The Nets have suspended Kyrie Irving for at least five games, calling the point guard “currently unfit to be associated with the Brooklyn Nets” after he repeatedly failed to “unequivocally say he has no antisemitic beliefs.”
The move comes a week after Irving posted on his Twitter feed a link to the 2018 documentary, Hebrews to Negroes: Wake Up Black America, which has been roundly criticized as antisemitic.
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“We were dismayed today, when given an opportunity in a media session, that Kyrie refused to unequivocally say he has no antisemitic beliefs, nor acknowledge specific hateful material in the film. This was not the first time he had the opportunity—but failed—to clarify,” the Nets said in a statement.
“Such failure to disavow antisemitism when given a clear opportunity to do so is deeply disturbing, is against the values of our organization, and constitutes conduct detrimental to the team. Accordingly, we are of the view that he is currently unfit to be associated with the Brooklyn Nets.”
Generally speaking, employers can punish employees for their speech and characterize speech as conduct detrimental. While the First Amendment protects employees from punishment by the government, it doesn’t insulate them from their employers taking action—particularly employers in the private sector, such as NBA teams.
The NBA and NBPA have also negotiated a uniform player contract that broadly defines conduct detrimental. In the UPC, a player is contractually obligated to both “conduct himself on and off the court according to the highest standards of honesty, citizenship, and sportsmanship” and “not to do anything that is materially detrimental or materially prejudicial to the best interests of the Team or the League.”
A player whose statements can reasonably be construed as espousing antisemitic views would be conducting himself in a way that is “materially detrimental or materially prejudicial to the best interests of the Team or the League” and arguably betrays basic elements of “citizenship and sportsmanship.”
But Irving might contend that there is a lack of precedent of NBA players being suspended by their teams for speech or ideology. The NBA recently fined—but did not suspend—Minnesota Timberwolves guard Anthony Edwards for homophobic comments on social media. Over the years, a number of NBA players have been suspended for violent acts, drug violations, law breaking and other forms of misconduct. Irving, however, can insist that the basis of his suspension is otherwise lawful speech.
Irving, through the NBPA, can file a grievance challenging the Nets’ imposition of discipline for violation of a team rule. A grievance would be heard by a neutral grievance arbitrator. Irving would likely argue that while the team says he is being punished for “conduct detrimental,” he is being punished instead for speech. He could insist there is no precedent for a player being punished by their team for statements, or omitted statements, about subject matter and that the Nets failed to give him notice that his speech could trigger a suspension.
Irving could also object to the terms in which the Nets say he would be eligible to return. The team says he will sit out at least five games and potentially longer, unless he “satisfies a series of objective remedial measures that address the harmful impact of his conduct.” Unless the Nets have specified these “objective remedial measures,” it’s not clear what he must do. If these measures are not “objective” but are instead “subjective,” Irving might contend the Nets have erred in their delivery of the suspension.
The NBPA might not wish to defend Irving given his offensive viewpoints, but to the extent the NBPA is worried about precedent being set with teams suspending players for speech, it might be more inclined to act on his behalf.
The Nets, meanwhile, can argue conduct detrimental is defined broadly in the CBA and uniform player contract and there is no prohibition from speech counting as conduct detrimental.
The unpaid suspension will cost Irving $2.2 million of his $36.5 million salary this season, and a further $445,000 per game if the Nets extend the ban. He ranked 12th in Sportico’s preseason look at the NBA’s highest-paid players, including endorsements, with $47.5 million.
In June, Irving exercised his player option for the 2022-23 season, which is the final year of his four-year, $136.5 million Nets contract. The two parties could not reach an agreement on an extension this summer following a tumultuous 2021-22 season in Brooklyn. The Nets kept an unvaccinated Irving off the court due to New York City’s COVID-19 mandate for all workers. They eventually had him suit up for road games starting in January. Two months later, New York Mayor Eric Adams dropped the mandate for professional athletes and entertainers, but the 35 missed home games still cost Irving $13.3 million.
Irving has one of the NBA’s biggest sneaker deals from Nike, worth roughly $11 million annually, including royalties. His shoe is extremely popular with consumers, as well as players. Fifty NBA players wore his signature sneakers last season, second behind only Kobe Bryant, according to the Baller Shoes database.
But even with robust sales of the sneakers, Nike was not expected to extend its agreement when it expired at the end of this season, according to ESPN’s Ramona Shelburne. Irving lashed out at Nike in June, saying on social media that he had “nothing to do with the design or marketing of the upcoming #Kyrie8.” He called them “trash” and said Nike was releasing them without his OK.
Other brands, such as Pepsi, which created his Uncle Drew character that was the focus of a feature film, long ago cut ties with the seven-time All-Star.