Sports Law Blog
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Tuesday, November 28, 2006
 
NBA Player Autonomy: How Should We Define It?

On Tuesday, I posted on recent efforts by the NBA and Commissioner David Stern to regulate NBA players, and to do so without the consent of the players' association. I also discussed how some owners appear to be finding Stern's style a bit too autocratic, and how these topics tied into some of my scholarly research. The post generated great discussion in the comments and also the websites that are linked from it.

In response to the post, T.J. from the blog Michael Redd Your Boat Ashore has posted a highly substantive, 1,500+ word review of my law review article The Reckless Pursuit of Dominion: A Situational Analysis of the NBA and Diminishing Player Autonomy, 8 University of Pennsylvania Journal of Labor & Employment Law 819 (2006). The review is thoughtful and balanced, and I am incredibly grateful that someone would take the time to read my stuff and respond to it so carefully. It's the same reason why we appreciate you reading our blog and making comments.

In terms of T.J.'s questions, he is correct to say that I never specifically define "player
autonomy" in the article. It's an amorphous phrase, no doubt, and a phrase that can be perceived differently by different people. However, there are patterns of behavior that perhaps give some life and even specificity to it. For instance, if players object to a league-instituted dress code and believe it is a mixture of condescension and overbearingness that infringes upon their right to be who they are in ways that don't affect the lives of other people (i.e., the clothing other people wear should not bear on other people around them, perhaps save for not wearing any clothing or clothing that contains expletives), and they have no choice but to abide by it--it's not, for instance, a team rule or a collectively-bargained one, and pro basketball isn't a sport where there are rival and equivalent leagues offering substitute employment opportunities--that can be suggestive of autonomy. Autonomy can also relate to race and culture, a topic that has been raised in regards to the dress code and whether it endorses the clothing of one demographic group while condemning that of another. In those respects, autonomy, as I conceive it, is more of a situational concept than a rigid one. In that same vein, some principles obviously can't have bright-lines, but are nevertheless worthy, and autonomy, in my view, is one of them.

T.J. also asks about the appropriate limits of an autonomy argument.
For instance, he asks if it includes Bulls' head coach Scott Skiles enforcing a team rule that prohibits Ben Wallace from wearing a headband. My response is to first consider that Ben Wallace choose to sign with the Bulls, which already had a rule in place against headbands. That's a materially different fact-pattern from a league instituting a rule that affects all players, particularly after they have already entered the league and particularly without the protection of collective bargaining. There is no question that Wallace would argue that his autonomy should include the option of wearing a headband (and there are even medicinal reasons for wearing a headband, such as not letting sweat get into one's eyes, but that's a separate argument). But Wallace's argument is undercut by his own behavior. He could have easily signed with another team as a free agent, and yet opted for the Bulls (much like Johnny Damon signing with the Yankees and having to abide by their appearance code). In law, we might call that an "assumption of risk"; in contrast, a unilaterally-imposed, league-instituted dress rule obviously presents no alternatives for players--they can't sign with a particular team and not have to deal with it--and it also circumvents collective bargaining.

Maybe a more difficult example would be if the Bulls drafted a player who likes to wear headbands, and now he can't. Hypothetically, let's go back to the 2003 Draft and assume the Bulls, and not the Nuggets, have the number three pick. And Carmelo Anthony--he of the headband--is on the board. And the Bulls draft him. And they tell him, look Carmelo, we think you're great but the headband has to go, we have a team rule against it. What would be Carmelo's options?

First off, consider that some would argue the draft itself is an infringement on player autonomy. Players have to play for a particular team in a particular city, neither of which they may like, and the only alternative would be to play minor league hoops or play in Europe; it's like being a law student at UCLA and planning to practice in L.A., but then there is a law firm draft and you get picked by a law firm in Bismarck North Dakota, and have to stay there for at least four years or you can't practice law in the U.S. (or at least practice law in the U.S. without having to give up 95% of your salary). For related commentary on this, check out Alan Milstein's post Reggie Bush Sweepstakes from last December.

But even if the draft (and also the rookie salary scale) aren't infringements on player autonomy, would the Bulls' rule infringe upon Carmelo's autonomy? One could say that Carmelo can still get around the rule and continue with his NBA career, because if he really cares that much about the headband, he can holdout and not get paid and hope the Bulls eventually either carve out an exception to the rule or trade him to a team that doesn't have the rule. And there are NBA teams that do not have this rule and that would love to have Carmelo, and in this alternative history, the Bulls drafted Carmelo knowing that he likes to wear a headband. So I suppose one could say that Carmelo's autonomy here remains, at least in some form. Contrastingly, with the league-imposed dress code, there aren't any teams that can opt out of it for players who don't like it; it is a league-imposed rule.

But let me argue against myself on that point. Couldn't a group of NBA players, from various teams, simply not show up to work and hope the NBA relents on the dress code, much like Carmelo could not show up and hope the Bulls change their policy (or trade him)? Yes, but the reality is that neither Carmelo nor the players would likely do so because each manifestation of one's autonomy has some finite value, particularly in relation to other forms of one's autonomy and also one's practical considerations, such as earning a paycheck. But that doesn't make the infringement right or socially-desirable. It just means that it only hurts a player "less" than would be required to keep his autonomy.

This post is probably too long, but just to quickly respond to T.J. on couple of other comments:

1) My statistical research was assessed and confirmed by two editors of ESPN the Magazine and two producers at HBO when I was on the Bob Costas show in 2005, as well as the editorial staffs of four law reviews (Case Western Reserve Law Review, Brooklyn Law Review, the University of Pennsylvania Journal of Labor and Employment Law, and the Virginia Sports and Entertainment Law Journal). There is no "statistical sleight of hand," as you put it.

2) I whole-heartedly disagree with your remark "I find it off-putting to employ the discourse of labor rights in a conversation about multi-million dollar athletes. I prefer to save the efficacy of that language for underpaid blue-collar laborers, undocumented immigrants, and sex workers-just to name a few." You are basically saying that the fact that these guys make a lot of money means their autonomy is not really a concern for you. Aren't they still people or do they somehow become less human because they make a lot of money? Or is it their wealth as much as who they are that bothers you: would you feel the same way about Bill Gates as you do about Allen Iverson?





16 Comments:

Aren't these autonomy losses rather transient? For instance, the dress code is surely at least a permissive topic of collective bargaining. If the players choose to accede to it during negotiations for the next CBA, has the loss of autonomy been eliminated?

On a related note, isn't the dress code a mandatory subject of colletive bargaining? It certainly seems to be a "term or condition" of employment in the NBA.

Also, many of these autonomy arguments seem to rest on questionable assertions. For example, you state:

"[I]f players object to a league-instituted dress code and believe it is a mixture of condescension and overbearingness that infringes upon their right to be who they are in ways that don't affect the lives of other people (i.e., the clothing other people wear should not bear on other people around them, perhaps save for not wearing any clothing or clothing that contains expletives), and they have no choice but to abide by it--it's not, for instance, a team rule or a collectively-bargained one, and pro basketball isn't a sport where there are rival and equivalent leagues offering substitute employment opportunities--that can be suggestive of autonomy."

The assertion underlying this argument is that Allen Iverson's clothes do not affect other people, but is this true? If parents would like their children to dress a certain way, but their children want to dress like Allen Iverson, isn't Iverson's clothing affecting parents in a significant way? Now, one can certainly argue that Iverson's autonomy interest should outweigh the parent's interest, but that is not obvious, especially when it is a private employment regulation rather than a government regulation at issue.

Finally, the entire autonomy argument is undercut by the fact that players chose to engage in a profession that they knew was controlled by a monopoly with the power to impose these sorts of regulations, subject to collective bargaining. When examined at this level of generality, the dress code is a risk the players voluntarily assumed by choosing to become professional basketball players.

Anonymous PK -- 11/29/2006 9:33 AM  


I don't know what's "off putting" about discussing labor rights in the context of professional athletes. Whether the NLRA should be amended to limit its reach to only "blue collar" workers may be a worthy debate, but until amended, professional athletes have the right to join a labor union and collectively bargain. Their salaries are irrelevant to the assertion of that right. These issues of "autonomy" are, for the most part, really issues of collective bargaining. I'm not familiar with the NBA CBA and thus am intrigued as to exactly how David Stern can unilaterally impose a dress code or even, for that matter, how Scott Skiles can ban headbands. Perhaps there are grievances pending or perhaps the CBA has a broad management rights clause. If that's the case, then the "assumption of risk" argument makes sense. It that's not the case, then the union needs to step forward and assert its legal rights. This may seem ridiculous to the average worker, but the issues there are really no different then any employer under a CBA unilaterally imposing a new work rule without first bargaining.

Anonymous Anonymous -- 11/29/2006 10:19 AM  


I've tried to respond to some of Michael McCann's comments on my blog. Check it out if you're interested. Thanks, TJ

Anonymous Anonymous -- 11/29/2006 12:19 PM  


Well, this is professional sport. What I mean is that if I go to work for a company, I sign my contract to work for that company knowing full well it's dress code rules etc.

If the company changes those rules, I'm obliged to keep them because I signed to be with that company and get 'behind' what the company is doing. I suppose, it would be good if the team here had a vote on these kinds of issues, like we would hope for at the corporate office... but this doesn't (obviously) always happen. But, it's about the TEAM not necessarily super-stars... which is where sport gets confused, doesn't it? I suppose, the same thing CAN happen in corporate where certain execs live exempt from rules of the company etc. so my basic point is that this is a problem in pretty much everything when it comes to our work. Unfortunately, professional sport does not escape real life in this instance either.

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