As NBA Fines Irving, the Long Lens of COVID-19 Enforcement Comes into Focus

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Michael McCann
·4 min read
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First was James Harden. Now, it’s Harden’s new Brooklyn Nets teammate, Kyrie Irving in hot water with the NBA. Both found trouble after bystanders “caught” them on camera violating league health and safety protocols.

The NBA announced on Friday that Irving has been fined $50,000 for breaking a rule that bans “attending indoor gatherings of 15 or more people or entering bars, lounges, clubs or similar establishments.” The league said Irving attended a “private indoor party”—believed to be a birthday party—last weekend. In a video, Irving appears maskless while standing next to a person who blows out candles on a birthday cake. Several other persons near Irving do not appear to be wearing masks.

In addition to the fine, Irving is subject to forfeiture of salary for two games missed during a five-day quarantine period. Former Nets assistant GM and current ESPN analyst Bobby Marks calculated the lost salary to be $816,898.

Irving is expected to return to action this Saturday for the Nets matchup with the Orlando Magic. His return is contingent upon him continuing to test negative for COVID-19. Irving has missed the last five games for personal reasons.

Harden, whom the Nets acquired from the Houston Rockets in a four-team trade on Wednesday, was fined $50,000 last month. A video of him maskless at a club surfaced online. Harden was also said to be attending a “private indoor party.” Such attendance isn’t illegal in a criminal or civil sense but was nonetheless a violation of Harden’s employment obligations, which were negotiated by the league and the National Basketball Players’ Association.

One interesting feature of both players’ situations: The league had nothing to do with the pivotal evidence—the videos—or online publication of the evidence. Both videos appear to be recordings from bystanders’ iPhone or smartphone cameras. Both were uploaded and published on different online platforms unaffiliated with the NBA. And, unfortunately for Harden and Irving, both appear to represent conclusive evidence of guilt. The league can corroborate video evidence through interviews and other investigative techniques.

In a world where Pew Research estimates that 96% of Americans own a cell phone and four out of five Americans uses a smartphone, NBA players and other celebrities face a continuous risk of being recorded. The ease of uploading and sharing videos online presents an accompanying risk of public disclosure.

This is a particularly relevant point as the NBA and NBPA attempt to preserve a 2020-21 season that has already seen nine games postponed due to a league rule requiring teams have at least eight players available to suit up. The number of NBA players testing positive for COVID-19 has climbed—according to a league statement on Wednesday, 16 new players out of 497 tested returned positive tests. More players have become unavailable to play not only on account of positive tests but also due to contact tracing, which reveals possible exposure to others who tested positive.

On Tuesday, the league and union announced expanded health and safety protocols, including a new ban on non-team guests in hotel rooms.

At least one NBA player has publicly objected to the protocol revisions on grounds they constitute invasions of privacy and seem Orwellian and paternalistic. “I’m a grown man,” Oklahoma City Thunder guard George Hill complained. “I’m gonna do what I want to do. If I want to go see my family, I’m going to go see my family . . . they can’t tell me I have to stay in a room 24/7.”

The legal problem for players in raising objections is their union, the NBPA, agreed to the revisions. Under labor law, union members are generally obligated to follow rules impacting wages, hours and other working conditions when those rules were negotiated by management and the union. Hill and other players could always “opt out” by not playing, but they’d face suspensions and loss of income by doing so.

As players navigate through more restrictive and scrutinizing protocols, the league won’t necessarily be watching them. But bystanders will and, chances are, they’ll be armed with phones. That factor might prove just as deterring.

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