The shocking results of the NBA’s external investigation of Phoenix Suns owner Robert Sarver, and his actions and the workplace culture of his franchise were revealed last week, and Sarver was suspended for a year and fined $10 million dollars by NBA Commissioner Adam Silver, with Silver stating it was the maximum penalty allowed under the league’s constitution.
Culture in Sports’ founder Dr. Jeremy Piasecki, rightly took up the issue of the toxic climate around the team, its front office, and its employees in an article published on September 15, 2022, under the title “Another Toxic Culture Uncovered.” https://cultureinsports.com/another-toxic-culture-uncovered/
6,200 Days of Demeaning Conduct
Dr. Piasecki, whose doctoral dissertation is on toxic work environments, did a superb job describing the human toll of 17 years of hostility directed to African Americans and women in the Suns workplace might have calculating the 6200 days of documented belittling, demeaning, and insensitive behavior, coming from not just Sarver but also other members of his leadership team. The results are all spelled out in the 36-pages of the investigative report issued by the prestigious law firm, Wachtell, Lipton, Rosen & Katz. As someone who has been part numerous investigations in the sports setting both internally and as an outside counsel, the report is compelling reading and one of the more clearly written, that I have seen. It is available here: chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://www.wlrk.com/wp-content/uploads/2022/09/Phoenix-Suns-Report.pdf
Imagine, if you will, the impact on the lives and families of the employees who endured this treatment. Getting a job in sports is not an easy thing. Getting a job with a major league professional sports franchise is even harder. There are comparatively few of them. The competition is fierce and getting one often represents the culmination of years of education and hard work. This is one of the reasons why negative, discriminatory, and objectively hostile work environments in sports are often so hard to discover and even harder to repair. Except it seems we keep discovering more and more of them and the investigative report does a good job of laying out in some simple steps how to avoid them in the first place. It seems inexplicable that any organization would not have already implemented these safeguards. But pro sports organizations are often put at the greatest risk by the boorish behavior of the billionaire owners who lead them because they feel immune from consequence.
A Point of No Return?
As an experienced observer of the legal aspects of league governance and commissioners’ powers, it will be extremely difficult for Sarver to comeback from this suspension. It is hard to imagine a scenario by which he could pull off that turnabout, when he appeared so blind to his own behavior. And indeed, before this article when to press, Sarver has announced he is taking steps to sell his majority ownership in the team.
There has also been a steady drumbeat of complaints from the National Basketball Players Association (NBPA), the media, even sponsors and minority owners, and Sarver should expect Congress to get involved before too long. The House of Representatives already has plans to bring Washington’s NFL owner Daniel Snyder before the House Oversight and Reform Committee this Fall for long-running similar allegations and investigative findings. Adding Sarver to that agenda seems easy.
Commissioner Adam Silver had already set a stronger precedent for dealing with a miscreant owner, by removing former Los Angeles Clippers owner, who was a blight on the league for decades, back in 2014. In doing so, Silver was extraordinarily bold and perhaps stepped beyond his actual authority under the league’s constitution. But in the Sterling situation, Silver had numerous advantages to support his boldness, including Sterling’s long history of being a hated owner by his fellow owners; a buyer on tap for a chance to own an NBA team in the coveted Los Angeles market; the Clippers were about to have the chance to negotiate for increased local media rights. True serial bad actor Sterling got a billion plus dollar windfall, but the NBA got a fresh start with a far better owner and Silver looked brilliant in the doing.
But it takes a super-majority of owners to vote out an owner in the NBA, so expect that Silver now was operating without the votes in this scenario to remove Sarver, or at least did not have his cadre of owners securely in his corner. That may not always be the case, and if the Las Vegas and Seattle expansion sweepstakes that is still in the “soft open phase,” yields one or more qualified buying groups who can’t quite prevail but would still be interested in buying a highly competitive franchise in a growing market, Sarver could be leveraged out completely, or back to minority status, which seems wildly like poetic justice.
Reforming the Governing Structure of the NBA
But all this points toward both constitutional and governance reforms to both prevent this kind of behavior and to deal with events like this more effectively in the future. Adam Silver has been the most forward thinking of all recent pro sports commissioners. He must be reading the signs and know that Congress may impose a more severe governance solution on his owners if he can’t do it on his own. Moreover, the NBA is a governor-administered sport, where a designated governor operates each franchise inside the league structure. The governor need not be the largest equity owner, as is the case in the more ownership centric sports like the NFL. It is comparatively easier in the NBA to keep an owner from using his team as the ultimate boy’s toy. It is harder however to remove an owner from ownership without buying them out.
It is time for the NBA to lead all other sports in expanding its number of governors and revising its constitution to include neutral governors, unaffiliated with owner, and to mandate that a fixed number of these governors be diverse. It is the appropriate modern check on bad actors who have control of NBA franchises. Fortune 500 companies do not operate without some of these checks and documented behavior like Sarver’s would sweep out leadership in almost any major company if it happened in the publicly traded and governed world. Sarver’s unrepented and sophomoric behavior just wouldn’t happen if individuals, in this case neutral governors, with a direct line to the Commissioner’s office were inside the franchise daily and not beholden to the owner. Silver should move on this, as should the other major professional sports leagues before Congress forces these changes on pro sports. Silver may yet find the ability to leverage Sarver out and quiet the calls for reform and the threat of Congress imposing reforms for now. But it won’t end the risk that behavior similar to Sarver’s or the threat bad owners pose to the overall league in every sport.
Another Look at the Sarver Investigation & Sanction
Written by Robert Boland in Articles on