The WNBA has received significant scrutiny in recent days as two of its players—Los Angeles Sparks guard Riquna Williams and Seattle Storm forward Natasha Howard—face accusations of domestic violence. This scrutiny is amplified by the startling absence of a domestic violence policy in the league’s collective bargaining agreement with the Women’s National Basketball Players’ Association (WNBPA).
On Tuesday, the WNBA attempted to change the narrative by suspending Williams for 10 games. The suspension was made pursuant to the WNBA personal conduct policy found in Article XIV of the CBA.
As detailed in a Sports Illustrated story on Monday, Williams faces two felony charges for an incident that occurred last December in Williams’s hometown of Pahokee, Florida. Williams allegedly beat and pulled the hair out of her ex-girlfriend and threatened to shoot a man. On May 6, Williams pleaded not guilty to those charges. Until Tuesday’s suspension, Williams had played the entire season for the Sparks. The team re-signed Williams on May 15 despite the fact that she faced two felony charges.
Putting the 10-game suspension into context and explaining why the WNBPA is appealing
The 10-game suspension imposed on Williams is the longest in the WNBA’s 23-year history. A 10-game suspension reflects 29.4% of the WNBA’s 34-game regular season. The equivalent suspension in the NBA, which has an 82-game regular season, would be 24 games.
Perhaps not coincidentally, the longest NBA player suspension for domestic violence is, to date, 24 games. It occurred in 2014 when the NBA suspended Charlotte Hornets forward Jeffrey Taylor, who was accused of shoving a woman across a hotel hallway. The NBA suspended Taylor after he pleaded guilty to misdemeanor domestic assault and misdemeanor malicious destruction of property.
On Wednesday, WNBPA executive director Terri Jackson announced that her union would challenge the suspension through the collectively bargained grievance process. The WNBPA’s decision reflects not only a desire to protect Williams but also recognition of the importance of precedent. Unions are often inclined to contest “record-setting” employee punishments. Left unchallenged, such punishments sometimes set new standards for disciplining employees. That’s not to say the WNBPA doesn’t support Williams. However, WNBPA leadership likely views the Williams matter as a controversy that impacts other WNBA players and future WNBA players as much as Williams.
These latest developments ensure that the topic of domestic violence will remain at the forefront for the WNBA and its new commissioner, Cathy Engelbert. The WNBA and WNBPA will negotiate a new CBA as the current one is set to expire after the 2019 season concludes. It is a safe bet that the two sides will attempt to negotiate a domestic violence policy in a new CBA. Perhaps it will be one that resembles the well-designed policy in the NBA’s CBA with the National Basketball Players’ Association. Until then, however, expect the WNBA and WNBPA to debate how to best handle the topic.
The grievance process that awaits Williams
Williams and the WNBPA have a collectively bargained right to grieve a suspension. The WNBPA, on behalf of its itself and Williams, is invoking that right. Pursuant to Article XXII of the CBA, both the WNBA’s decision to suspend Williams and the league’s decision to impose a 10-game suspension will be reviewed by an arbitrator. The suspension could be upheld, vacated or reduced.
The WNBA and WNBPA will jointly pick the person who will serve as the arbitrator. The arbitrator will thus be a neutral person. If the two sides can’t agree on an arbitrator, they will jointly request the International Institute for Conflict Prevention and Resolution (the “CPR Institute”, an independent non-profit entity that provides arbitration services) to submit the names of 11 attorneys who could serve as an arbitrator. None of the named attorneys or their law firms can have represented any professional athletes, agents, sports leagues or teams over the last five years. If the WNBA and WNBPA can’t decide on an arbitrator from the CPR Institute’s list, each side can strike up to five names from that list. This process of “dwindling the list” is designed to eventually eliminate 10 of the 11 names, leaving only one to serve as the arbitrator. If, after all these steps, the WNBA and WNBPA still can’t agree on an arbitrator, the CPR Institute would name one.
The arbitration hearing will be held in New York City, either at the WNBA’s office or the WNBPA’s office, most likely over the next month. The arbitrator will review and weigh the kinds of arguments detailed below. Within 30 days of the hearing, the arbitrator will be expected to have issued a written decision (the “award”). The award will constitute the full, final and complete disposition of Williams’s grievance.
While the losing side can petition a federal court to vacate the award, federal judges seldom reverse the decisions of arbitrators. Along those lines, federal law instructs judges to be highly deferential to the decision-making of arbitrators. If management and labor wish to use private arbitration to resolve their disputes and if they agree to arbitration being the final step in their dispute resolution, then it is understandable why courts would be reluctant to use taxpayer-funded resources to provide these private parties a second bite at the apple. It is thus unlikely that the Williams grievance will become a federal case.
Six likely legal arguments by the WNBA in the grievance
The WNBA is poised to stress several points to justify the 10-game suspension.
First, the allegations against Williams are accompanied by government-obtained physical evidence and witness testimony. Stated differently, these allegations weren’t raised in an unsubstantiated tweet, staged press conference or exaggeratively worded civil lawsuit. They arose in a criminal indictment, which reflects deliberate review and scrutiny by the Palm Beach Sheriff and the Palm Beach County State Attorney. This means that law enforcement found probable cause—sufficient facts and circumstances to conclude that Williams committed crimes. It also means that law enforcement regards the allegations against Williams with enough certainty to prosecute her.
The WNBA also didn’t wait for the legal system to resolve the 2015 arrests of Brittney Griner and Glory Johnson on suspicion of assault and disorderly conduct charges (those charges are discussed more fully below). The league suspended each player for seven games a few weeks after their arrests. While Griner had already agreed to pretrial diversion by the time of her suspension, Johnson’s criminal case would remain pending for another month.
Second, Williams has been charged with serious felonies: burglary with assault or battery, and aggravated assault with a firearm. She faces the possibility of a life sentence if convicted on the first charge. While it’s unlikely that she would receive such a lengthy prison sentence, the fact that she could highlights the gravity of her alleged crimes. These are not simple misdemeanors resolvable by paying a fine and doing community service. Williams faces the prospect of spending years in prison if she’s convicted.
Third, the purported set of facts implicating Williams is one of the most disturbing in recent sports history. If the police have it right, Williams traveled to the property of her ex-girlfriend, Alkeria Davis, and Antonio Wilson to brutalize Davis. It does not appear to have been a “spur of the moment” decision. Williams is thought to have visited the property with the goal of breaking in and attacking Davis. The police report indicates that Williams struck Davis several times in the head with a closed fist. Williams is also alleged to have pulled out Davis’s hair, thus causing trauma to her scalp. Williams is also accused of going to her car to pull out a gun and threatening to shoot Wilson and others in the residence, including Wilson’s 10-year-old son.
Fourth, whether Williams is criminally convicted is not the relevant test for whether the WNBA can punish her. As contained in Article XIV, the league’s personal conduct policy permits the WNBA to punish a player for any act or omission that betrays the player’s obligation to “at all times conform their conduct to standards of good citizenship, good moral character, and good sportsmanship.” Players are also duty-bound to “not do anything detrimental or prejudicial to the best interests of the WNBA, their teams, or the sport of basketball.” By contrast, there is no requirement that a player be convicted of a crime in order for the WNBA to punish her. The only requirement for a WNBA punishment is a finding, by the WNBA, that a player did not comport to the standard detailed above. To that point, the policy does not prohibit the NBA from relying on probable cause as a sufficient threshold for finding that a player violated the policy. The WNBA likewise stresses that it conducted its own internal investigation into the Williams matter and consulted with experts in the field of domestic violence. The WNBA’s internal findings, coupled with those identified by law enforcement, suggest there is ample ground for the league to impose a substantial suspension.
Fifth, the WNBA, like other pro leagues, is mindful of how player controversies can adversely impact its brand with fans, media and sponsors. The league runs the risk of undermining its public image if a player who faces multiple felony charges continues to play as if nothing has changed. The league could be perceived as not taking crime seriously. Some fans, particularly those with children, might become less interested in the WNBA as a result. The fact that the league’s lack of domestic policy has recently attracted national media attention—including on ESPN, one of the WNBA’s broadcast partners—is evidence that the league’s reputation might be taking a hit.
Sixth, the unprecedented length of the Williams suspension reflects unprecedented circumstances. Until Williams, the longest WNBA suspension had been seven games. It occurred when the league suspended Griner and Johnson. These two players, who were engaged to one another at the time, were arrested in Arizona on suspicion of assault and disorderly conduct charges. A verbal argument in their home turned physical and the police were called.
Unlike Williams, who faces serious felonies, Griner and Johnson were charged with ordinary misdemeanors (that were later dropped). Also, unlike in the Williams situation, neither Griner nor Johnson was accused of breaking into anyone’s home or, for that matter, brandishing a gun or terrorizing a child. Further, the injuries sustained by Griner and Johnson were very minor. Objectively, then, the Williams situation is far more serious. The WNBA can thus credibly argue that it warrants a more severe punishment.
Six likely legal arguments by Williams and the WNBPA in the grievance
The WNBA is not alone in being able to offer persuasive arguments. The WNBPA has several good points to raise.
First, Williams has pleaded not guilty. She maintains her innocence and enjoys the presumption of innocence in our legal system. Unless and until Williams is convicted of a crime or pleads guilty to one, it is not proven that Williams committed the acts detailed in the charges.
Second, we don’t yet know her legal defenses. Williams might convincingly argue that she had a legal right to enter the residence (which, if true, would defeat the burglary charge). She could also maintain that Davis and Wilson were the aggressors and that the gun-brandishing part of the narrative was greatly exaggerated.
The imposition of a WNBA suspension before the legal process arguably plays out therefore presents an uncomfortable risk: if Williams is later exonerated in court, the WNBA will have punished an innocent player.
Third, the WNBA is not in a better position than the courts to assess whether Williams is guilty of committing crimes. While prosecutors and judges can utilize subpoenas to compel sworn testimony and disclosure of documents, the WNBA is a private entity without such powers.
Fourth, the WNBA has been aware of the charges against Williams for months and yet took no action until now. As a rebuttal, the WNBA would likely argue that the impact on the league’s brand has changed in recent days. However, expect the WNBPA to insist that media fallout shouldn’t be the difference between no punishment and a suspension that amounts to losing nearly 30% of the season.
Fifth, the WNBPA will probably assert that Williams is being suspended due to a defect in the CBA: the absence of a domestic violence policy. If such a policy existed and if it resembled the NBA’s policy, Williams could be placed on administrative leave. During that time, she would be separated from the Sparks while the league investigates but still paid. With a suspension, she is not paid. Of course, any argument by the WNBPA of a “defect” in collective bargaining would invite the WNBA to retort that the WNBPA must be equally at fault: a CBA is a joint league-players’ association document.
Sixth, while Williams is accused of heinous acts, the WNBPA will contend that she should not face the longest suspension in league history until there is certainty that she actually committed those acts. To that end, the CBA requires that a punishment be “reasonable.” Should the longest suspension in league history be for a player who might ultimately be exonerated?
It will be an interesting grievance to follow.
Michael McCann is SI’s Legal Analyst. He is also an attorney and Director of the Sports and Entertainment Law Institute at the University of New Hampshire Franklin Pierce School of Law.