknown.
Waiters might also claim that a 10-game suspension is excessive based on past practices. For example, a 10-game suspension is a longer suspension than what players have received for domestic violence. In 2017, Willie Reed, who was accused of attacking his wife after she informed him that she was getting a divorce, was suspended six games after he entered a pretrial intervention program. Waiters might contend that even if he is “guilty” of an edible-induced offense, the only victim was himself, not others.
The Heat would be armed with a number of defenses. First, the Heat could invoke the concept of “progressive discipline.” Employers are generally authorized to elevate the severity of an employee’s punishment each successive time the employee violates a workplace policy. The underlying logic is that the employee didn’t “learn the lesson” the first time around and thus a stricter punishment is needed.
As mentioned above, the Heat have now twice suspended Waiters for conduct detrimental over the past few weeks. With that in mind, the team’s statement explaining the 10-game suspension noticeably cites a pattern of misconduct: “There have been a number of instances this season in which Dion has engaged in conduct detrimental to the team.” It was smart of the Heat to mention this point: it enables the team to more persuasively argue that progressive discipline applies.
Second, the Heat can emphasize that Waiters appears to have committed a criminal act (even if he’s unlikely to face any criminal repercussions for it). This point is detailed above. The Heat can credibly argue that Waiters engaged in misconduct that violates the law. The team can also point out that Waiters’s conduct reflects poorly not only on himself and the franchise, but also on the companies that spend considerable money paying for sponsorships and licensing deals with the Heat. The Heat can thus try to establish potential financial harm to the franchise.
The NBA can elect to punish Waiters and the Heat can try to void his contract
The 10-game suspension is not necessarily the last word on Waiters’s punishment.
Although the league is unlikely to pursue this course, the NBA has a collectively bargained right to rescind the Heat’s suspension of Waiters and impose a lengthier one. That right is contained in the “One Penalty” provision found in Article VI of the CBA. Under this provision, the NBA and a team can’t discipline a player for the same act or conduct. However, the provision provides the NBA with 48 hours after a team has suspended a player to rescind that suspension and, potentially, impose a different one. The provision also stresses that the NBA’s disciplinary authority supersedes that of a team. While it’s unlikely the NBA would invoke this right, the league could do so if it felt that a 10-game suspension was insufficient. Waiters would, in turn, have a right to appeal a league suspension.
The Heat could eventually seek to terminate Waiters’s contract. If Waiters continues to engage in conduct detrimental, the team could invoke Paragraph 16 of the uniform player contract. Paragraph 16 authorizes a team to sever a contract if the player fails to “conform his personal conduct to standards of good citizenship, good moral character, and good sportsmanship” or neglects to “keep himself in first-class physical condition.”
Any attempt by the Heat to terminate Waiters’s contract would trigger a legal fight with the NBPA. The NBPA would file a grievance and would have precedent on its side: NBA teams haven’t been able to terminate guaranteed contracts. The NBPA does not want to allow a precedent whereby guaranteed contracts lose their guarantee.
That said, teams have negotiated buyouts with problematic players. In 2004, the Celtics and Vin Baker, who battled problems with alcohol, reached a settlement whereby the Celtics agreed to pay Baker $16 million of the $35 million remaining on his contract. In 2015, the Milwaukee Bucks and Larry Sanders reached a settlement whereby the team agreed to pay him $22 million of the remaining $44 million on his contract.
Perhaps the Heat and Waiters will land in a similar place.
Michael McCann is SI’s Legal Analyst. He is also an attorney and the Director of the Sports and Entertainment Law Institute at the University of New Hampshire Franklin Pierce School of Law.