Could Warriors Strip Mark Stevens of His Minority Stake After Kyle Lowry Shove?
The NBA and the Golden State Warriors announced on Thursday that minority owner Mark Stevens is banned from attending any NBA games and Warriors activities over the next year and that he must pay a $500,000 fine. The fine and ban, which is effective until the conclusion of the 2019-20 NBA playoffs, comes in the wake of Stevens shoving Toronto Raptors guard Kyle Lowry during Game 3 at Oracle Arena and also directing “obscene language” toward Lowry. As explained below, it’s possible that the 60-year-old billionaire could face yet additional repercussions.
Stevens obligations under Article 13(a) of the NBA Constitution and the NBA Fan Code of Conduct
When a player is linked to misconduct, the collective bargaining agreement is the relevant document. It generally governs the legal relationship between players, teams and the league. Stevens is subject to a different set of rules: those found in the NBA constitution. The constitution mainly concerns the legal relationship between owners, teams and the league itself. It is a key document in assessing potential repercussions for Stevens, who is reportedly worth in excess of $2 billion and works as a venture capitalist at Sequoia Capital.
Article 13 of the constitution is particularly relevant. It forbids owners from willfully violating the league constitution, bylaws or any other NBA agreements and by inference the operation of games. By intentionally shoving Lowry, the NBA could conclude that Stevens intentionally breached the NBA’s Code of Conduct. Oracle Arena has adopted the Code. Among other things, the Code requires that spectators not engage in acts of violence and refrain from any behavior that could be perceived as disruptive.
Keep in mind, there is no “right” to attend an NBA game. Game tickets are merely revocable licenses offered by a team. A person in receipt of a ticket is contractually required to follow the Code or the team can revoke the license. Likewise, a team can choose to not offer a license (game ticket) to a particular individual because of that person’s previous indiscretions.
To that end, misbehaving people have been denied the chance to purchase additional tickets to attend NBA fans. A few months ago, the Utah Jazz permanently banned ticketholder Shane Keisel from games at Vivint Smart Arena in the wake of Keisel heckling Russell Westbrook. Two years ago, the New York Knicks imposed a lifetime ban on retired forward Charles Oakley from Madison Square Garden. This occurred after Oakley had scuffled with arena security in the course of criticizing Knicks owner James Dolan. Oakley was also arrested for the incident. The ban was later lifted, though the rift between Oakley and Dolan continues. There are plenty of other examples.
If a random fan and a former player could be permanently banned for heckling and scuffling, there is logical argument that an owner who shoves a player should get at least the same sanction. Owners should set an example, not act more recklessly than the other people seated around them. The fact that Stevens is banned from attending any NBA games, albeit for a year rather than a longer term, is consistent with the idea the sanction ought to be meaningful.
The NBA also has a complicated history with fans who make contact with players. In 2004, Detroit Pistons ticketholder John Greene received a lifetime ban from Pistons home games. The ban occurred in the wake of Green throwing a cup of diet soda at Indiana Pacers forward Ron Artest while Artest lay on the scorer’s table. The “Malice at the Palace” then ensued. The NBA thereafter became much more vigilant about security at games and diminishing opportunities for unruly fans to injure or provoke players.
Stevens and Owners’ obligations under Article 13(d) of the NBA Constitution
Alternatively, the NBA could rely on Article 13(d) to sanction Stevens further. Article 13(d) prohibits owners from violating contractual obligations in ways that pose adverse consequences onto the NBA. The league could reason that an owner who shoves a player not only embarrasses himself and his team, but also damages the bargaining relationship between the NBA and the National Basketball Players’ Association.
Under Silver’s leadership, the NBA has enjoyed a positive relationship with the NBPA and its executive director, Michele Roberts. Silver earned the trust of players with his adept handling—and subsequent ouster—of Los Angeles Clippers owner Donald Sterling in the aftermath of Sterling’s racist comments.
Further, NBA players appear to respect Silver’s position on standing for the national anthem, a divisive topic that has caused great controversy for NFL commissioner Roger Goodell. Indeed, Goodell’s relationship with NFL players and the National Football League Players’ Association is far inferior to the one enjoyed by Silver and his counterparts at the NBPA. Silver wants to make sure that he continues to be well-received by players.
Unlike a finding that an owner violated 13(a), a finding that an owner violated 13(d) would not require evidence of intent. It is more of a strict liability offense: if an owner’s behavior damaged the NBA’s business, then the owner broke the rule, regardless of intent. As a practical matter, it would probably be easier for the NBA to conclude that Stevens violated 13(d) than 13(a). His conduct has possibly harmed the league’s relationship with the NBPA.
Other relevant provisions of the league constitution
The constitution makes clear that Silver enjoys substantial discretion to punish Stevens and the Warriors over the incident.
Under Article 24, Silver is empowered to take any action that he deems necessary for “the best interests of the Association.” Such actions could include a fine, suspension or other measures, such as striping a team of a draft pick.
Further, if an owner attempts to contest a league punishment by suing the league or Silver, a judge would likely toss that lawsuit out of court. Owners contractually agree to adhere to the league constitution, and under Article 24, Silver’s actions are “final, binding, conclusive and unappealable.” If owners do not like that arrangement, they should not buy an NBA franchise.
In addition, Silver could invoke Article 35A, which concerns the behavior of non-players, including those with equity interests in an NBA franchise. If Silver finds that such a person is “guilty of conduct prejudicial or detrimental to the Association,” he can indefinitely suspend him or her or fine that person up to $1 million.
The NBA or Warriors could oust Stevens from the league
I don’t expect the NBA to attempt to terminate Stevens’s ownership in the Warriors—which would rescind his ownership interest in an NBA franchise—but there is a process by which that could occur.
The procedure is outlined under Article 14 of the constitution. The procedure would involve a hearing presided over by the chairman of the Board of Governors, which consists of owners with controlling interests in NBA teams. The chairman is Larry Tanenbaum, who owns part of the Toronto Raptors. The hearing would be similar to an arbitration, which itself is similar to a trial but much less formal and without a judge or a jury.
Here, league attorneys would present a case against Stevens for violating the NBA constitution. He would then have an opportunity to present his defense. Tanenbaum would facilitate the hearing. The de facto jury would be NBA owners, three-quarters of whom would need to vote to oust Stevens.
Needless to say, but if Stevens intended to purchase a controlling interest in an NBA franchise, that aspiration has taken a major hit. The league would be wary of approving such a sale.
It is also possible that the Warriors could remove Stevens and avoid having one its owners the subject of an NBA disciplinary hearing. According to Dylan Byers of NBC News, “multiple sources close to the Golden State Warriors” tell him that Stevens will “likely be forced to sell his shares before the start of next season.” It is possible that contracts to purchase equity in the Warriors contain language that empower the team to require an investor to sell if the investor engages in conduct that breaches a “morals clause.” Such a clause would contemplate conduct that brings disrepute on the owner or the organization.
Lowry could press criminal charges and sue Stevens, but realistically won’t
As to Lowry, he could do two things that he almost certainly won’t do: file a police report in hopes that the Oakland Police Department then charge Stevens with a crime and sue Stevens for battery and intentional infliction of emotional distress.
There is a plausible argument that Stevens committed the crime of simple battery on Lowry. Under California law, simple battery is a misdemeanor and refers to the willful and unlawful use of force on another person. Unlike other types of battery, simple battery doesn’t necessitate proof that the victim suffered a significant injury—merely offensive contact can be sufficient. A person without a criminal record would likely not receive jail time for a simple battery conviction or related plea, but the law authorizes a jail sentence of up to six months.
Lowry could also sue Stevens for battery and intentional infliction of emotional distress. Battery in a civil lawsuit context concerns intentionally causing harmful or offensive contact on another person. Battery wouldn’t require a finding that Stevens intended to injure Lowry, only that he intended to shove him. As for a theoretical claim for intentional infliction of emotional distress, it would refer to Stevens acting in such an extreme and outrageous manner—an owner shoving a player is pretty extreme and outrageous—so as to inflict severe mental distress on Lowry.
There won’t be criminal charges and there won’t be a lawsuit. For one, Lowry, who earns $29 million a year playing for the Raptors, wasn’t injured. It would be difficult for him to show that he was damaged in a way that the law ought to remedy. For another, it seems unlikely Lowry would want to expend his very limited free time and energy engaged in a legal process over an incident that didn’t injure him. The Lowry-Stevens incident might make for a good law school exam question, but in the real world, there won’t be a legal fallout between them. If it winds up in court, the “courtroom” will likely be the Manhattan office of Silver or the Oakland office of Warriors majority owner Joe Lacob.
Michael McCann is SI’s Legal Analyst. He is also an attorney and Associate Dean of UNH Franklin Pierce School of Law.