Earlier this month, the NBA fined Sacramento Kings assistant general manager Wes Wilcox $15,000 for confronting personnel at the scorer’s table. Wilcox had left his seat to dispute clock management of a jump ball in a game against the Miami Heat. The fine hasn’t sparked much controversy.
How can the NBA fine someone who neither works for, nor is bound by 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, pay his salary and benefits. Wilcox owes workplace duties to the Kings, not other businesses. The NBA didn’t hire Wilcox and it can’t fire Wilcox.
If Wilcox played for the Kings, he’d be a member of a union, the National Basketball Players’ Association. The NBPA and NBA collectively bargain rules governing players’ wages, hours and other working conditions. Through a CBA, there’s 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, wherein an owner acknowledges the commissioner has final say. As with players, there’s a clear line between NBA owners and the NBA.
Team executives? The line is dotted.
As part of their employment contracts with teams, executives accept league authority. Article 35A of the league constitution—itself a contract between the league, teams and owners—bluntly obligates teams to “provide and require in every contract with any of its owners, officers, managers, coaches or other employees that they should be bound and governed by the Constitution.” Still, the executive’s contractual obligation is owed to the team, not the league.
This arrangement isn’t unique to the NBA. The same device is employed by other major pro leagues, save for those where the league owns the operations and is thus the sole employer (think UFC or the XFL). Article VI of MLB’s constitution, for example, requires that clubs’ employment contracts stipulate that employees “agree to submit themselves to the jurisdiction of the Commissioner, and to accept the Commissioner’s decisions rendered in accordance with this Constitution.”
Leagues, owners and even executives have reason to accept this framework. Owners might be reluctant to reprimand an executive who is trying to help the team win, even in ways at odds with league rules. Would an owner punish a GM for privately reaching out to the agent of a soon-to-be free agent—something other teams’ GMs are likely doing—before allowed by the league? Left only to a good faith pledge to self-officiate, like a pickup game where players call their own fouls, some teams would do better than others.
That’s where the league enters. It can ensure fair play by enforcing rules as uniformly as possible. It’s thus rational that leagues can punish executives, even if the legal path is curvy.
For more, check out my law review article, “Missing Link: League Punishments of Team Executives,” which will be published by the Saint Louis University Law Journal.