From his franchise-history-making signing back in 2019 to last week’s move to the Dallas Mavericks, Kyrie Irving has continuously made both himself and the Brooklyn Nets the main topic of discourse surrounding the sport. Among these discussions were allegations of Irving spreading antisemitic rhetoric, when he received public backlash after posting a link to a film on his social media.
Many people raised questions about Irving’s punishment, including Jaylen Brown, a vice president of the National Basketball Players Association’s (NBPA) Executive Committee. While the NBPA was considering filing an appeal to the Nets’ decision, Brown and others acknowledged there was no clear precedent or rules set to resolve this matter:
“There is an interesting distinction between what somebody says verbally and what somebody posts as a link on a platform with no description behind it,” Brown said. “Some people will argue there’s no difference and some people will argue there is a difference. There’s no language in our [Collective Bargaining Agreement (CBA)]. There’s no rules against it. This is uncharted territory for everybody, and everybody is trying to figure out the difference between the two.”
On November 8, 2022, the Nets were unexpectedly hit with a National Labor Relations Board (NLRB) charge from an independent labor activist group, The Labor Organizers. The charge alleged that the team violated federal labor law, specifically § 8(a)(1) of the National Labor Relations Act (NLRA), by suspending Irving instead of revoking his contract under the waiver protocol in the NBPA collective bargaining agreement and the league’s standard contract.
“Under the [uniform player contract] and CBA a team can terminate a[n]…employment contract by first following the waiver protocol,” the charge read. “The Brooklyn Nets indefinite suspension of the employee is a tactic to avoid compliance with the waiver protocol. If the employer followed the waiver protocol…[the] contract with the Nets would officially end and …[the] free agency period would begin.”
On December 20, 2022, the NLRB approved the withdrawal of the charge against the Nets. This leads us to the question: could a NLRB action against the Nets for its suspension of Irving have been sustained?
Section 8(a)(1) of the NLRA labels certain employer actions that “interfere with, restrain, or coerce employees, in the exercise of the rights guaranteed in Section 7” as unfair labor practices. Section 7 grants employees the right to join unions, collectively bargain, and “engage in other [protected] concerted activities for the purpose of collective bargaining or other mutual aid or protection.” (Nets Charge) Activities are protected under the NLRA if they concern an employee interest and concerted if the activities are done with or on authority of other employees. However, “an employee engaged in otherwise protected, concerted activity may lose the Act’s protection through misconduct.” (Nets Charge)
Under Section 7, for Irving’s activity to be considered “protected or concerted” pursuant to the NLRB, Irving’s posts would need to be work-related issues – such as pay and benefit disputes, working conditions, or an attempt to initiate group action through social media (Social Media). Irving’s post may not be related to employment enough to meet this, particularly since the post was a link to a film discussing non-employment related issues. While he was asked about the social media posts during public relations interviews hosted by the team, the questions were directed to the film’s content and his interpreted support of the film rather than questions related to his suspension. Because the activity Irving was participating in through social media can be seen as tangential to his conditions of employment, the activity would not likely be protected or concerted.
Article 35 of the NBA Constitution delineates a more general determination of the Commissioner’s leverage in misconduct situations. The document gives the Commissioner power “to suspend for a definite or indefinite period, or to impose a fine not exceeding $50,000, or inflict both such suspension and fine upon any Play who, in his opinion, (i) shall have made or caused to be made any statement having, or that was designed to have, an effect prejudicial or detrimental to the best interests of basketball or of the Association or of a Member….” (Exhibit A-24).
The league’s CBA also covers various aspects of discipline, including violent misconduct, firearm possession, and controlled substances. Missing from the language on player misconduct, as Brown mentioned, are directions on how to handle off-court statements. The league has dealt with misconduct from players similar, but still differentiable, to that by Irving. In March 2021, Miami Heat center Meyers Leonard was fined $50,000, suspended for a week, and required to participate in a cultural diversity program for using antisemitic slurs. The NBA fined Minnesota Timberwolves guard Anthony Edwards $40,000 for making anti-LGBTQ+ remarks on social media last September.
There are a few key differences in Irving’s situation as opposed to Leonard’s and Edwards’s. The required $500,000 donation to a non-profit awareness foundation, if construed as a fine, far exceeds the cap set by the NBA Constitution. Additionally, Irving’s minimum five-game suspension is longer than Leonard’s week ban from team and practice activities. However, one could argue that it was an indefinite suspension in the presence of measurable requirements to return to play.
Irving’s initial posting of the link to the movie may not be considered as explicit as the language used by the other players. However, his doubling down during media conferences in the days following the uproar might have increased the explicit nature of his conduct to be a representation of an endorsement of the film’s rhetoric, meeting the standard of “an effect prejudicial…to the best interests of basketball….”
Case law regarding employer discretion in disciplining employees might have proved useful to Irving’s cause. In the NLRB case 800 River Rd. Operating Co., the opinion grappled with whether to affirm a finding that an employer violated Section 8(a)(5) of the National Labor Relations Act when it disciplined employees without notifying the union and giving it a chance to bargain. The case turned on the question of “whether an employer’s individual disciplinary action is similar in kind and degree to what the employer did in the past within the structure of established policy or practice.” 369 NLRB No. 109 (5).
With the league’s CBA expiring after the 2023-24 season, and an extension of the opt-out deadline to June 30, both the NBA and NBPA are looking at the possibility of a lockout. Rumored to be high on the list of priorities for the new negotiations are new guidelines dealing with conduct like Irving’s. For now, Irving and the Nets have parted ways, and a tumultuous period in the league’s history has seemingly come to an end. Irving’s six-step path to redemption is arguably more intensive than Leonard or Edward’s penances. However, the absence of language in the NBPA CBA regarding verbal misconduct, coupled with the discretion given to the Commissioner in the NBA Constitution, are strong barriers to relief under the NLRA consistent with NLRB case law.
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