Spirit vs. Letter
This is belated, especially since Game Five has already been played in the Suns-Spurs series. And, I am not going to run through all of the voluminous coverage and commentary about the suspensions. But, there are a couple of threads of interest. So, I’ll follow those and we’ll see where they lead.
Most of the commentary on the suspensions has, to my surprise, been critical of them. Dwil has offered an interesting take – that there has been a pro-Suns bias out there and that, arguably, has influenced reaction to the suspensions. But, the reason I am surprised by the reaction to the suspensions is that sports media, in general, have tended to be a very rule-oriented group. If there is a rule, and it’s been broken, the tendency is to focus on the fact that the rule was broken rather than on whether the rule is valid. In this case, that has not generally been true. Instead, we’ve heard a lot sports media complain that while the letter of the law might have been properly enforced, the spirit was clearly violated since, as Sir Charles put it, the intent of the rule is to punish players for escalating fights, and neither Stoudemire or Diaw came close to doing that.
Furthermore, most observers (and fans) clearly believe that the NBA has, in unwarranted fashion, shot itself in the foot, by ensuring that the arguably most important game of the NBA season would be played under a cloud and with one of its stars MIA. Therefore, the implication goes, the league has thick-headedly enforced the letter of the law in violation of the law’s spirit and, by doing so, hurt the game itself.
When the incident first occurred, at the end of Game 4, and it became apparent that Stoudemire and Diaw would face suspensions and that, therefore, the Spurs would benefit from an altercation that one of their own obviously precipitated, I thought about Earl Warren and substantive due process. Warren, the Chief Justice of the United States Supreme Court from 1953 until 1969, presided over the court during an era in which substantive (as opposed to procedural) due process became a a major guide to judicial decision-making. And, as I understand it, when the court was considering a case affecting the rights of various groups to due process, Warren is said to have famously asked, on numerous occasions, when presented with a narrowly conceived argument that was procedurally correct – “yes, but is it fair?”
Of course, the Warren court was dealing with issues of fundamental import – from Brown v. Board of Education in 1954, to the rights of indigent prisoners to court appointed counsel, to Miranda rights and so on. And, it is fair to say – the suspensions don’t quite rise to that level of significance. But, as the Dorf on Law blog notes (via Sports Law Blog), the suspensions do evoke a fundamental line of debate within legal circles:
As a basketball fan AND a law professor, I’ve been enjoying how the familiar rules/standards debate has been playing out over the question of how the NBA should resolve this issue. (A similar debate involving the same rule erupted a number of years ago during a Knicks/Heat playoff series.) Suns fans and others point out how unfair it would be for the league to suspend one of the two best players on the Suns and a key reserve, even if Horry is also suspended, given that Horry was the instigator and that neither Stoudemire nor Diaw actually hurt or even tried to hurt anyone. Enforcing the letter of the rule, they say, would completely undermine its purpose, as it would reward violence by mediocre players directed at stars. (Footnote for Horry fans: Yes, he has made a career in recent years of hitting very big shots in crucial situations, but he is clearly less important to the Spurs than Stoudemire and Diaw are to the Suns.)
Meanwhile, Spurs fans and others have been providing the standard response: The main point of having rules as opposed to standards is to follow them regardless of whether their background justification obtains. A firm, no-discretion rule requiring a mandatory suspension for leaving the bench gives players a very strong incentive to stay put, and thus helps prevent incendiary circumstances from escalating out of control. Indeed, it could be argued that the rule did its work in this very case: Remembering the rule (albeit a tiny bit too late), Stoudemire and Diaw quickly returned to the bench, and other players from both teams remained on the bench. Thus, there was no fight.
Furthermore, the league is obviously sensitive to this particular perception – that its enforcement of the rule is perceived as unfair given that the team that started the altercation benefitted from it. Stu Jackson, the league official charged with adjudicating such matters said yesterday that “it’s not a matter of fairness, it’s a matter of correctness.” This particular phrase set Salon.com’s King Kaufman off:
No observer with any sense would think it just that although Monday night’s bad situation was caused by the Spurs and the only real violence was committed by a Spur, the Spurs lose only a journeyman rotation player — though one with an exaggerated reputation for hitting clutch shots — while the Suns lose a first-team all-NBA player and a versatile sixth man.
But the NBA isn’t interested in reason, justice or fairness.
The NBA’s greatest public relations problem is the perception by fans that the games aren’t fair, that referees call the games to favor superstar players and whichever team the league wants to win, usually the one with the more marketable superstar.
Commissioner David Stern thinks the biggest problem is the perception of the league as a haven for hip-hop-influenced thugs. That’s why his major initiatives of the past few years, other than the stupid synthetic ball briefly used this season, have been aimed at cleaning up that image. Those initiatives include a higher minimum age, a dress code and Draconian enforcement of behavior rules, which has turned the NBA into a technical-foul festival.
This thug business is a big issue with the corporate fat cats who buy the luxury suites and have Stern’s ear. And don’t think there aren’t some racial issues going on with the mostly white corporate crowd having a problem with the young black guys acting out. That same crowd hasn’t been heard calling for a crackdown on fighting in the NHL.
But out here among the public, for every conversation about pimped-out clothes and tattoos and angry young men, there are hundreds about how there are different rules for different players. Fans and former fans by the thousands, and maybe by the millions, believe the fix is in when the ball goes up.
And what the NBA really wants you to know is this: It’s not about fairness. That’s the message. In a sports landscape in which baseball is in perpetual crisis mode because the apparent widespread use of performance-enhancing drugs is seen by fans as giving some players an unacceptably unfair advantage, the tin-eared NBA is telling fans not to worry, it’s not about fairness.
A couple of points here. First, it bothers me, as it bothers many others, that the NBA has decided that the faintest display of emotion in NBA players needs to be stamped out. David Stern has been going around the last couple of days arguing that the real problem is that Stoudemire and Diaw were “unable to control themselves.” That strikes me as a deliberately overblown characterization: they saw a teammate get body blocked into the scorer’s table near their bench and, for about two seconds, stood up and reacted by moving toward the infraction, an entirely natural emotion under the circumstances. That they were reined in almost immediately (Stern used the word “eventually” to describe their return to the bench – which means that he and I have vastly different senses of time), suggests that they lacked “control” only in the most picky, trivial sense.
Bill Simmons spoke to this point well in his column on the suspensions:
But there’s a larger issue that everyone seems to be missing, an issue that keeps popping up during these playoffs in various forms and might be fixable: Namely, that the NBA turned the competitive sport of basketball into something else. It’s still basketball, only it’s a bastardized version of it. A certain amount of instinct and competitiveness has been compromised. Why? Because of the league’s misguided attempt to create a fairy-tale universe in which world-class athletes can play basketball without ever raising their voices, trash-talking, bumping bodies, exulting after a great play or rubbing each other the wrong way.
Simmons attributes this crackdown to the specter of Kermit Washington’s devastating punch to Rudy Tomjanovich thirty years ago. And, listening to Stu Jackson explain the suspensions to Mike and the Mad Dog yesterday, it’s clear that that specter is alive and well in the league’s offices (Jackson specifically mentioned the 1977 incident). It’s about more than that, though, as Kaufman rightly points. But, as much as I share Kaufman’s sentiments about what the league is cracking down on and why, I think he’s playing fast and loose with the word “fairness” here. The questions of fairness that arise in perceptions of superstar treatment for NBA players, or use of performance enhancing drugs revolve around the concern that some players are playing by a different set of rules than other players. Such a perception violates perhaps the most fundamental tenet of sporting competition – that athletes compete on a level playing field, with only their athletic talents determining the outcome of competition. The suspensions are, arguably, unfair in the sense that they benefitted the team that started the altercation and penalized players who didn’t actually get involved in the altercation. But, they are not an example disparate treatment of athletes. If anything, they represent an opposite pole of unfairness, one in which rules are applied too evenly, rather than not evenly enough.
Kaufman is on firmer ground when he points out that the league’s insistence on consistency appears, well, inconsistent:
If the rule is the rule, and all that matters is consistency, not applying the rule to the specifics of the situation, not taking into account the context and the damage done or any sense of fair play, what is the point of Stu Jackson’s job? An intern could look at the video, see that Stoudemire and Diaw took a few steps, and announce the suspensions.
If all that matters is consistency, if the rule is the rule, why was Derek Fisher of the Utah Jazz not disciplined for breaking the dress code by showing up for Game 2 of the Jazz’s series against the Golden State Warriors in a T-shirt and jeans? Sure, he’d just rushed in from New York where his infant daughter had had lifesaving surgery earlier in the day, but the rule is the rule.
Keep in mind, for consistency’s sake, that this is the series in which San Antonio’s Bruce Bowen was not suspended for kicking Nash in the crotch.
A couple of final points. One, the suspensions originally really bothered me in part because I still remember the 1997 brawl between the Knicks and the Heat, a brawl which featured the Heat’s PJ Brown responding to what he thought was dirty play by the Knicks’ Charlie Ward by throwing Ward into the basket stanchion late in Game Five. Several Knicks came off the bench, all got suspended and the Knicks had to play extremely short handed in the final two games of a series they should have won. Some Knicks, like Larry Johnson, came off the bench to get involved in the developing fracas, and clearly should have been suspended. Others, like Patrick Ewing, left the bench to move to an area on the court that was farther away from the altercation than he would have been had he stayed on the bench. If the league’s argument is that it cannot exercise any discretion in applying this rule, then the rule does need to change: it runs the risk of being idiotically applied, as it was in Ewing’s case.
Two, like everyone else, I was originally caught up in who was suspended – specifically the Suns leading scorer and rebounder. But, upon reflection, it occurs to me that this is irrelevant. If the rule needs to be changed to allow for more discretion, as I believe it does, that increased discretion should not include consideration of whom is involved. Whether it’s the 12th man on the team, or the star player, the league should develop consistently applicable standards. The league could determine that players leaving the bench will be subject to a suspension, depending on whether they actually got involved in an altercation and other factors. But, it should not consider whether, once it has determined an action worthy of suspension, the affected player would have a greater or lesser impact on subsequent games. In other words, there should not be separate treatment for better and worse players. Just more sense about the circumstances under which the rule should apply.