Jontay Porter’s NBA Ban for Gambling Carries Legal Implications

The NBA Wednesday announced that Toronto Raptors Jontay Porter is permanently disqualified for allegedly betting on NBA games, disclosing confidential information to sports bettors and taking himself out of a game to influence bets on his own performance.

The ban poses far-reaching legal ramifications for Porter, the NBA, the NBPA and the lawfulness of proposition wagers on how players perform.

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The allegations against Porter are extensive. They include Porter betting against the Raptors and sharing confidential information about his health with a known gambler. NBA commissioner Adam Silver said the “most severe punishment” possible, a ban, is warranted given Porter’s “blatant violations of our gaming rules.” Silver stressed that protecting the integrity of the game is paramount.

In a statement, the NBPA said the union will “make sure Jontay has access to the resources he needs during this time.” The NBPA also underscored that “all players, including Jontay, should be afforded appropriate due process and opportunity to answer to any charges brought against them.”

Porter (and the NBPA) could contest the ban. Even if Porter is guilty of the underlying allegations, the NBPA could argue a lifetime ban is excessive. The union might also say it sets a worrisome precedent that could be used against future players in analogous situations.

Porter might argue the NBA has its facts wrong. The league’s still-ongoing investigation, which has lasted for weeks, found he disclosed confidential information to at least two people who he knew bet on NBA games. Porter might insist those individuals are unreliable and untrustworthy. He could say they are accusing him to protect themselves as a means of mitigating their own legal troubles. Accused individuals pointing the finger at Porter, a high-profile target, would signal they are cooperating and perhaps trying to direct law enforcement’s attention toward Porter and away from them.

To that point, the NBA’s statement noticeably mentions the league “has shared and will continue to share information with federal prosecutors” about Porter’s actions. That statement suggests Porter’s bets—and his alleged fixing of outcomes in games to impact bets—are of interest to the Justice Department. The DOJ could be investigating potential fraudulent and conspiratorial acts that involve multiple people; given that Porter played for the Raptors, Canadian authorities might be taking their own look.

As another defense, Porter could push back against the NBA’s finding that he took himself out of a game on March 20 to influence the outcome of bets. The NBA says Porter claimed he was ill; if Porter saw a team doctor or took medicine to address an illness, he could assert he was, in fact, sick.

But the hurdles for Porter in mounting a successful challenge would be daunting.

First, the NBA’s multi-week investigation likely afforded Porter multiple opportunities to raise defenses and exonerating facts—it’s not as if the NBA’s findings came out of the blue. Whatever he said and shared clearly didn’t convince the league.

In addition, the NBA relied on findings by experts, including licensed sports betting operators and an entity described as a monitoring organization. On Tuesday it was reported Colorado gaming regulators asked FanDuel and other sportsbooks to provide information on Porter’s accounts. These authoritative sources strengthen the NBA’s position.

Even if the NBA relied on evidence shared by bettors whose credibility could be doubted, evidence might include texts, emails and direct messages that contain admissions or other damning information.

Overall, Silver’s decision appears largely insulated from a challenge under relevant NBA policies.

On one hand, Article XXXI of the collective bargaining agreement contemplates challenging a player suspension that lasts at least 13 games and concerns “the integrity of, or the maintenance of public confidence in, the game of basketball.” This type of challenge is heard by a neutral grievance arbitrator, who applies an arbitrary and capricious standard of review (i.e., a standard very deferential to the commissioner). Porter’s punishment for alleged betting on games, disclosure of confidential information and taking himself out of game for betting purposes all go to the integrity of the game.

On the other hand, Article 35(f) of the league’s constitution states the commissioner’s decision-making on a player who wagers is “final, binding, and conclusive and unappealable.”

Further, the commissioner enjoys “absolute and sole discretion” on determining a penalty. This language unequivocally places discretion in the hands of Silver, making it hard to formulate a viable challenge.

If Porter pursues a lawsuit against the league, any legal claim would face a labor preemption defense, meaning the NBA would argue Porter’s rights are governed by his contract, the CBA and accompanying dispute resolution processes and cannot be litigated in court. Porter potentially arguing he is addicted to gambling in a medical or disability sense would likely fail, too. The Americans with Disabilities Act explicitly excludes “compulsive gambling” as a covered disability.

There is also an inherent danger for Porter in pursuing legal remedies that could trigger the production of additional evidence or testimony. The NBA’s sharing of evidence with prosecutors underscores the seriousness of the matter, which could have criminal law ramifications. Arguably a better strategy for Porter, who is only 24, would be to convince Silver (at some point in the future) that he can be trusted and has changed as a person. The league’s ban can be reversed at the league’s discretion.

The apparent thoroughness of the NBA’s investigation, New Hampshire Lottery Commission executive director Charlie McIntyre told Sportico, highlights the NBA’s capacity and willingness to safeguard integrity.

A former prosecutor in Boston who took on organized crime, McIntyre also noted the NBA’s sharing of evidence with federal prosecutors. “That indicates to me,” he said, “we could be at the tip of the iceberg of a larger controversy.”

The Porter situation provides a moment of inflection for pro leagues as they simultaneously embrace sports betting to generate revenue and police betting activities that undermine their games’ integrity. These are the same leagues that unsuccessfully fought at the U.S. Supreme Court to uphold the Professional and Amateur Sports Betting Act of 1992, which compelled states to deny sports betting.

Yaron Covo, a senior research fellow at Yale Law School, has written about leagues’ attempts to prohibit athletes from tipping, meaning the disclosure of inside information that gamblers use to increase odds of winning. Covo detailed how leagues tend to rely on “ambiguous standards” to counter tipping, such as failing to clarify public from nonpublic information. The need for Improved standards seems especially sensible in light of Porter.

Silver’s statement acknowledged that while sports betting is now legal in 38 states, greater regulation may be needed. He said the Porter situation “raises important issues about the sufficiency of the regulatory framework currently in place, including the types of bets offered on our games and players.”

Perhaps Silver and other pro leagues’ commissioners will join NCAA president Charlie Baker in lobbying states to ban proposition betting.

Kurt Badenhausen contributed to this story.

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