The Robert Sarver Punishment is a Reminder Who Holds the Power

10 months ago an ESPN story broke outlining an avalanche of horrific allegations against Phoenix Suns’ owner Robert Sarver. I wrote on that story when it broke.

The NBA employed an independent law firm to launch an investigation into Sarver’s tenure as owner of the Suns. Some of the major findings include:

• Sarver, on at least five occasions, repeated the N-word when recounting the statements of others

• Sarver engaged in instances of inequitable conduct toward female employees, made many sex-related comments in the workplace including referencing specific types of condoms and made inappropriate comments about the physical appearance of female employees and other women

• Sarver unnecessarily dropped his underwear and exposed his genitals to a male employee who was on his knees in front of Sarver performing a fitness check

• Sarver engaged in demeaning and harsh treatment of employees, including yelling and cursing at them

The entire report can be found here.

Upon these findings, the NBA announced this week they have issued a punishment against Sarver. The league fined Sarver $10 million and suspended him from all NBA-related activities for a year. Here’s the entire press statement.

While $10 million is nothing to sneeze at, it’s important to keep in mind that Robert Sarver bought the Phoenix Suns in 2004 for $400 million. Today, the Suns are valued at nearly $2 billion. Something tells me Sarver will survive swallowing the fine handed down by the league.

It’s difficult not to immediately compare the Robert Sarver situation to the last major owner scandal in the NBA. In 2014 audio tapes leaked of Clippers owner Donald Sterling uttering racist remarks talking about members of his team. The tapes created a firestorm across all news outlets and the NBA immediately banned Sterling from all NBA activities for life. After a short legal battle, Sterling was eventually forced to sell the Clippers.

So why didn’t Robert Sarver meet the same fate as Donald Sterling who engaged in similar conduct?

If you ask the NBA, they will tell you (through their press release) that Sarver’s activities were not motivated by racial or gender-based animus. But when you read the laundry list of cruelties committed by Sarver, you begin to scratch your head as to how actions like that can take place without animus.

From the NBA’s perspective, Sarver (despite being 60 years old) is so juvenile and immature that his behavior shouldn’t be taken as an intention to discriminate. He doesn’t harbor any deep seeded hate when he:

• removes professional opportunities from women because they are pregnant

• spews racial slurs in the workplace

• told a former black coach that he hates diversity

The NBA may point to the forum of racial and sexist comments as another stark difference. Sterling’s audio was leaked by TMZ with little to no warning to the NBA. In a matter of minutes, everywhere in the country you could turn on your TV and hear the Clippers owner talking to his mistress about how he doesn’t like her taking Instagram pictures with black people. The audio was more than just a smoking gun – smoke eventually dissipates. Sterling's racist remarks were captured perpetually, the NBA couldn’t escape them. Amid the chaos, they were forced to hand down the stiffest punishment imaginable.

With Robert Sarver, while the ESPN story was appalling, it was mostly filled with anonymous recollections of inappropriate workplace conduct. Reading these allegations left you with a horrible taste in your mouth, but they don’t have the same long-lasting impact as listening to the Sterling tapes. Adam Silver even admitted as much:

The timeframe is also important here. When the Sterling tapes leaked, every alarm sounded in the NBA league offices. They needed to act immediately or risk players boycotting NBA playoff games. Adam Silver was thrust in front of the nation to condemn the owner’s behavior. The immediacy of the timeline heightened the public awareness surrounding the controversy. With Sarver, the NBA has had 10 months to carefully formulate a plan, gauge the public reaction, and issue a punishment. They banked on this timeframe mellowing some of the outcries to axe Sarver permanently.

Why does the NBA want Sarver to remain as owner of the Phoenix Suns? Well, most people that makeup the NBA don’t.

Players, coaches, staff members, the commissioner, etc., almost everyone would applaud if Sarver wasn’t allowed to step foot inside an NBA arena again. But all of these groups pale in comparison to the owners who want Robert Sarver to remain as owner. Unfortunately, the group that wants Sarver to remain is more powerful than the rest.

Under Section 13 of the NBA Constitution, a 3/4 vote of other owners are required to remove someone from ownership:

Adam Silver vaguely referenced this procedure when speaking on why owners are treated differently than average NBA employees:

Silver continued in his press conference Wednesday, “I have certain authority by virtue of this organization. I don’t have the right to take away [Sarver’s] team”.

Robert Sarver has brought a black cloud over the entire league.

So why won’t the other owners cut Sarver and move on? NBA owners are self-interested. The other 29 men don’t want to set and reinforce a low bar to remove an owner. They are worried about if they become the next one on the chopping block. If that happens, they want security.

In 2014, Mark Cuban characterized removing Donald Sterling as a “slippery slope”. That slope would get a whole lot steeper if Sarver was removed. So Robert Sarver gets a year suspension and his fine, while the other owners can breathe a sigh of relief that their assets are well protected.

Adam Silver will receive the brunt of the backlash, maybe some of it deserved. Many criticized Silver for stating on Wednesday that Sarver “grew as a person” over the last 18 years. But if you view his comments in light of the NBA procedures, it becomes apparent that Silver is speaking to protect the owner’s decision to keep Sarver. His hands are tied. Adam Silver works for the owners and they hold the power.

Matt Netti is a 2021 graduate of Northeastern University School of Law. He currently works as an attorney fellow at the Office of the General Counsel for Northeastern University. You can follow him on Twitter and Instagram @MattNettiMN and find him on Linkedin at https://www.linkedin.com/in/matthew-netti/. You can find all his work at www.mattnetti.com