The Boston Celtics hosted the Denver Nuggets on Friday night at the TD Garden. Despite battling an illness and an abdominal injury, Celtics guard Marcus Smart played 28 minutes. The former Oklahoma State star scored nine points and dished out two assists as the Celtics defeated the Nuggets 108-95.
The game went much smoother for Smart than the last time the 25-year-old Texas native faced Nikola Jokic, Jamal Murray and their Denver teammates.
On Nov. 22, the Nuggets hosted the Celtics at the Pepsi Center. During the fourth quarter, Smart chased a loose ball and tumbled into the stands. He wasn’t injured but his foot got tangled with a chair. This obstruction made it difficult for Smart to get up quickly.
While on the floor, Smart says a nearby fan yelled at him, “That’s right, stay on the ground, get on your knees.”
Smart looked at the fan and responded, “Listen, just watch the game.”
Smart later told media that he relayed a complaint to Pepsi Center security to have the fan removed. Smart specifically identified the fan, too. He stressed that the remark seemed derogatory and also ran afoul of the NBA’s Fan Code of Conduct.
As Smart tells it, arena security responded with complete indifference. "They just looked at him,” Smart recalls, “and didn’t even say anything.” Smart, who is an elite defensive player but more limited on offense, believes that if he had been a superstar, security might have felt obligated to take action. Yet Smart insists that a player’s level of stardom shouldn’t matter. If unruly fans can get away with making derogatory remarks without repercussion, those fans won’t be adequately deterred.
To that end, Smart is frustrated by the inability of NBA players to respond to intolerant comments. He told media that if NBA players had the capacity to “retaliate," bigoted fans would think twice before degrading players.
At the same time, Smart recognizes that if players retaliated, the players are the ones who get in trouble. Smart insists that this asymmetry—disruptive ticket holders feeling empowered to direct inappropriate verbal shots at players while players can only respond by imploring arena security to do something—is simply “not right.”
Smart’s response in the context of recent fan incidents and his own history
Smart maintains the league must “fix” the problem of offensive fans. If the league fails to do so, Smart admonishes, tensions will escalate. “We’re going to end up protecting ourselves,” Smart warns. “And it’s not going to be pretty for those fans and we don’t want that.”
Smart, who was born in 1994, is surely aware that the prospect of players “protecting themselves” is one that league officials would find worrisome. In 2004, five NBA players—Ron Artest, Stephen Jackson, Jermaine O’Neal, David Harrison and Anthony Johnson—faced criminal charges and lengthy NBA suspensions for their roles in the “Malice at the Palace.” The incident occurred at the Palace of Auburn Hills and was started by a fan, John Green, who tossed a plastic cup of Diet Coke onto Artest.
Artest responded with fury and rushed up to the stands. He attacked a man who he thought was the cup thrower but was actually another guy. That sparked a riot-like event where Pistons fans and Pacers players battled both in the stands and on the court. In response, the NBA enhanced courtside security measures and arenas added more security at games. Green, for his part, was banned for life from attending Pistons games.
The incident involving Smart is also not the first in recent history. Last season, a Utah Jazz fan named Shane Keisel told Russell Westbrook to “get down on your knees like you’re used to.” The remark was interpreted as possibly racist or homophobic. Westbrook responded with a threat. “I promise you,” Westbrook warned Keisel. “You think I’m playing? I swear to God, I swear to God, I’ll f--- you up. You and your wife, I’ll f-- you up.” The Jazz later banned Keisel for life from attending events at the Vivint Smart Arena, which is owned by the Miller family (who also own the Jazz).
Smart’s own team took a similar step in March 2019, when the Celtics banned a fan, who is described as a minor, for two years from attending all Celtics games. The Celtics determined that the fan had “been verbally abusive” towards the Golden State Warriors bench during a game in January. However, the team could not verify a claim that the fan had directed the N-word at DeMarcus Cousins. The Celtics stressed that the punishment for any “corroborated discriminatory language” directed at any player, employee or fan “is a lifetime ban.”
Meanwhile, the incident between Smart and the fan in Denver is not the first of its kind in his collegiate and NBA career. Five years ago, a Texas Tech fan allegedly called Smart—who at the time was a 19-year-old college player—the N-word. This occurred after Smart tumbled out of bounds on a play in which he tried to block a dunk by Jaye Crockett. Smart then shoved the fan, who denied saying the N-word. Smart was suspended three games. He expressed regret for making physical contact with the fan.
Fan Code of Conduct and the Revocability of Tickets
The NBA has adopted a Fan Code of Conduct. It creates baseline rules for fan behavior. At its core, the code tries to ensure that NBA games “foster a safe, comfortable, and enjoyable sports and entertainment experience” and that “players and fans respect and appreciate each other.” The code explicitly prohibits, among other things, the use of “foul or abusive language and obscene gestures.” This prohibition is considered essential given the close physical proximity between NBA players and fans seated near the floor.
Fans who violate the Code are subject to such penalties as:
· Warning card.
· Ejection without refund.
· Revocation of season tickets.
· Ban on attending future games and other arena events.
NBA teams and their arenas are free to adopt additional restrictions and accompanying measures. To that point, the Pepsi Center, which is owned by Kroenke Sports & Entertainment and is thus affiliated to Nuggets owner Ann Walton Kroenke, has implemented the Pepsi Center Fan Code of Conduct. This arena code requires that fans “maintain reasonable and appropriate behavior at all times.” It also forbids the use of “harassing, taunting or using offensive language against the players, referees, performers, other guests or staff.”
Some fans might wonder if these types of speech restrictions run afoul of First Amendment free speech rights. The answer: they don’t. First, many NBA arenas—including those for the Celtics, Jazz and Nuggets—are privately owned and thus outside the scope of plausible First Amendment claims. Second, even among publicly owned or publicly financed NBA arenas, fans contractually assent to adhere to league and facility codes of conduct. This type of contracting extinguishes most types of free speech claims.
To that point, tickets to NBA games provide fans with a revocable license to enter an arena for a specific event and to occupy a specific seat. The license is revocable if a fan violates applicable codes of conduct. In addition, because a ticket to a game is a privilege and not a right, teams can lawfully deny entry to anyone who has demonstrated a failure to adhere to rules. This is why arena and stadium “bans” are lawful.
Leagues and teams take fan behavior seriously in part because of player safety. However, fan safety and the overall fan experience are also important considerations. An arena could face liability if a fan is injured by a nearby fan who is violent or inebriated. Also, fans, particularly those who would like to bring their children to games, are less likely to pay for tickets if foul language is rampant.
Even ticket holders with equity in a team are subject penalties when they engage in misconduct with players. During Game 3 of the NBA finals between the Golden State Warriors and Toronto Raptors in June, Warriors minority owner Mark Stevens shoved Raptors guard Kyle Lowry at the Oracle center. The NBA fined Stevens $500,000 and banned him from attending any NBA games until the 2019-20 playoffs are over.
Investigative steps into allegations of hate speech
When a fan is accused of making a derogatory remark, various stakeholders—the league, the team and the arena—will attempt to interview fans who were seated nearby. Other likely interviewees include security personnel and police who were in the vicinity of the incident. Players and coaches who may have heard the remark will also be contacted.
In addition, the investigation will review available video and audio evidence. There are multiple broadcast and security cameras, which feature different angles and sound sources, running during an NBA game. Fans might also provide their own cell phone camera recordings.
An investigation generally requires the cooperation of those involved. Obviously, neither the league nor a team is a law enforcement entity. It thus lacks subpoena power or anything like it to compel witness testimony or evidence. However, because of provisions in the collective bargaining agreement and employment contracts, players and coaches must cooperate in an investigation.
It’s worth stressing that, given the different steps needed to corroborate whether a fan uttered a derogatory remark, the investigative process is not instantaneous. A probe can take weeks to complete.
Bans are imperfect remedies and can be challenging to enforce
A team or arena clearly has the capacity to successfully eject a fan from an arena. Do they have the same wherewithal to enforce a “ban” of that same fan from future events?
Approximately 18,000 people attend a typical NBA game. Even with surveillance cameras and facial recognition software, it’s easy to imagine a “banned” fan successfully blending in—particularly if he or she is of ordinary size and particularly if they took basic steps to alter their appearance, such as wearing glasses or a baseball cap. Also, as time passes, the appearance of that “banned” fan will change naturally with aging.
It’s also true that teams can flag the credit card or other payment method used by the fan to buy tickets, assuming the fan bought his or her ticket. However, it probably wouldn’t take much effort for the fan to have someone else buy a ticket in the future and then reimburse that person. Also, third party ticket vendors might not be able or willing to enforce a ticket ban.
Still, there are at least two reasons to believe that a ticket ban can work.
First, a banned fan might—and probably should—feel ridiculous trying to “sneak” into an arena, possibly in disguise, to watch a game. This same fan could easily watch the game on TV instead. Basic shame sometimes serves as the most powerful deterrent.
Second, if a banned fan were actually caught in the arena, he or she could be arrested for trespassing and possibly spend a night or two in jail. A person only has a right to enter an arena by obtaining the consent of the arena’s owners and operators. Consent can be conveyed through one’s job (players, coaches and arena workers have a right to enter the arena) or through a ticket.
Moving forward and not going “too far” in regulating fan speech
The NBA has not yet announced its findings in the Smart investigation, but it’s clear that the league takes the topic of bigoted and hate speech seriously.
In May, NBA commissioner Adam Silver pledged to The Undefeated that he will “send a clear message to those small, tiny minority of fans who might engage in that sort of conduct that it absolutely won’t be tolerated.” Five months later, Jerome Pickett, the NBA's executive vice president and chief security officer, stressed that prohibited language at NBA games includes a wide range of degrading comments. They include insensitive remarks about race, gender, sexual orientation and/or family members.
The NBA appears to regard its conduct code as one that ought to evolve and respond to new kinds of issues as they surface. That’s not to say every new situation has easy solutions. In October, two fans were ejected from a preseason exhibition game played between the Guangzhou Loong Lions and the Philadelphia Sixers in Philly’s Wells Fargo Center after holding up “Free Hong Kong” signs. The Sixers insisted the fans were removed because of “multiple complaints from guests and verbal confrontations with others in attendance.” The difference between effectively policing disruptive speech and appearing overly controlling can be a fine one.
Lastly, it’s worth acknowledging an important data point: the vast majority of people who attend NBA games aren’t shouting hate speech and slandering race, ethnicity, gender, religion, sexual orientation and other demographic traits. Last year, the NBA’s total attendance was approximately 22 million. Although players report hearing discriminatory comments from time-to-time, and other players report hearing obscenities and foul language, it seems that most people at games are reasonably well-behaved.
While the NBA has a duty to ensure that hate speech finds no home at games, the league must also avoid overstepping the policing of speech and silencing good-natured banter and jeers from the home team’s fans. That competitive spirit is part of what makes games fun to attend. Bigoted fans shouldn’t be able to ruin everyone else’s experience.
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.