Excerpted From: Sherif Robert Hesni Jr., Basketball on Strike: the All-stars of the Fight for Racial Equality, 24 Vanderbilt Journal of Entertainment and Technology Law 561 (Spring, 2022) (219 Footnotes) (Full Document)


00NoPictureThe year 2020 brought necessary attention to the racial inequality faced every day by Black and African-American people in the United States. Voices echoed across the nation, and local authorities and legislatures were called upon to implement steps towards real change through economic and social reform. In the midst of this, an unexpected group of individuals--National Basketball Association (NBA) players--took the fight for racial equality to unprecedented levels. Basketball superstars used their platforms to disrupt a multibillion-dollar business by protesting injustice and refusing to play in the league's 2020 playoff games.

Labor laws and collective bargaining play a large role in the analysis of NBA players' ability to protest. NBA players are union workers and are therefore provided employment protections through a collective bargaining agreement (CBA) between the National Basketball Players Association (NBPA) union and NBA team governors. Union employee disputes are governed by the National Labor Relations Act (NLRA). While the NLRA protects certain strikes discussed below, protection is limited when a no-strike clause exists in a CBA. The current NBA CBA includes such a clause. Consequently, any strike that is legally protected under the NLRA would have to occur upon the expiration of the CBA after the 2023-2024 season.

The NLRA protects employees who, unconstrained by a no-strike clause, strike in an effort to improve their working conditions. Strikes are typically protected when they are related to employees' workplace concerns. However, despite the NLRA's tendency to solely cover work-related protests, employees have increasingly expressed their opinions on issues beyond the workplace. In 2017, the National Labor Relations Board (NLRB)-- the federal agency tasked with enforcing the NLRA--affirmed its long-established interpretation of “work-related” protests in response to an increased prevalence of political strikes, and it deemed the 2017 Day Without Immigrants protest to be sufficiently related to employee working conditions. On Juneteenth 2020, members of the International Longshore and Warehouse Union protested the mistreatment of Black and African-American people in the United States. The following month, thousands of essential workers across the United States participated in the Strike for Black Lives to promote equality. Employment law attorneys offered guidelines to employers and generally recommended that employers not discipline employees for participating in the Strike for Black Lives.

On August 26, 2020, NBA players decided to take a stand of their own. Two Milwaukee Bucks players refused to play their next playoff game in response to the police shooting of Jacob Blake, an unarmed Black man, in Kenosha, Wisconsin. Their teammates followed suit and remained in their locker room through tip-off. When word spread to the rest of the league, every NBA player participating in the playoffs decided to protest alongside the Bucks, forcing all games to be postponed indefinitely.

NBA players have a long history of confronting racial inequality, but the 2020 strike is the most eye-catching measure to date. It showed that, in the wake of the NLRB's extended strike protections and society's increased awareness of racial injustice, professional athletes like NBA players can stimulate change throughout the nation.

This Note addresses the connection between the NLRB's strike protections and NBA players' ability to protest upon the expiration of their current CBA. Part I discusses the history of political and social activism in professional sports. It then discusses the typical structure of NBA employment agreements, along with the legal background of the NLRA and union employee strikes. Part II analyzes the different approaches the NLRB or the NBA could take in response to players' political protests. Part III then proposes that NBA team governors and players proactively resolve the uncertainty surrounding a potential strike through collective bargaining negotiations.

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Athlete activism has a long history in the United States. Although previous instances of athlete activism were met with hostility and ostracization, the 2020 NBA protest reflected a different social climate. The players were unified, society was more aware of racial inequality, and the NLRB has indicated a broad view on the protection of concerted activity under section 7 of the NLRA.

The NLRB's current public standpoint and the current social climate in the United States make it possible that an NBA player strike against racial injustice would be deemed protected concerted activity upon the expiration of the current CBA. However, rather than striking and pursuing a labor law claim against team governors for any retaliation, players, team governors, and the league should choose to collaborate. Players should negotiate with team governors to add racial equality provisions to the upcoming CBA. These provisions should encourage team governors to take active steps to fight against racial inequality in their respective communities. Racial justice reform experts can assist in this process and measure the employers' efforts.

The league and team governors have shown a willingness to cooperate with players in the fight for racial equality on multiple occasions. The parties should continue these collaborative efforts for years to come. This proposed collaboration would not only make lives easier for NBA players but could also lead to impactful social change.

J.D./M.S.F. Candidate in Law & Finance, Vanderbilt University Law School, 2022; B.A., New York University, 2016.