NBA CBA’s New Evidence-Sharing Clause Could Impact Appeals
The sharing of evidence is considered a crucial element of fairness in the U.S. legal system. Now, it’s formally enshrined in the NBA’s disciplinary system.
The league’s most recent collective bargaining agreement, released on Wednesday, contains a new provision under the CBA’s Article VI, Player Conduct. Under Section 13, once the NBA imposes discipline on a player for off-court conduct, and upon request by the NBPA, the league must identify “key evidence or other materials upon which the disciplinary decision was based.” The provision does not in any way limit the NBA’s investigative power or the types of evidence from which it can find wrongdoing.
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Although the league already follows this type of practice, the formalization of it is consistent with promoting transparency. It also resembles what in law is called “discovery,” where opposing parties in a legal dispute are obligated to inform the other side about evidence and testimony and in some cases share what it has.
In a prosecution, for example, the prosecutor must provide the criminal defendant with applicable documents that will be presented to jurors as incriminating evidence. While we sometimes hear about “smoking guns” in cases, there are important rules that make sure defendants aren’t unfairly surprised. And when a prosecutor fails to follow those rules, a judge can dismiss the case.
The addition of the off-court conduct provision might also offer the player and the NBPA a better chance to appeal a suspension. An appeal to a grievance arbitrator can be made if a player is suspended at least 13 games; an appeal with access to more information might be in a better position to rebut or at least downplay allegations of wrongdoing.
Player conduct procedures have rarely been controversial in the NBA, which is run by commissioner Adam Silver and other seasoned attorneys and places an emphasis on fair procedure and basic elements of justice. Consider the NBA’s recent suspension of Ja Morant for 25 games for wielding a firearm on social media. Silver identified why Morant was suspended and why Morant’s actions were problematic given that young NBA fans and others could emulate him.
But evidence of wrongdoing has proven controversial in another league. One of Tom Brady’s frustrations in the Deflategate saga was the NFL denying him access to its evidence, including its scientific findings and interview notes. Without that access, it was more difficult for Brady, as well as the attorneys and experts who aided him, to rebut the NFL’s factual conclusions.
