David Stern's John Hancock

Why is the signature of NBA Commissioner "David J. Stern" emblazoned on every NBA game ball? This is like if the property manager of your mostly-rental apartment building decided to hang his portrait in every elevator.

Sure, Stern, like your building manager and the US President, has been hired to enforce rules and keep the house in good working order. But Stern is best thought of as a career bureaucrat, not a politician. He was not democratically elected by most of the stakeholders of the NBA, viz. players and fans. The owners hired him 26 years ago to enforce an arcane set of rules that they agreed upon. A loyal fonctionnaire, he is good at his job and doesn't feel like leaving. This could be contrasted with U.S. Treasury Secretary Timothy Geithner, who was appointed by a democratically-elected President and confirmed by a democratically-elected Senate. When I see Tim G's signature on my money, I know that he's the guy whom my representatives approved to manage the common fisc.

For this reason, my analogy might fall apart if you changed the hypothetical apartment building to mostly owner-occupied. In such case, the building manager could be seen as a truly democratically supported agent of the residents. In that case, I might not mind seeing his smiling mug as I stepped into the lift.

But I'm sorry, David Stern is not the face of the league. (That role can be inferred by looking at the guys who appear in NBA Cares ads: Nash, James, Bryant, Yao.) He has no popular accountability to anyone, save the 30 owners who control revenues and intangible assets of the league. And really, who cares about them?

Solitary, Poore

In suspending Gilbert Arenas and Javaris Crittenton for the remainder of the 2009-10 regular season, David Stern announced yesterday: "The issue here is not about the legal ownership and possession of guns, either in one's home or elsewhere. It is about possession of guns in the NBA workplace, which will not be tolerated."

If the players' compliance with applicable public laws is not relevant to Stern's decision, then why did he wait until Arenas and Crittenton completed their plea agreements with the DC authorities? Why not make the suspension decision immediately when the news about the locker-room gun incident emerged?

Stern appears to be a rather disingenous leviathan.

Seems Like The Movies

Gilbert Arenas's recent legal problems have thrown light upon Section 16(a)(i) of the standard NBA player contract:

The Team may terminate this Contract [...] if the Player shall: [...] at any time, fail, refuse, or neglect to conform his personal conduct to standards of good citizenship, good moral character (defined here to mean not engaging in acts of moral turpitude, whether or not such acts would constitute a crime), and good sportsmanship, to keep himself in first class physical condition, or to obey the Team’s training rules.

Several pundits have suggested that the Wizards should void Arenas's contract under this "moral turpitude" clause. To my knowledge, no NBA team has ever attempted to invoke that clause, and it has never been litigated, either within the NBA's private appeals process, or in a real court. Unfortunately, "moral turpitude" is not defined further in the contract; nor is "first class physical condition". If Arenas were to be convicted of a felony, that might qualify as "moral turpitude" in the eyes of a judge or jury, but really, who knows? Construing an ambiguous contractual (or constitutional or statutory) clause is tricky business, especially when the document provides no helpful context.

Why didn't the NBA or the Players Association insist on defining the meaning of "moral turpitude" further, during the last negotiation in 2005? If they agreed on some negotiated set of taboo behaviors (murder, rape, spitting on the flag), however outlandish, it is likely that a player would eventually breach one of those covenants. Heck, NBA alum Jayson Williams killed a man just a couple years after retirement. Perhaps the NBA doesn't really want to the power to void contracts; owners would rather not wield such a veiled threat, lest players push for even more money so they can bathe in such a risky pond. And it's clear why the Players Association would rather keep this clause fuzzy. Status-quo bias has likely preserved the clause over a number of years.

[As a side note, it feels a bit surprising to contemplate that a real court could in fact pronounce on what the "moral turpitude" clause in NBA contracts actually means. I think that often, individuals living in an all-encompassing community (a university, the military, a pro sports team) tend to forget that ultimately they and their patron are subject to public laws, just like every other citizen and organization. The private entity may purport to lay down its own law and order, but ultimately, we are all part of one community. The only entity that US courts have consistently refused to regulate, oddly, is the legislature.]

Stern Apologists

I couldn't avoid being provoked by the attempted defense of Massa Stern by my colleague, Mr. B. Atlantic.

Even if you are in favor of the age limit, Mr. Atlantic's response reeks of paternalism and elitism. I suppose Mr. Atlantic's perspective is obvious given his off-hand (and perhaps unneeded) reference to coordination failures on Wall Street (or as some would say, Wall Cheat). But I wonder why the other side thinks that NBA players can't take care of themselves, and perhaps more importantly, why those players who are not on Mr. Atlantic's Eight Fold Path would be remedied by being forced to go to college for one year.

First, the elitism and tinges of racism. I'd be curious to know Mr. Atlantic: how many of these high school to pro players are coming from "rusty gyms in the Mississippi"? Indeed, what fraction of the players affected by the age limit are white? Even in percentage terms, this policy surely differentially hurts the African-American players.

Second, the analysis rests on shoddy counterfactual reasoning. I'm not convinced that LBJ, Howard and Ellis would have behaved any differently had they been forced to go to college. I could easily have imagined it the other way. Atlantic seems to forget the other iron law of unintended consequences. The policy leads to players going to Europe until they turn 19. Does he expect the players to get counseling on condom use on the French Riviera?

Finally, and most importantly, why is forcing someone to go to college for one year the best way to help someone get on the right track? That is, why doesn't the NBA provide more services for these young players, such as someone to help manage finances, the press, family obligations, etc. to get them on the Eight Fold path. What in particular do they learn in college that is relevant? There are much better ways to deal with the alleged issues than forcing someone to go to college.

The obvious answer as to why the NBA does not consider this is that it would directly take out of Massa Stern's pockets, something which he and the owners he represents are unwilling to do.

Paternalism and "Massa" Stern

Today's New York Times has a piece by LBJ biographer Harry Gerard Bissinger III (also known as Buzz and author of Friday Night Lights) describing how we "got punked" by Massa Stern that is well worth reading.

Bissinger's piece displays a shrewdness which affirms his status to be the Kissinger of sport journalists. (I'll understand if you can't get past the paragraph that starts... "If David Stern truly cared about his players’ well-being...")

As BB argues, the age limit on players entering the NBA is obviously a bad policy: it simply takes the rents the players could have earned on their exceptional talents and distributes it to the NCAA. The puzzle for me is, why is the the NBA interested in subsidizing the NCAA?

There was one other place we got punked by Massa Stern and his paternalistic attitude to the NBA players: The NBA dress code.

Why do the players agree to this nonsense?