Silencing the Supremely Talented: How NBA Policy Restricts Player Expression
On September 29, professional basketball player J.R. Smith—of the Cleveland Cavaliers—announced via Instagram that the NBA informed him that he would be fined on a per-game basis for displaying his new tattoo of the logo for the American sneaker and sportswear company, Supreme, on his right leg during games.1 In his post, Smith appears to claim that the NBA forcing him to cover the tattoo is an invasion of privacy. While Smith is not directly employed by the NBA, he is employed by a league franchise and is a member of the NBA Players Association, which has entered into a collective bargaining agreement with the NBA that governs players’ conduct within the league.2
Private at-will employees generally do not enjoy the right to unrestricted free speech and expression while at work.3 The First Amendment applies only to government restricted free speech and expression.4 Employers are free to restrict an employee’s speech while he or she is work through employment contracts.5 While there are some limitations on off-duty conduct that employers can restrict, courts have favored employers on the issue of displaying tattoos in the workplace.6 In Roberts, the Sixth Circuit held that because dress code limitations are permissible, an individual’s decision to display a tattoo at work is not a clearly established right.7 Unfortunately for Smith, Section 2(b) of Article XXXVII of the NBA-NBAPA Collective Bargaining Agreement states a rather unambiguous policy on player appearance during games:
(b) Other than as may be incorporated into his Uniform and the manufacturer’s identification incorporated into his Sneakers, a player may not, during any NBA game, display any commercial, promotional, or charitable name, mark, logo or other identification, including but not limited to on his body, in his hair, or otherwise.8
The attempt to restrict Smith from displaying the tattoo likely arises from the NBA’s concern with protecting its own brand and its obligations to sponsors. In 2015, the NBA agreed to an 8-year, $1 billion deal with Nike to become the NBA’s exclusive uniform and apparel supplier.9 Allowing players to advertise for other clothing companies while on the court could open the NBA up to claims for breach of contract. It could also deter future business partners from entering advertising contracts with the NBA. This consideration likely carries more weight in light of the league’s decision in 2017 to allow its franchises to sell limited ad space on their jerseys.10 Players’ tattoos displaying logos representing competing brands could jeopardize these advertising agreements.
Smith is not the first player to be disciplined by the NBA for displaying marks or logos on his body. In 2013, the league forced former New York Knicks player, Iman Shumpert, to remove the logo of his personal athletic sponsor, Adidas, that he had shaved into the back of his head.11 This year, Los Angeles Lakers player, Lonzo Ball, was forced to cover up a tattoo on his right arm of the logo for his own shoe company, Big Baller Brand.12 However, the NBA has received criticism for its uneven enforcement of the uniform provision. Los Angeles Clippers player, Marcin Gortat has never been reprimanded for displaying the Jordan “Jumpman” logo on his right leg—however, his personal sneaker sponsor, Reebok, asked him to cover the tattoo during games.13 Boston Celtics player, Kyrie Irving has also never been disciplined for displaying his tattoo of the logo for the hit television show Friends on his forearm.14 The discrepancies in policy enforcement are most likely a result of league officials applying a case-by-case approach, enforcing the rule only where the logo represents direct competition with league sponsors. Supreme, Adidas, and Big Baller Brand represent this competition, whereas Jordan—an entity owned by Nike—and Friends do not.
For the time being, it seems that Smith is out of luck if he wishes to display his Supreme tattoo, but as NBA franchises continue to generate massive amounts of revenue by exploiting their uniforms to sell ad space, league’s restriction on players advertising on their bodies will continue to be controversial. The current collective bargaining agreement between the league and the players’ association is set to expire after the 2024 season, so the issue of tattoo advertising will likely rear its head during negotiations for the next agreement.
J.R.Smith (@teamswish), Instagram (Sept. 29, 2018), https://www.instagram.com/p/BoUhy1PnKpg/?hl=en&taken-by=teamswish. [https://perma.cc/VUN6-4H48]↩
NBA-NBAPA Collective Bargaining Agreement, NBA Players Association, (Jan. 19, 2017), http://3c90sm37lsaecdwtr32v9qof.wpengine.netdna-cdn.com/wp-content/uploads/2016/02/2017-NBA-NBPA-Collective-Bargaining-Agreement.pdf. [https://perma.cc/6YNQ-JC2H]↩
Foulston Siefkin LLP, Politics and Work Don’t Always Mix, 15 No. 7 Kan. Emp. L. Letter 1,Oct. 2008.↩
U.S. Const. amend. I.↩
Foulston Siefkin LLP, supra note 3.↩
See Roberts v. Ward, 468 F.3d 963, 969 (6th Cir. 2006).↩
NBA-NBAPA Collective Bargaining Agreement, supra note 2, at 463.↩
Darren Rovell, NBA Signs Deal with Nike; logo to appear on uniforms, ESPN (June 11, 2015), http://www.espn.com/nba/story/_/id/13053413/nba-signs-8-year-apparel-deal-nike. [https://perma.cc/V4KN-58WS]↩
Jeremy Woo, Every NBA Jersey Sponsor, Sports Illustrated (July 26, 2017), https://www.si.com/nba/2017/07/26/nba-jersey-sponsors-list-teams-unform-patches-nike. [https://perma.cc/7R8U-B4VL]↩
Lance Madden, Iman Sumpert Gets Adidas Logo in Haircut, Scolded by NBA, Forbes (Apr. 10, 2013), https://www.forbes.com/sites/lancemadden/2013/04/10/iman-shumpert-gets-adidas-logo-in-haircut-scolded-by-nba/. [https://perma.cc/2WGY-A6DM]↩
Tyler Lauletta, Lonzo Ball forced to cover up tattoo due to NBA rules, Business Insider (Oct. 12, 2018, 5:47 PM), https://www.businessinsider.com/lonzo-ball-bbb-tattoo-cover-up-2018-10. [https://perma.cc/5WZT-SDUB]↩
Aaron Kr., Reebok Asks Marcin Gortat to Cover His Jordan Tattoo, Sneaker News (June 11, 2009), https://sneakernews.com/2009/06/11/reebok-asks-marcin-gortat-to-cover-his-jordan-tattoo/. [https://perma.cc/LEQ6-3VZH]↩
Jai Bednall, Kyrie Irving has a simple explanation for his ‘Friends’ tattoo, N.Y. Post (June 11, 2015, 10:15 AM), https://nypost.com/2015/06/11/kyrie-irving-shows-off-friends-tattoo-probably-loves-phoebe/. ↩