NBA Dress Code, Genetic Testing of NBA Players, and Player Autonomy

This afternoon I will be speaking at the University of Pennsylvania Law School as a guest of the University of Pennsylvania Journal of Labor and Employment Law. I am one of three panelists on a panel that will discuss the new NBA dress code, genetic testing of NBA players, and broader issues of autonomy and privacy in the NBA. The other two panelists are Alan Milstein, who needs no introduction, and Hal Biagas, deputy counsel of the National Basketball Players' Association. The panel's moderator is Professor N. Jeremi Duri of Temple Law School. The panel is part of the Professional Sports and Entertainment Symposium, which will also be featuring Donald Fehr, Executive Director of the Major League Players' Association, among other distinguished speakers.

In conjunction with this talk, I'm pleased to make available a draft of my new law review article: The Reckless Pursuit of Dominion: A Situational Analysis of the NBA and Diminishing Player Autonomy, 8 U. Pa. J. Lab. & Emp. L. __ (forthcoming, 2006). I invite you to download the draft on the Social Science Research Network, and I welcome any comments (my e-mail address is mmccann[at]mc.edu]). Here is an abstract -- and I will post more on it next week:

The Reckless Pursuit of Dominion examines required genetic testing of NBA players from a situational vantage point, integrating socio-psychological, legal, and ethical analyses. The core argument may be expressed as follows: required genetic testing of NBA players appears consistent with a broader and largely deleterious agenda by the NBA to control players. Since implementation of the rookie wage scale in 1995 through the recent imposition of a paternalistic player dress code, the NBA has increasingly usurped player autonomy. The NBA’s capacity to do so largely rests in its adroit manipulation of the situational influences that influence fans and media. For instance, because of unappreciated cognitive biases, fans and media often embrace distorted views of player’s maturity, arrest propensity, and collegiate experiences. As a result, NBA players tend to be wrongly identified as immature, out-of-control, and hopelessly uneducated. In turn, the NBA has designed policies that ostensibly remedy these feigned “problems” while less-detectably transferring autonomy from player to league. In short, the league sees that others often fail to see, and that enables it to surreptitiously control players.

Here is an excerpt from The Reckless Pursuit of Dominion on the new NBA Dress Code (from pages 11-12):

A number of NBA players have characterized the dress code as “racist” and emblematic of the NBA’s increasing control over player autonomy and human expression. Perhaps bolstering this sentiment are recent NBA endorsement and licensing agreements that appear to celebrate the very lifestyle norms prohibited by the dress code. Consider the league’s decision to hire British comedian Sacha Cohen (a.k.a. “Ali G”) to promote the NBA in television commercials. In the commercials, Cohen is dressed in a tracksuit accessorized by a large, bulky chain, while donning a skullcap and wraparound sunglasses—in other words, his attire expresses the very same “street” or “hip-hop” culture prohibited by the dress code. Similarly, the league has licensed a videogame called “NBA Ballers,” which pitches itself as, “the exclusive one-on-one basketball videogame highlighting the bling-bling lifestyle of NBA players.” In the game, players take on the identity of actual NBA stars and accumulate “mansions, cars, jewelry, women -- if you've spotted it on ‘MTV Cribs,’ you're going to see it here" . . . Indeed, when the league exercises its authority, it celebrates “bling-bling”; when the players exercise their autonomy, the league castigates “bling-bling.”

And lastly, here is an excerpt on required genetic testing (from page 50):

Perhaps we should not find it surprising that an NBA player represents the first professional athlete petitioned to take a DNA test, that the player skipped college altogether, that the test was designed to detect the presence of an obscure illness, that comparable and less invasive exams had already been passed, and that an NBA team perceived broad public support and moral authority in orchestrating such a requisition. Indeed, the entire Eddy Curry affair appears consistent with the NBA’s grander effort to extract player rights, and to do so while enjoying broad situational support in the face of counter-factual evidence.

As noted above, this is a pre-edited draft, so there may be a typographical error or two, and I would not be surprised if there are perhaps several blue-booking errors in the footnotes (and my apologies to the Journal's editors for that!). In any event, I hope that you get a chance to download and read it. Like I said, I very much welcome any feedback by e-mail.

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