The Nets, Joe Tsai And Why the NBA Is Sensitive to Questions of Fairness

Brooklyn Nets minority owner Joe Tsai was fined $35K by the NBA for making public statements supporting GM Sean Marks for protesting against missed calls. Here is why an owner claiming that NBA games aren't fair is a particularly worrisome perspective for the league.

NBA commissioner Adam Silver has fined Joe Tsai, who owns 49% of the Brooklyn Nets, $35,000 for making a public statement detrimental to the NBA. Tsai’s statement was delivered through a tweet the Alibaba Group co-founder published on Sunday, one day after the controversial Game 4 on Saturday in the Nets - Philadelphia Sixers series. During the game, Jared Dudley and Jimmy Butler were ejected for shoving each other. There were also several calls and lack of calls that drew the ire of Nets head coach Nets head coach Kenny Atkinson and Sixers head coach Brett Brown. The Sixers pulled out the victory, 112 to 108.

Following Game 4, Nets general manager Sean Marks entered the referees’ locker room to convey his disgust that the refs hadn’t called a flagrant two foul on Joel Embiid. Marks’s unauthorized entrance led the NBA to suspend him for one game and fine him $25,000. The NBA’s “Last Two Minute” or L2M report, which reviews officiating, confirms that there were several incorrect non-calls in Game 4. While Marks obviously shouldn’t have entered the referees’ locker room, his and others’ criticisms about the officiating were partly validated by the NBA’s review.

At first glance, Tsai’s comment might seem too mild and polite to warrant a punishment. “My partners and I,” Tsai writes, “have spoken and the entire Nets ownership group support our GM Sean Marks for protesting the wrong calls and missed calls. NBA rules are rules and we respect that, but our players and fans expect things to be fair.”

Tsai, a Yale Law School alumnus and former tax attorney, selected his words thoughtfully. He refers to a collaborative and deliberative process by the Nets ownership group in evaluating Mark’s conduct. Tsai also expresses respect for NBA rules. Not only is his statement devoid of obscenities or inappropriate words, his tone is measured and restrained.

Tone, however, is not the only element of interest to Silver in assessing Tsai’s tweet. Silver was likely drawn to Tsai taking time to construct his tweet. It wasn’t a “heat of the moment” rant where Tsai was caught up in emotion right after the game but rather an intentional message to the public. That depiction sounds like a positive one for Tsai but it’s not when Silver finds Tsai’s words problematic. Silver knows that Tsai sought to make a point and it was one that Silver believes undermines the league.

With that in mind, Silver was surely displeased by Tsai referring to “wrong calls and missed calls”—statements that directly undermine NBA referees. Even more aggravating for Silver, Tsai implied that NBA games are not fair. Tsai referred to an unmet expectation that “things [will] be fair” in NBA games.

An owner claiming that NBA games aren’t fair is a particularly worrisome perspective for a league that markets its games to consumers as featuring genuine competition and fair play. It’s the same reason why Silver is irked by NBA teams that tank for better lottery odds or that rest players whom they might later trade or need healthy for the playoffs. The NBA is not the WWE where fights are scripted. The games are supposed to reflect real competition judged by neutral referees and where outcomes aren’t predetermined.

The league is also mindful that litigation has surfaced when games seem to lack genuine competition: recall that a Miami Heat ticketholder filed a consumer law complaint against the San Antonio Spurs in 2012 after Spurs coach Gregg Popovich had sent home most of the starting lineup.

Lastly, in a world when eight states have legalized sports betting and a couple of dozen others might do so in the near future, and where the NBA has partnered with MGM, Tsai’s narrative about unfair officiating will irk the NBA. The league is especially sensitive on the topic of officiating: the NBA employed Tim Donaghy, a referee who in the 2000s had collaborated with organized crime to influence point spreads in games.

Silver is also clearly within his powers to punish Tsai. Article 35A of the league constitution stipulates that an owner or team official who “gives, makes, issues, authorizes or endorses any statement having, or designed to have, an effect prejudicial or detrimental to the best interests of [the NBA] shall be liable to a fine not exceeding $1,000,000 to be imposed by the Commissioner.” Tsai, who is reportedly worth $10 billion, will have 10 days to pay the $35,000 fine.

Tsai will pay the $35,000 and probably not be too upset about it. While $35,000 is a lot of money for most of us, it’s likely not as meaningful to someone who is worth more than $10 billion. Tsai’s willingness to speak up for his franchise is also probably endearing to Nets fans and Nets players. To the extent he views the fine as boosting his reputations with his franchise’s different constituencies, it might be $35,000 well spent.

Further, the fine is unlikely to cause any lasting strain between Tsai and Silver. Tsai owns the WNBA’s New York Liberty and is on the board of directors of NBA China. He also reportedly has a 2021 option to buy additional equity in the Nets from majority owner Mikhail Prokhorov. If that purchase occurred, Tsai would become the Nets’ majority owner—pending NBA approval. In reviewing the potential purchase, NBA officials might ask Tsai a few questions about whether he intends to again publicly criticize referees or question the fairness of games.

Until then, Game 5 is tonight. We’ll see if Tsai offers any thoughts after the game.

Michael McCann is SI’s legal analyst. He is also Associate Dean of the University of New Hampshire School of Law and editor and co-author of The Oxford Handbook of American Sports Law and Court Justice: The Inside Story of My Battle Against the NCAA.