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Friday, August 03, 2007
Roy Tarpley, Addiction, and the American with Disabilities Act

Roy Tarpley is among the best basketball players who never starred in the NBA. After a stellar career at the University of Michigan, Tarpley, a 7'0 power forward, was selected 7th overall by the Dallas Mavericks in the infamous 1986 NBA Draft, a draft that saw the late Lenny Bias drafted second by the Boston Celtics and Chris Washburn--who Sports Illustrated recently named the second worst draft bust in NBA history--taken third by the Golden State Warriors.

Tarpley initially seemed like a star in the making. He made the NBA's all-rookie team, and, in his sophomore season (1987-88), won the NBA's 6th Man of the Year Award, averaging 14 points and 12 rebounds a game, while playing in almost every game for a team that won 53 games and made it to the Western Conference finals. During this time, however, Tarpley sought out counseling and treatment for a worsening addiction to cocaine and alcohol.

Unfortunately, neither the counseling nor treatment worked. In fact, Tarpley's third season proved to be the beginning of his career's end. He started to suffer a series of knee injuries, which hampered his play and caused him to miss games. The time off wasn't a blessing, as he more heavily dabbled in cocaine and other drugs, and also began consuming more alcohol. He then proceeded to fail mandatory drug tests and the NBA suspended him indefinitely on January 5, 1989. The NBA would allow him back for the 89-90 season, but six games into that season, Tarpley was arrested for driving while intoxicated and resisting arrest. The 1990-91 season didn't fare much better for Tarpley, who blew out his knee five games into the season, causing him to miss the rest of the season. Still sidelined with a knee injury in March of 1991, Tarpley was arrested again for driving while intoxicated, and the NBA suspended him for it.

Tarpley didn't play in the 1991-92 season because, after failing his third drug test, the NBA banned him for life under the league's collectively-bargained anti-drug program. Tarpley would then play in Greece for a couple of years. He enjoyed success over there, leading his team, Aris BC Salonica, to a championship (the European Cup) in 1993.

But Tarpley wanted to return to the U.S., where his family lived, and get back in the NBA. So in 1994, Tarpley applied for reinstatement to the NBA, and the league granted it. The then 29-year-old signed a 6-year contract with the Mavericks for $20 million, and played well for 55 games in the 94-95 season, averaging 13 points and 8 rebounds a game, but he then failed another drug test--for using alcohol and violating the terms of a court-imposed personal after-care program. With the third strike, the NBA kicked him out for good, thus negating the remainder of his $20 million contract.

Tarpley then returned to Greece, where he would play for the next few years. In 2000, however, he came back to the U.S. and, for unclear reasons, did not work. By 2003, Tarpley was completely broke, and he applied for reinstatement to the NBA. His financial woes primarily stemmed from two civil judgments entered against him in 2000 totaling about $8.5 million -- as reported by a Dallas Business Journal article in 2003, "both judgments stemmed from the 1997 death of a Good Samaritan who tried to help a girlfriend of Tarpley's who was behind the wheel of a car he owned that flipped over on a freeway." At that time, things looked really bleak for Tarpley:
The man who in 1994 signed a reported six-year, $20 million contract with the Mavericks said in his bankruptcy petition that he did not have any cash on hand, checking or savings accounts, household goods, investments or cars. 

Tarpley could not be reached for comment. But in a June 13 creditors meeting in the case, he said he has been unemployed for four years, and that he was staying with an unnamed friend in Arlington. 

Tarpley indicated this person, or persons, had fed and otherwise provided for him, as he does not have any income. His bankrutpcy attorney, Stanley Burch, says Tarpley has a "wonderful girlfriend" who has provided him with a $10 weekly allowance to "take care of his situation." 

"Her family cares for him deeply," says Burch, who practices in Dallas. 

Tarpley has at least $8,596 in credit card bills, $36,348 in federal tax liabilities dating to 1994 and a California state tax bill of $13,324 from 1995, filings show. Much of his fortune was wiped out in a divorce case about eight years ago.
Although John Lucas fought hard for Tarpley's reinstatement, noting that Tarpley had remained in good physical condition and had repeatedly passed drug tests (including those for alcohol, the substance which led to Tarpley being banned in 1995), the NBA rejected the petition. Tarpley tried several more petitions, but the NBA kept saying no. Still wanting to play pro hoops, Tarpley signed with the Michigan Mayhem of the Continental Basketball Association, where he would play from 2003 to 2006. Although often injured, he excelled in his first season, averaging 16 points and 10 rebounds a game, while shooting almost 60% from the field. But he would be out of job in 2006, when his team disbanded. Tarpley was 41 at the time.

Should the NBA have reinstated Tarpley in 2003, when Tarpley had shown that he had been clean for years and was in good enough condition to land an NBA contract? Tarpley thinks so. And now so too does the Equal Employment Opportunity Commission, which ruled today that the NBA violated the Americans with Disabilities Act by failing to reinstate him. The EEOC has tried unsuccessfully to mediate a settlement between Tarpley and the NBA, and he is seeking at least $6.5 million, according to his attorney Joe Walker, who said, "The goal of the whole action is to get him reinstated, get his name back, and also to compensate him for the loss he's incurred."

The ADA protects those with disabilities from discrimination, provided their disabilty is "a physical or mental impairment that substantially limits a major life activity." Alcoholics and drug addicts (although not those engaged in current use of illegal drugs) are protected by the ADA, provided they are able to perform the essential functions of the job. The EEOC believed that Tarpley offered enough evidence that he could play in the NBA, since he showed that he no longer used drugs and apparently had his alcoholism under control.

I find the EEOC's decision--which enables Tarpley to sue the NBA within the next 90 days---interesting because it suggests that the NBA and other pro leagues have to be careful when banning players for life when the root of the problem is a medical one. Although alcoholics and drug addicts are often blamed for "choosing" to engage in destructive behavior, recent studies on how the brain works suggest such behavior is largely not reflective of conscious choosing (see an article we have up on The Situationist entitled "The Science of Addiction, the Myth of Choice"). That's not to say that Tarpley shouldn't be held responsible for the consequences of his addition (certainly, driving a car while intoxicated deserves punishment), or that he didn't deserve a punishment of a reasonable length of time, particularly after repeated failures, but it does suggest that when leagues kick out players for life, they need to be careful in evaluating the underlying causes of behavior and the potential that people can eventually get better, as Tarpley seemed to do.

Another interesting consequence: even though the NBA and NBPA collectively-bargained the anti-drug policy, that collective-bargaining wasn't enough to defend the policy from governmental scrutiny. Collective bargaining, of course, doesn't insulate an agreement from federal disabilities law as it does for federal antitrust law, but in practice, it usually discourages governmental scrutiny. Tarpley defeating the NBA would more clearly establish that leagues and players should not expect their agreed-upon drug and alcohol policies to be exempt from legal challenge.

2009 Update: Tarpley has settled his lawsuit with the NBA and Mavericks and will receive an undisclosed amount of money.


Would Tarpley have gotten any money from his last NBA contract if he had been reinstated in 2003? If not, reinstatement would've been an empty gesture as his chances of making a team roster would have been next to nothing. He was in his late 30's and almost ten years out of the NBA.

Anonymous Peter -- 8/03/2007 3:14 PM  

This is a sad commentary on our society. It looks like a total setup by a hapless loser with nothing left to lose so he sues someone. It reminds me of those cases where someone burglarizes a house and gets hurt and then sues the homeowner for the injuries. It's sadly humorous that the EEOC purports to determine who has the ability to play in the NBA and then lets him sue off of that. What evidence did they have - some expert testimony? The guy had not played ball anywhere in 3 years, let alone play at a high level. If he could have played in the NBA, then he could have played in a minor league or abroad. But evidently he didn't, so how likely is it that he could have played in the NBA? I guess cynically what this teaches is the NBA should have just reinstated him and let him tryout. He would not have gotten a contract from anyone and they would not have gotten sued. Also humorous is that Stern used to be a labor lawyer.

Anonymous Anonymous -- 8/03/2007 3:38 PM  

I'm baffled by the EEOC's decision. That ADA states that drug addiction is not a disability within the meaning of the Act. Tarpley was banned for life for failing drug tests. QED his punishment does not violate the ADA. In theory, the policy could potentially violate the ADA if it had a disparate impact on the disabled, but I don't see how that could be the basis for the decision.

Does anyone know anything more about this? Did the EEOC buy that the NBA is still disciplining Tarpley for perceived alcoholism?

Anonymous Anonymous -- 8/03/2007 5:35 PM  

The way I read this, the EEOC was unable to successfully mediate the dispute between Tarpley and the NBA. It doesn't mean that Tarpley will be successful in a lawsuit against the NBA by any means, if he even chooses to pursue it that is. This is a huge uphill battle for Tarpley. He says right now it's all about him "getting his name back" and "being able to help someone who's struggling with issues." I'm not sure how that translates into a viable legal claim.

Blogger Rick Karcher -- 8/04/2007 9:16 AM  

Couldn't the NBA legitimately argue that Tarpley was thrown out because of drug useage and DWI, not alcoholism? When is enough, enough???

(Follow-up: Whatever happened to the case in Illinios (I think), in which a 17-year-old basketball player, booted out for being drunk--a violation of any number of rules, much less the law--tried using the ADA to get himself reinstated, claiming that he was covered by ADA as an alcoholic?)

This sounds as bad as Steve Howe, who was tossed out of MLB seven times, only to be reinstated by court order or arbitrator on the last FOUR occasions!

Anonymous Anonymous -- 8/04/2007 12:48 PM  

I need to go back and look at that 1986 draft again. There were some odd occurrences that year for sure.

Anonymous mesa arizona auto insurance, car, home owner insurance -- 8/05/2007 11:24 AM  

Prof. Karcher:

I don't understand how you square your view with the following quote from the article linked to in the post: "The EEOC ruled that the NBA violated the Americans with Disabilities Act by failing to reinstate Tarpley, 42, who has passed all drug tests taken in the last four years, EEOC District Director Spencer Lewis wrote in a letter of determination dated May 17. The letter was sent to Tarpley, the Mavericks and league attorneys."

Of course, just because the EEOC says a violation occurred does not mean Tarpley will win in federal court. But I do not understand how the EEOC could have reached its conclusion.

Anonymous Anonymous -- 8/05/2007 2:31 PM  

To clarify a point about the ADA, drug addiction is specifically cited as placing a person in a protected class.

What is not protected is the current use of illegal drugs, which is specifically cited as being outside the protections of the ADA.

The ADA says "Current illegal use of drugs means illegal use of drugs that occurred recently enough to justify a reasonable belief that a person's drug use is current or that continuing use is a real and ongoing problem."

It goes on to say, in the definition of disability, that "Disability means, with respect to an individual, a physical or mental impairment that substantially limits one or more of the major life activities of such individual; a record of such an impairment; or being regarded as having such an impairment.

(1) The phrase physical or mental impairment means --

(iii) The phrase physical or mental impairment includes, but is not limited to, such contagious and noncontagious diseases and conditions as orthopedic, visual, speech, and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, mental retardation, emotional illness, specific learning disabilities, HIV disease (whether symptomatic or asymptomatic), tuberculosis, drug addiction, and alcoholism;"

I'm not sure how the collective bargaining agreement, which supports the lifetime ban, will play into how the court views this situation.

BTW, Tarpley played for several years in Europe. He was still injury prone and still productive in a competitive environment that sends players to the NBA.

Blogger zak822 -- 8/06/2007 11:37 AM  

zak822, I don't think that DWI or DWAI (the lesser of the "drunk driving" charges, usually between .04 and .08 in Colorado) is covered under the ADA; further, the NBA could also--if the clause exists--toss Tarpley under a clause similar to "conduct bringing the league into disrepute".

Prof. Karcher (or any of the other hosts): How can the EEOC legally even be involved??? Tarpley was tossed out over failed drug tests and drunk driving--neither of which is under the ADA--and, as a condition of reinstatement, he failed again! At this rate, this misuse of the ADA will make it nearly impossible to fire someone for being drunk on the job--or drunk at school, to the point of being tossed off his high-school team.

Anonymous Anonymous -- 8/06/2007 9:19 PM  

"Tarpley played for several years in Europe. He was still injury prone and still productive in a competitive environment that sends players to the NBA."

Thats true!

Anonymous Sport Forward -- 8/07/2007 4:34 AM  

My guess is Tarpley's argument goes something like this:

1) I am an alcoholic and a drug addict (both protected disabilities under the Act).
2) I was banned from the NBA because of past drug and alcohol use.
3) When I applied for reinstatement in 2003, I had been sober for ___ years--a long enough period of time that no reasonable person could believe that my use is current or a real and ongoing problem).
4) The refusal to reinstate me thus cannot be based on unprotected current drug/alcohol use, but on my protected condition as an alcoholic/drug addict.

This is not a parade-of-horribles situation. The argument (and the EEOC's acceptance of it) does not prevent employers from firing employees who are drunk or high on the job. It only prevents them refusing to hire them based on a long-enough-ago incident (how long that must be is unclear) when all indications are that the employee truly has cleaned up his act.

Now, a ruling such as this might force teams and leagues into more "Steve Howe" situations: Take more chances on reinstating past drug-users and, perhaps, getting burned by it. But the ADA is, in part, about second chances.

Blogger Howard Wasserman -- 8/07/2007 8:25 AM  

I agree with Howard's comments. I just wonder whether there should be a labor exemption to the ADA, similar to the way the antitrust exemption works. It's definitely a mandatory subject, and if management and labor have negotiated at arms length, shouldn't claims that assert rights inconsistent with the CBA be exempt?

Blogger Rick Karcher -- 8/07/2007 12:43 PM  

Very sorry for Tarpley, who’s addiction to cocaine and alcohol has ruined his initial career. The anti-drug messages "Just Say No to drugs" and a dire warning: "This is your brain on drugs” should be spread across the kids and also we should give information on Damage Drugs Cause. To make this world totally drug free we got to detox our selves in the first place with the detox drinks and capsules which are available . Let’s detox ourselves and stop using drugs in future

Blogger madhu -- 8/07/2007 10:50 PM  

Does anyone know how to get a copy (or even if you can) of the EEOC decision?

Blogger Eric -- 8/10/2007 4:43 PM  

Saying that drug addiction is not a disability is way too vague. At what point a disability becomes that?

Anonymous ibogaine treatment -- 2/04/2009 12:29 AM  

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