I filed an unfair labor practice charge against the National Basketball Association (NBA) and the New York Knicks, as joint employers, yesterday in the New York City region of the National Labor Relations Board (NLRB). The charge takes issue with a provision of the NBA’s bylaws that empowers the NBA commissioner to suspend and fine players for statements that they make.

Specifically, the rule in question states that:

The Commissioner shall have the power to suspend for a definite or indefinite period, or to impose a fine not exceeding $50,000, or inflict both such suspension and fine upon any Player who, in his opinion, (i) shall have made or caused to be made any statement having, or that was designed to have, an effect prejudicial or detrimental to the best interests of basketball or of the Association or of a Member [Team]. . . .

Under Section 7 of the National Labor Relations Act (NLRA), workers have a right to make statements critical of their employer for the purposes of mutual aid and protection. This includes the right to criticize safety, pay, hours, and other working conditions (such as bad refereeing).

An NBA player would reasonably read this rule as prohibiting them from engaging in this kind of protected activity because critical statements about the NBA or a team could have “an effect prejudicial or detrimental to the best interests of” the NBA or that team. This is especially true because the rule states that whether a statement is prejudicial or detrimental will be determined solely by the opinion of the NBA commissioner, the league’s top boss. Thus, under Stericycle, this work rule violates Section 8(a)(1) of the NLRA.

NBA players are unionized under the National Basketball Players Association, and there is a collective bargaining agreement (CBA) in place between the players and the league. Unions can waive certain Section 7 rights in CBAs, but not these specific rights. As indicated in Universal Fuels, “employees should be free . . . to voice their views concerning what the contract grants them as to pay and benefits, whether or not their union and their employer take a different view.” A player would reasonably construe this work rule as prohibiting them from voicing such views because the NBA commissioner could easily conclude that the expression of such views is “prejudicial or detrimental to the best interests” of the NBA or a team.

I filed the charge against the NBA and the New York Knicks because the bylaws also make each NBA team include language in their contracts with players that require them to abide by the bylaws. So the contract of every NBA player essentially reincorporates this violation. The Knicks play in NYC where the NBA is located, so it is the most convenient team to include on the charge as a joint employer.