On the December 23, 2023, episode of The Ringer’s NBA Show Group Chat Podcast, the hosts: Justin Verrier, Rob Mahoney, and Wosny Lambre criticized Adam Silver’s player punishment policy in light of the indefinite suspension of Draymond Green. The group made the following points:

-  “I don’t like this idea that the player’s union is ceding ground to Silver and giving him autonomy to suspend long term.”

-  “I would love [NBA] to put a number of games on this. I would love for an an actual determination to be made by the League and the Union to come to have some kind of agreement or to make a ruling and have it challenged and let it play out. But, the reason that a lot of those things do not happen is that the league is dodging precedent. They don’t want people to say 'Well, Myles Bridges got this but player X got this.' Then, you are doing an equivalency game of intimate partner violence versus DUI. It feels to me that the league is trying to skirt that stuff as much as it can. I think that’s bull****, frankly. I think that it’s a pretty cowardly way to go about this process and trying to dodge accountability for trying to suspend players for committing actual crimes.”

-   “There is definitely a chilling effect of the lack of transparency that all of us are against.”

-   “It is also not the NBA’s responsibility. This is where we lost the plot for a lot of these player punishments. It is not the league’s responsibility to facilitate Draymond Green’s therapy. The league needs to check damaging and destructive behavior and not the mental health behind that behavior. You give him a set number of games that he is suspended for a set action.”

This hot take episode is aptly named, “NBA Festivus: The Airing of Grievances!” These sports, business, legal, and moral issues can be broken down into (1) the power of the players union and indefinite punishment, (2) the NBA is dodging precedent and scope of NBA’s responsibility, and (3) the NBA’s lack of transparency.

1.      Did the NBA Players Union cede too much control to the NBA for Draymond Green’s indefinite punishment? Is there a slippery slope for future players?

On Saturday, January 6, 2024, the NBA reinstated Draymond Green and officially ended his indefinite suspension which totaled 12 games. Did the NBA Players Union give up too much control? Joe Dumars explained the indefinite suspension when he said, it was due to “Green's "repeated history of unsportsmanlike acts."[1] In the 2023-2024 season, Green has been ejected 3 times for the most in the league with the Denver Nuggets’ Nikola Jokic and Detroit Pistons’ Jalen Duren behind Green with 2 ejections.[2] This season included 6 different suspensions with Draymond Green possessing 2 of the 6 suspensions—5 games and 12 games.[3] Other than Ja Morant’s 25 games suspension and Miles Bridges 30 games, the other two suspensions were 2 games for Devonte’ Graham and 4 games for Joshua Primo.[4] One may look at Morant who is a repeat offender like Green and who could be a bad Instagram post away from an indefinite suspension. Since Morant is out for the season with a torn labrum, there is currently little, if any, risk of future indefinite punishments.

2.      Should the NBA continue to dodge precedent? What is the scope of NBA’s responsibility?

According to the American Bar Association, “stare decisis holds that courts and judges should honor ‘precedent’ or the decisions, rulings, or opinions from prior cases. Respect for precedents gives the law consistency and makes interpretations of the law more predictable—and less seemingly random.”[5]

The term “precedent” is frequently used in sports media. Usually, the term arises when player contracts are discussed such as “DeShaun Watson’s fully guaranteed contract set a precedent for other quarterbacks.” What people really mean is that “the market” or “fair market value” for a specific type of player has been set. This gives negotiators leverage to demand for an amount, because if one team fails to pay, then another team will surely pay. However, there is no legal obligation to obey what the market deems as fair. No General Manager breaks the CBA language when a team underpays or overpays for a player. In sports, the market is not required to be consistent nor predictable. In practice, precedence seems to be in the spirit of a line from the film, Pirates of the Caribbean Curse of the Black Pearl, “The Code is more like a guideline than actual rules.” Just as sports precedence is a guideline for the market, it is also a guideline for punishment.

In this case, the Ringer NBA Show Group Chat used “precedent” as a benchmark for punishments. Similar to the fair market value of players, the CBA language does not require that punishments be consistent or predictable like the legal system. Under-punishing or over-punishing leads to a poor public-relations-look which can cause bigger problems in the future. This under-punishing lesson was harshly learned by Roger Goodell after his initial light punishment against Ray Rice. The light punishment caused such an uproar when the video was released that Rice was out of the league and the NFL had to revamp its entire punishment system. One wonders whether Rice would have lasted longer in the NFL if Goodell initially punished Rice hard like he did with DeShaun Watson.

Adam Silver is not trying to perfect a player punishment system; rather, he is trying to perfect the NBA.[6] If the media rights companies do not want to pay for boring games, Silver finds a way to make them exciting. If the All-Star game is bad, Silver works with the Players Association to fix it. While the NBA Ringer Show Group Chat disagrees about the wide scope of Silver’s power, just remember Draymond Green’s conversation with Silver where Green was “going to retire.”[7] Judges do not care about whether a guilty suspect retires. Silver does. Fortunately, Silver’s hands were not tied to a punishment system and said, “You’re making a very rash decision and I won’t let you do that.”[8] Silver went beyond the scope of judges and the NBA’s business is better for it.

3.      Adam Silver’s view of punishment fails to be transparent. What is Silver’s method?

The Ringer Group Chat levels a fair criticism that Silver’s punishment policy lacks transparency. At best, Silver has taken a lesson from Former Texas Rangers Owner and Former President, George W. Bush who said, “There’s an old saying in Tennessee. I know it’s in Texas. It says, Fool me once, shame on…..you. If we get fooled, we can’t get fooled again.”

In recent high-profile cases of punishment, we might find a way to make sense of Silver’s nebulous policy. Step 1 is Silver stays in the shadows and advises the Owner. In the cases of Kyrie Irving and Ime Udoka, the teams issued their punishments. Irving and Udoka returned quietly. When rumors rose of Udoka possibly taking the New Jersey Nets head coaching job, it is reasonable to assume that the NBA advised against it. The Nets later hired in-house Assistant Coach, Jacque Vaughn. Step 2 is that if a player repeats the poor behavior, then Silver puts on his George Bush Jr. hat and punishes hard. For example, initially, Morant received an 8-game suspension and Green received a 5-game suspension. Then, Morant and Green returned and later repeated their poor behavior. Silver stepped out of the shadows and punished both players hard: 30 games for Morant and 12 games for Draymond. Silver may get fooled the first time but makes up for it the second time. Overall, creating a perfect player punishment system is not the best business strategy, and that’s a positive outcome for the NBA.

John Camacho is a graduate of South Texas College of Law where he earned a J.D. and a graduate of the University of Missouri, St. Louis where he received a M.A. in Philosophy. He is a Co-Founder of The Moral Questions of Sports Podcast and a Co-Host of the Oxford Public Philosophy Podcast. You can connect with him via Linkedin or via The Moral Questions of Sports. He can be reached on Twitter @Camachotalk and Instagram @themoralquestionsofsports.

References:

[1] See Paul Kasabian’s Bleacher Report article, “Warriors’ Draymond Green: ‘Very Confident’ I Can Remove Antics After NBA Suspension.” https://bleacherreport.com/articles/10104310-warriors-draymond-green-very-confident-i-can-remove-antics-after-nba-suspension#:~:text=Green%20was%20initially%20suspended%20indefinitely,Irving%20of%20Sporting%20News%20noted.

[2]“NBA Festivus: The Airing of Grievances!” Podcast can be found at https://www.theringer.com/2023/12/25/24014545/nba-festivus-the-airing-of-grievances.

[3] Spotrac, “NBA Fines & Suspensions” See https://www.spotrac.com/nba/fines-suspensions/fines/ejection/

[4] Spotrac, “NBA Fines & Suspensions” See https://www.spotrac.com/nba/fines-suspensions/suspensions/

[5] “Understanding Stare Decisis” American Bar Association, Dec. 16, 2022 https://www.americanbar.org/groups/public_education/publications/preview_home/understand-stare-decisis/#:~:text=Stare%20Decisis—a%20Latin%20term,and%20opinions%20from%20prior%20cases.

[6] Even if Adam Silver wanted a legal-like player punishment system, judges have discretion during sentencing which explains why some criminals receive harsher sentences than others for the same conduct. See the Las Vegas judge’s “extensive” judicial reasoning when determining whether a man should go to prison. https://abcnews.go.com/US/wireStory/man-caught-camera-attacking-las-vegas-judge-sentenced-106198407 

[7] Anthony Slater and The Athletic Staff, “Draymond Green considered retirement, said NBA commissioner Adam Silver talked him out of it. https://theathletic.com/5187590/2024/01/08/draymond-green-podcast-comments-warriors-retirement/

[8] Id.