By: Jason Kaner*

 

On Saturday evening, the NBA broadcast its third Saturday night nationally televised game in four weeks. Unlike the previous two, this one was not noticeably missing its star power, nor was it marred by fan complaints amid cries about player rest. The first instance of resting players dates back to 2012, when San Antonio Spurs Coach Greg Popovich chose to rest Tim Duncan, Tony Parker, Manu Ginobili & Danny Green against LeBron James and the Miami Heat. Popovich had the players sent home before the game, withholding this information from the league and fans up until shortly before game time. This led to a $250,000 fine from then commissioner David Stern, as well as a lawsuit from 16,000 fans in Florida who paid to attend the game.[i] Popovich’s former player, and current Golden State Warriors Coach Steve Kerr stated then, “If the NBA Punishes the Spurs for sitting players, it opens up a huge can of worms, this is a serious legal challenge for the league.”[ii]

Three weeks ago, Kerr chose to rest his star players Stephen Curry, Klay Thompson, Draymond Green & Andre Iguoudala against Popovich and the Spurs on the Saturday night ABC showcase. The following week the Cleveland Cavaliers chose to rest LeBron James, Kyrie Irving and Kevin Love in an eventual blowout loss to the Los Angeles Clippers, a game that aired on ABC. This prompted ABC commentator Jeff Van Gundy to declare on national television, “If this was any other business this would be a prosecutable offense. This bait and switch maneuver would not be tolerated in any other business.”[iii]

This is not a new trend in basketball, and in many sports teams strategically choose to rest players as the season comes to an end and playoff positions have been clinched. However in the NBA, this has now become a pattern of behavior for stars much further away from the close of the season, and in an apparent strategic fashion to preserve players for the grueling playoff run. It also happens to often conveniently coincide with the selected nationally televised games, for which ABC and Turner pay $2.6 billion a season for the rights to broadcast.[iv] The fan and media outrage compelled Commissioner Adam Silver to send a memo to the league’s Board of Governors warning of “significant penalties” for not following league rules about proper notice when resting players for primetime games; he has further made sure that this was the paramount topic at the owners meetings taking place this weekend.[v]

Commissioner Silver commented:

“Decisions of this kind do not merely implicate issues of player health and team performance on the court. They can also affect fans and business partners, impact our reputation, and damage the perception of our game. With so much at stake, it is simply not acceptable for governors to be uninvolved or to defer decision-making authority on these matters to others in their organizations.” [vi]

Which leads us to the current question: what will happen moving forward? Is it fraud in the inducement of contract by teams who knowingly withhold information about their star players sitting out, allow exorbitant ticket prices to be sold, and then subsequently find protection through ticket warranties after the purchase? The previous 2012 suit against the Spurs was voluntarily dismissed in Florida, after lawyer Larry McGuiness and 16,000 others attempted to sue the Spurs after paying “premium prices.”[vii] The suit alleged that the Spurs violated Florida’s “deceptive and fair trade practices law,” as the team “intentionally and surreptitiously” sent their best players home without knowledge to the league, team, and fans, who suffered economic damages.[viii] However, the suit was dismissed, as no one besides the purchasers can be held responsible for any price above the original value of the ticket- which many people end up paying due to the re-selling of tickets by non-credible sources. Additionally, since tickets are explicitly sold for a game between two teams, rather than one team versus a specific player — unless future tickets are sold as Team X vs. LeBron James, fans will continue to assume the risk that goes along with a game when a player is potentially not available for them to see.

Darren Heitner, of Heitner Sports, conducted an analysis of this back in 2013, addressing the issue of whether or not the fan has a remedy for economic damages suffered when a team decides to rest players. Quoting IF Management’s Steve Herz  , Heitner discussed how a suit could have prevailed had the plaintiff been the home team, as it was more difficult to prove visiting teams knowingly deceived the paying home fans. A potential suit would also have encompassed the NBA for failing to have proper rules in place to prevent such an occurrence, which will make it interesting to see if a change comes out of this weekend’s meetings.[ix] This led to an analysis of “the benefit of the bargain” rule, which is a principle that any party who breaches a contract must pay the affected party an amount that puts that person in the same financial position that would have resulted if the contract had been fully performed. As Heitner points out, the NBA is a star driven league. However, if the benefit of the bargain is not merely to attend the game, but to see certain players perform, than potential litigation could arise. [x]

Many fans plan months in advance to see certain NBA teams because of star players. Moving forward, the league must take into account the negative impact on their sponsors, TV contracts and fans by having star players rest. However, unless a new league policy is implemented, the strategic advantages to the teams resting players will continue to be the deciding factor. As Steve Kerr recently said, “Popovich laid down the groundwork [in 2012] and made it acceptable [to rest stars] and made it smart even.”[xi] This strategy may prove fruitful for teams and players now, however the league remains wary of potential lawsuits if this trend continues in years to come.


*Staff Writer, Villanova University Sports Law Society Blog; J.D. Candidate, May 2019, Villanova University Charles Widger School of Law.

[i] Hunter Felt, Everyone in the NBA controversy over resting players is right – and wrong, The Guardian (March 22, 2017), https://www.theguardian.com/sport/2017/mar/22/nba-resting-players-warriors-cavaliers

[ii][ii] Tim Bontemps, NBA commissioner calls trend of resting stars ‘an extremely significant issue,’ Washington Post (March 21, 2017), https://www.washingtonpost.com/news/sports/wp/2017/03/21/nba-memo-about-resting-players-shows-issue-wont-be-going-away-anytime-soon/?utm_term=.2ae66f434a96

[iii] Cindy Boren, ‘A prosecutable offense’: Cavs ripped for resting LeBron, fellow stars in high-profile game, Washington Post (March 19, 2017), https://www.washingtonpost.com/news/early-lead/wp/2017/03/19/a-prosecutable-offense-cavs-ripped-for-resting-lebron-fellow-stars-in-high-profile-game/?utm_term=.1f826e8ca838

[iv] See Felt, supra note 1.

[v] See Bontemps, supra note 2.

[vi] Id.

[vii] Ben Golliver, Lawyer drops lawsuit against Spurs for resting players against Heat, Sports Illustrated (March 20, 2013), https://www.si.com/nba/point-forward/2013/03/30/san-antonio-spurs-miami-heat-lawsuit-gregg-popovich

[viii] Id.

[ix] Darren Heitner, Dissapointed Fan’s Lawsuit Against San Antonio Spurs Puts “Benefit Of The Bargain” To Task, Forbes (Jan 16, 2013), https://www.forbes.com/sites/darrenheitner/2013/01/16/disappointed-fans-lawsuit-against-san-antonio-spurs-puts-benefit-of-the-bargain-to-task/#439bf1fc36ef

[x] Id.

[xi] See Boren, supra note 3.

 

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