The NBA’s Constitution ties Adam Silver’s Hands

Photo Source: Michael Tipton, 2013 Phoenix Suns 2, FLICKR (Jun. 28, 2013) (CC BY-SA 2.0)

By: Brenna Golden*                                                        Posted: 10/21/2022

On Tuesday, September 13, 2022, the National Basketball Association (NBA) released the findings of an independent investigation into Phoenix Suns and Phoenix Mercury’s managing partner Robert Saver.[1] The independent investigation looked into misconduct relating to racism and sexual harassment.[2] The NBA’s investigation found that Sarver “engaged in conduct that clearly violated common workplace standards, as reflected in team and League rules and policies.”[3]  This conduct included “racially insensitive language; unequal treatment of female employees; sex-related statements and conduct; and harsh treatment of employees that on occasion constituted bullying.”[4] Despite finding that Sarver engaged in this inappropriate conduct, the investigation noted that Sarver’s misconduct was not motivated by racial or gender-based vitriol.[5] In conjunction with releasing the report, the NBA announced the punishment levied against Sarver.[6] The main provisions of the NBA’s punishment included a one-year suspension from the Suns and Mercury organizations, completion of training focused on respect and appropriate workplace conduct, and Sarver must pay a 10 million dollar fine.[7] The 10 million dollar fine is the maximum fine permitted by the NBA constitution and by-laws.[8] 

Despite the NBA issuing a maximum financial penalty, commentators criticized the penalty significantly.[9] Many critics felt that the penalty was not harsh enough and pleaded with NBA commissioner Adam Silver to levy a lifetime ban against Robert Sarver and force a sale of the teams.[10]  Some of the most prominent NBA figures, such as Lebron James, Chris Paul, and Draymond Green, have been vocal in their displeasure with the punishment.[11] In response to criticism, Silver told reporters that forcing the team’s sale is met with significant legal barriers and not easily achieved.[12] Silver noted that the rights of a team owner are substantially different from employees and complicates the process for removal.[13] When people become NBA owners, they sign the NBA’s constitution, which gives the commissioner broad power to punish owners for actions and conduct prejudicial or detrimental to the league.[14]  Additionally, the league can force an owner to sell the team if there is a 75% percent vote in favor amongst the league’s other owners.[15]  The NBA’s punishment imposed on Sarver represents an exercise of their power to punish owners, but Silver explained that the offensive behavior did not rise to the level of organizing an owner vote to force a team sale.[16] 

For NBA fans, the Sarver saga parallels disgraced former Los Angeles Clippers owner Donald Sterling.[17] In 2014, the NBA banned Sterling for life following the discovery of recordings in which Sterling made racist comments.[18] At the time, Silver announced that he would urge the NBA’s board of governors to force a sale of the team.[19] Ultimately, before the league forced a sale, Sterling’s estranged wife took control of the team and sold the Clippers to Steve Ballmer.[20] The differentiating factor between Sarver’s conduct and Sterling’s is that the league determined Sarver’s statements were not motivated by racial bias, unlike Sterling’s.[21] This differentiation did not quell the call for a forced sale of the Phoenix Suns and Phoenix Mercury.[22] 

Despite the backlash, the call for a forced sale of the team seemed highly improbable as Silver had not asked Sarver to sell the team voluntarily, and there was no discussion amongst the NBA’s board of governors to vote for a forced sale.[23] Without the support of fellow owners, a forced sale of the team was impossible, no matter how loud public scrutiny became.[24] The legal barriers created by the NBA constitution and the lack of support amongst other owners left a voluntary sale as the only possible option.[25] Ultimately the weight of public opinion won out, as Sarver announced he would sell the Phoenix Suns and Mercury due to the “unforgiving climate” surrounding the situation.[26] 

*Staff Writer, Jeffrey S. Moorad Sports Law Journal, J.D. Candidate, May 2024, Villanova University Charles Widger School of Law

[1] See NBA Releases Findings of Independent Investigation Into Robert Saver, Phoenix Suns, NBA (Sept. 13, 2022), https://www.nba.com/news/nba-investigation-robert-sarver-suns-official-release (describing the NBA’s investigation into Robert Sarver).

[2] See id. (discussing the basis for the NBA’s investigation).

[3] See id. (reporting on the NBA’s conclusions based on the investigation).

[4] See id. (explaining the conduct that the investigation found Sarver engaged in).

[5] See id. (elaborating on the motivation behind Sarver’s behavior).

[6] See id. (announcing that the NBA will punish Sarver based on the investigative findings).

[7] See id. (detailing the punishment imposed by the NBA on Sarver).

[8] See id. (describing the maximum financial penalties allowed by the NBA constitution and by-laws).

[9] See David McMenamin, After Robert Sarver Investigation, LeBron James Adamant NBA ‘definitely got this wrong’, ESPN (Sept. 14, 2022), https://www.espn.com/nba/story/_/id/34593743/after-robert-sarver-investigation-lebron-james-adamant-nba-definitely-got-wrong (discussing NBA star’s dissatisfaction with NBA’s decision); see also Jeff Zillgitt, The NBA’s Robert Sarver Situation Spotlights the Ugly Side of Sports, USA Today (Sept. 17, 2022), https://www.usatoday.com/story/sports/nba/columnist/jeff-zillgitt/2022/09/17/robert-sarver-suns-situation-spotlights-bad-side-sports/10383243002/?gnt-cfr=1 (discussing the public criticism in response to the announcement of Sarver’s punishment).

[10] See McMenamin, supra note 9 (detailing NBA player’s reaction to Sarver’s punishment); see also Zillgitt, supra note 9 (summarizing critic’s response to Sarver’s punishment and their call for a harsher penalty). 

[11]  See McMenamin, supra note 9 (describing disappointment with NBA’s handling of Sarver situation); see also Joseph Salvador, Draymond Green Rips NBA’s Punishment for Robert Sarver, Sports Illustrated (Sept. 20, 2022), https://www.si.com/nba/2022/09/20/draymond-green-gives-blunt-response-on-nbas-punishment-for-robert-sarver (reporting on prominent NBA figures responses to Sarver’s punishment).

[12] See Jack Maloney, NBA Commissioner Adam Silver Explains Why Suns Owner Robert Sarver Received Only a One-Year Ban, CBS (Sept. 15,  2022), https://www.cbssports.com/nba/news/nba-commissioner-adam-silver-explains-why-suns-owner-robert-sarver-received-only-a-one-year-ban/ (informing critics about the legal barriers to forcing a sale of an NBA team).

[13] See id. (describing the different rights owners have and the inherent difference in removing an owner compared to a regular employee).

[14] See David A. Fahrenthold and Matt Zapotosky, Legally, NBA Ban is Likely a Done Deal; Team Sale is a More Complicated Matter, Washington Post (Apr. 29, 2014), https://www.washingtonpost.com/politics/legally-nba-ban-is-likely-a-done-deal-team-sale-is-a-more-complicated-matter/2014/04/29/2b4217c0-cfd3-11e3-a6b1-45c4dffb85a6_story.html (reporting on the authority given to the NBA commissioner under the NBA’s constitution).

[15] See id. (detailing the process of forcing a sale of an NBA team as described by the NBA’s constitution).

[16] See Maloney, supra note 12 (explaining not pursuing a forced sale).

[17] See Duane Rankin, NBA Commissioner Adam Silver says Robert Sarver, Donald Sterling cases ‘very different’, USA Today (Sept. 14, 2022), https://www.usatoday.com/story/sports/nba/suns/2022/09/14/robert-sarver-punishment-adam-silver-explanation/10383805002/ (discussing the parallels between Donald Sterling and Robert Sarver).

[18] See Joseph Zucker, Clippers Owner Donald Sterling Banned for Life From NBA for Racist Remarks, Bleacher Report (Apr. 29, 2014), https://bleacherreport.com/articles/2042902-clippers-owner-donald-sterling-banned-for-life-from-nba-for-racist-remarks (discussing the punishment levied against former Los Angeles Clipper owner Donald Sterling).

[19] See id. (describing Adam Silver’s intention to hold a vote amongst NBA owners to force a sale of the Clippers).

[20] See Associated Press, Appeals Court Upholds $2 billion Sale of Clippers, ESPN (Nov. 16, 2015), https://www.espn.com/nba/story/_/id/14147968/donald-sterling-loses-appeal-reverse-2-billion-sale-los-angeles-clippers (explaining how the Clipper’s ultimately were sold prior to a vote for a forced sale).

[21] See NBA Releases Findings of Independent Investigation Into Robert Saver, Phoenix Suns, supra note 1 (reporting the NBA’s investigative findings regarding Sarver’s animus).

[22] For further discussion of public backlash in response to Sarver’s punishment, see supra notes 9-11 and accompanying text.

[23] See Scott Cacciola, Tania Ganguli, and Kevin Draper, Suns and Mercury Owner Plans to Sell Teams Amid Scandal, New York Times (Sept. 21, 2022), https://www.nytimes.com/2022/09/21/sports/basketball/robert-sarver-phoenix-suns-mercury.html (discussing Adam Silver’s responses when questioned about forcing a sale).

[24] See Fahrenthold, supra note 14 (discussing the necessary procedures the league must follow to force the sale of an NBA team).

[25] See Maloney, supra note 12 (detailing ways that the NBA can force a sale).

[26] See Cacciola, supra note 22 (reporting that Sarver will voluntarily sell both Phoenix teams).