Citizen Enforcement of the Rules

In American law, private citizens' suits to enforce public rules are allowed (particularly in the environmental context) where the issues are particularly local and regulators are likely to be too far removed from the situation to reliably act. (This could be said about a variety of regulatory contexts, including finance, labor, agriculture, and so forth. One wonders, actually, why the US Congress has authorized citizen suits in environmental settings but not much elsewhere.)

In Wednesday night's Charlotte-Orlando game, Bobcats guard Gerald Henderson Jr. decided that Dwight Howard's lollygagging at the free-throw line deserved sanction. Henderson used his fingers to conspicuously count seconds while Howard stood at the line: 1... 2... 3... up to 10. When Henderson hit 10, the referees whistled Howard for a violation of the NBA rule, thus nullifying his FT attempt. (Angered, Howard tossed a ball and earned a technical foul.)



Orlando and its fans may loathe Henderson for being a jerk, but someone needed to prod the referees into action. As long noted, we at JPO want rules to be applied consistently, without regard for the identity or reputation of the players involved. If referees will not whistle Howard for his slow free-throw form, it is efficient for a guard like Henderson, who stands behind the line otherwise doing nothing while watching the FT, to incontrovertibly highlight the violation.

The NBA has a long-standing practice of fining players or coaches who publicly criticize referees. It is fair to say that the NBA does not see a need for citizen patrolling of its regulators; rather, the NBA feels that the referees are sufficiently close to the action that they should be able to see all rule violations. (This is actually a plausible story; an NBA referee can catch a slow FT attempt or a "Jordan pushed off" moment more easily than a regulator in DC or Chicago can find contaminated effluent in rural Iowa. However, a fourth referee on the court would help matters.) Will Henderson now receive a fine for his implicit critique of the Wednesday officials? Seems that the league might lose credibility if Henderson is not fined.