NBA v. Supreme: Freedom of speech or advertising?

      When questioned regarding his communication with the NBA, and their decision to fine him each game he does not cover his “SUPREME” tattoo, the Cleveland Cavaliers guard responded “I don’t talk to the police.” J.R. Smith has had his share of run-ins with NBA league officials for his behavior both on and off the court. Most recently though, the Cavaliers shooting guard’s issues stem from his involvement in an advertising dispute between the NBA and SUPREME (“Supreme”).

        We will be proceeding under the assumption that a substantial portion of readers are aware that the NBA is the National Basketball Association, however, fewer readers will be sure who, or what  Supreme is. Brief background. Supreme is a New York City originated skate billion-dollar brand founded in 1994, and has become a global fashion community known for its work with generations of artists, designers, musicians, filmmakers and photographers. The brand’s reputation for quality, style and authenticity has helped it establish a major role in pop culture, and current fashion trends. Supreme has collaborated with other brands such as Nike, Air Jordan, Vans, The North Face, Levi’s, Timberland, Louis Vuitton, Lacoste and Hanes.

One collaboration that we have yet to successfully see, and are unlikely to see in the near future; a Supreme and NBA collaboration. “NBA rules prohibit players from displaying any commercial logos or corporate insignia on their bodies or in their hair” reported NBA spokesman Mike Bass told GQ magazine. However, it is hard to ignore the facts surrounding the NBA’s handling of J.R. Smith’s latest trip to the tattoo shop, and the history of how the NBA has handled dress code, and on court player advertisement.

           On or around October 18, 1984, NBA Executive Vice President Russ Granik penned a letter to Nike Vice President Rob Strasser stating that Michael Jordan wore a certain pair of Nike basketball shoes that were in violation of the leagues rules and procedures because they were red and black.  Note that the Bulls uniform colors are red black and white. Legend has it that while Jordan continued to wear the shoe, Nike footed a $5,000.00 bill each night. That incident centered around the NBA’s “Uniformity of Uniform” rule, which required that players sneakers not only match team colors, but also their teammate’s shoes.

          Then came the infamous NBA dress code change under then Commissioner David Stern. On October 17, 2005 Stern announced the implementation of a mandatory dress code for all NBA and NBA Development players. The NBA’s dress code made it the first major professional sports league to implement such a player requirement. The dress code has widely been criticized as an attack on hip hop culture visible through players like Allen Iverson’s wardrobe decisions.

        However, the NBA prohibiting players from attending league appearances in do-rags, large jewelry, shorts, jeans, sneakers and jerseys does not seem to create a First Amendment issue. In J.R. Smith’s most recent gripe with the NBA, the pivotal issue is not uniform uniformity, or do-rags, but whether the NBA maintains the right to prohibit Smith from displaying his “SUPREME” tattoo during games; the instant issue is one of unauthorized advertisement.

      Former Detroit Pistons star forward Rasheed Wallace was approached during his career by an “unnamed” candy company with hopes if having Wallace tattoo its logo on his body. Rasheed Wallace refused the deal, and avoided inevitable action by the NBA. Although the deal never materialized, Wallace’s agent Bill Strickland told SFgate.com in 2002 that “[t]here’s nothing on the books that says he can’t do it.”  Obviously according to Mike Bass’s statement to ESPN, the NBA has established rules upon which the league believes they can defend fining players who do have corporate logo tattoos.

        Yet, Boston Celtics star guard Kyrie Irving sports a tattoo of the sitcom “Friends” logo, and has not faced fines from the NBA. The NBA’s leniency toward Irving’s tattoo could be based on the fact that Irving routinely wears an arm sleeve which happens to cover the ink. Washington Wizards forward Marcin Gortat has a tattoo of the Jordan brand “Jumpman” logo tattooed on his calf; the NBA has not taken any disciplinary actions in that instance either. However, note that the Jordan brand is a partner of the NBA. So why is the NBA threatening to fine J.R. Smith for each game he refuses to cover his Supreme tattoo? Because the NBA refuses to let players advertise for Supreme (a non-partner of the NBA). The only problem is, who says J.R. Smith was advertising for Supreme?

          During an interview with Complex magazine this summer, Smith told reporters that he was not paid to get the tattoo, is not sponsored by Supreme, and got the tattoo because “That’s who I am. That’s why I am who I am.” All personal and sports biases aside; does the NBA’s restriction of players’ tattoos constitute a restriction of their freedom of speech? Does the NBA have the right to restrict such speech in the employment context?

      One of America’s most touted characteristics is the freedoms afforded to the country’s citizens – two are relevant here – the freedom of speech, and the right to due process. The First Amendment to the United States Constitution guarantees that Congress shall make no law “prohibiting the free exercise thereof; or abridging the freedom of speech [. . .].”  The Fourteenth Amendment guarantees that the states shall not make or enforce any law which  abridges the privilege or immunities of any citizen. Here, the argument would have to be that Smith is being deprived of life, liberty, or property without due process of law.

          Funny thing about how the law works here, though. Professional sports leagues are private associations, and just like private corporations, are considered by law to be private actors. Actions taken by private actors are generally not subject to judicial review. Basically, just like judges are hesitant to get involved when CEO’s make controversial financial decisions (such as officer compensation rates) because of the existence of the business judgment rule, courts tend not to intervene in these circumstances unless the actions of the private association constitutes a fraud, the association violates its own rules, or the association’s actions are arbitrary and capricious. All of that goes to say, unless the NBA is depending on a rule that is not applied consistently with no clear pattern of enforcement, unless the NBA is committing fraud, or the NBA violates its own rules, J.R. Smith would have no legal standing to sue the NBA for fining him for displaying his Supreme tattoo.

       Not everyone reading this article is going to be a fan of J.R. Smith, or even the NBA. However, I would assume that we all have a desire to make sure that our freedoms are protected. Has the NBA started down a slippery slope when it comes to restricting player speech? Or is the NBA simply protecting its brand value from unauthorized advertisement?

      Does it change your mind to know that J.R. Smith, and the entire NBA was put on notice about the Supreme logo? Last season Washington Wizards guard Kelly Oubre Jr. told reporters “I don’t know if it’s too wavy for ‘em, but I was just having fun,” when asked why he was told by the Wizards to remove his Supreme arm sleeve. Does it change your mind to know that the Supreme arm sleeve that Oubre Jr. was wearing was produced in collaboration with Nike and the NBA? What exactly are the NBA rules on player advertising and sponsorship? What are the NBA’s rules on player appearance? Is it time for the NBA to revisit its policies?

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