Today’s guest lecture courtesy of Mark Pike, occasional contributor and long-time reader.
During a particularly inspired round of SSRN browsing for search terms wholly unrelated, I stumbled across an article titled "Legal Formalism, Institutional Norms, and the Morality of Basketball”, which pretty much made me want to give Learned Hand a courtside high-five.
The article revolves around the Suns vs. Spurs 2007 playoffs suspensions and is clearly colored by the author’s frustrations as an NBA fan and legal scholar. Though the article is a few years old, I think it’s a great platform to explore the recent Technical Foul rule change and how the new approach appears to be similarly flawed to those of us who are legal realists, and fans of a League of personalities.
Fact: There’s more than a 25% increase in technicals through October 31 over last season, with nearly 2.42 called per game.
Jermaine O’Neal is frustrated he can’t even use his "soft, bedroom voice" to inquire about the reasoning behind a foul. Stephen Jackson got fined $50,000 for a case of lip-reading. It seems to be only a matter of time before the NBA takes this to a whole new level of Philip K. Dick-ishness pre-crime enforcement.
If rules are rules, and refs are just applying them the best they can that might be the end of this analysis; however, that strips away any opportunity to debate concepts of justice in the formulation of such norms. Contextualizing these rules in the narrative of the Game demonstrates failed application. Put simply: the rules are misguided, refs seem confused, and fans are getting screwed.
The justifications for the rules were laid out in the pre-season. Stu Jackson, NBA VP, referenced the ineffectiveness and superfluousness of complaining. Ron Johnson, NBA SVP of Refs, said, “We don't have masks… There's nothing you can hide on the expression of an NBA players… That's not what our fans want. They tell us in many many ways and I think we have to adjust to meet the needs of our league and our fans. It's a business.” Masks, eh? Rip Hamilton’s got functional fashion.
We get it. The NBA is trying to protect a brand and they think that whining is ineffective, that it undercuts referees decisions, that it makes players look like primadonnas, and that it’s bad for business.
But is it really all that bad for business? Incorporating complete economic analysis might undercut the NBA's reputation-preserving marketization justification. The negative externality fans experience in the absence of a star player doesn't always measure up to the perceived overall League benefit, particularly in instances of seemingly unfair application (cf. “We wuz robbed” Knicks, cf. Suns 2007). It’s probably going to be difficult to retain fans if star players are frequently ejected because of a referee’s interpretation of an adverb.
Drawing comparisons between NBA referees and justices of the law might seem like a stretch, but when umpiring and refereeing is brought up in SCOTUS confirmations as a model of jurisprudence, then there’s clearly something to the analogy. Justice Roberts famously said, "Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don't make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ball game to see the umpire." If we take his statement at face value, then perhaps critical legal theory can provide some insight into NBA referees application of the rules.
Simple application of the rules is complicated when the prescribed guidelines are fraught with ambiguity. What's "demonstrative disagreement" to Joe Crawford might just be Tim Duncan giggling to another. "Excessive inquiries" to Dick Bavetta might just be friendly banter to another. Nobody goes to Madison Square Garden to see the refs, but we do all see the game from different angles— and sometimes our perspective is informed by the "richness of our experiences" (in the words of Justice Sotomayor).
If we acknowledge that that the NBA’s rulemaking body is an opaque and insulated system (and, let’s face it, the rulemaking body and enforcing body is an ouroboros with a Jerry West logo on it), then the referee’s adherence to such legal formalism seems fundamentally flawed. Following the 1997 Knicks playoff suspension incident, legal scholars spilled ink to debate and combat the textualist outcome of that decision. William N. Eskridge, Jr. weighed the values inherently involved when interpreting directive text to point out that the rule was unfairly applied to Patrick Ewing. Ronald Dworkin conjured up hypothetical images of Ewing saving a man from being stabbed during the fracas to convey that the rules as written could not possibly have properly considered the full universe of morality in Sport. Clear eyes, full hearts—meet Hart-Fuller.
Context matters, and some players seek to combat the positivist view by preaching natural law philosophy. Lamar Odom recently said, "If you just think about rules and regulations, like, sometimes we can just use our common sense, you know, as people, and you can find out the truth just by using your common sense. You know, what's real and what's not." He then comically describes a thunderous dunk and how instead of showing emotion, players will just calmly walk away with the tag line: 'Where Normal Happens.'
We don’t want normal.
Odom was fouled the other night during a critical play in the final minute of a ball game. He made the basket and shouted "AND ONE", an athlete exulting triumph—a reflexive and linguistic extension of the aggression Odom needed to make the play. He was given a technical foul. Fans watching at home were baffled. Most probably didn't even hear Odom over the action. The course of the game was altered. The television announcers had to play replays and explain what had happened.
David Stern explained some of the reasoning for the rule change earlier this year, “… they should stop complaining and play. Because the more that they play, the more people love this game. That's what's behind it." The solution the NBA went with is a formal rule that’s enforced in a complex manner, a self-defeating practice that is confounding the fan base and re-focusing attention on the arbitrary qualities of NBA officiating instead of the game itself.
Let them play.