Earlier this month, the NBA fined Sacramento Kings assistant general manager Wes Wilcox $15,000 for confronting staff at the scoring table. Wilcox had left his seat to challenge the clocking of a jump ball in a game against the Miami Heat. The fine did not generate much controversy.
How can the NBA fine someone who does not work or have a CBA with the NBA?
Wilcox’s employer is obviously the Kings, which are owned by Vivek Ranadivé and Arctos Sports Partners. The Kings, not the NBA, are paying his salary and benefits. Wilcox owes workplace duties to the Kings, not other companies. The NBA didn’t hire Wilcox and they can’t fire Wilcox.
If Wilcox played for the Kings, he would be a member of a union, the National Basketball Players‘ Association. The NBPA and NBA collectively negotiate rules governing player wages, hours, and other working conditions. Through a CBA, there is a clear line between NBA players and the NBA.
If Wilcox owned the Kings, he would have signed, among other NBA documents, a franchise agreement and a joint venture agreement, in which an owner acknowledges that the commissioner has the final say. As with the players, there is a clear line between NBA owners and the NBA.
Team leaders? The line is dotted.
As part of their employment contracts with the teams, the executives accept the authority of the league. Article 35A of the league’s constitution – itself a contract between the league, the teams and the owners – squarely obliges the teams to “provide and require in each contract with any of its owners, officers, managers, coaches or other employees be bound and governed by the Constitution.” Yet the contractual obligation of the executive is owed to the team, not the league.
This arrangement is not unique to the NBA. The same apparatus is used by other major professional leagues, except those where the league owns the operations and is therefore the sole employer (think UFC or XFL). Article VI of the MLB constitution, for example, requires club employment contracts to state that employees “agree to submit to the jurisdiction of the commissioner and to accept the decisions of the commissioner made in accordance with this constitution.” “.
Leagues, owners and even managers have reason to accept this framework. Owners may be reluctant to reprimand an officer who tries to help the team win, even in a way that is against league rules. Would an owner punish a GM for privately contacting a future free agent’s agent – something GMs of other teams probably do – before the league clears it? Left only to a good faith promise to self-arbitrate, like a pick-up game where players call their own fouls, some teams would do better than others.
This is where the league comes in. He can ensure fair play by applying the rules as evenly as possible. It is therefore rational that the leagues can punish executives, even if the legal path is winding.
For more, see my law review article, “Missing Link: League Punishments of Team Executives,” to be published by the Law Journal of Saint-Louis University.