F JOINT NBA/NBPA POLICY ON DOMESTIC VIOLENCE, SEXUAL ASSAULT, AND CHILD ABUSE
Through this Policy, the National Basketball Association (“NBA”) and the National Basketball Players Association (“NBPA”) (collectively, “the Parties”) have agreed to work together to address domestic violence, sexual assault, and child abuse in the NBA.
Acts that constitute domestic violence, sexual assault, and child abuse are prohibited at all times and regardless of where they occur.
For purposes of this Policy, “domestic violence” includes, but is not limited to, any actual or attempted violent act that is committed by one party in an intimate or family relationship against another party in that relationship. Such an act may include physical assault or battery, sexual assault, stalking, harassment, or other forms of physical or psychological abuse. It may also include behavior that intimidates, manipulates, humiliates, isolates, frightens, terrorizes, coerces, threatens, injures, or places another person in fear of bodily harm. Domestic violence can be perpetrated by current or former spouses, current or former domestic or same sex partners, persons who are living together or have cohabitated, persons with children in common, persons who have or had an intimate or dating relationship, and family members. Domestic violence can be a single act or a pattern of behavior in a relationship.
For purposes of this Policy, “sexual assault” includes, but is not limited to, any actual or attempted sexual contact or act to which one party has not consented. Lack of consent is deemed to exist when a person uses or threatens the use of force, harassment, or any other form of coercion against another. Lack of consent is also deemed to exist when a person is mentally incapable of giving consent, as a result of disability, incapacitation, intoxication, or otherwise.
For purposes of this Policy, “child abuse” includes, but is not limited to, any act or failure to act by a parent, caregiver, or adult that results in death, serious physical or emotional harm, or sexual or other exploitation of a child. Child abuse also includes behavior that poses an imminent risk of such harm to a child.
The Parties shall establish a joint committee to provide education, support, treatment, referrals, counseling, and other resources for players, their family members, and others at risk (the “Policy Committee”). The Policy Committee will be comprised of two representatives from the NBA and two representatives from the NBPA (the “Party Representatives”), as well as three independent experts with experience in domestic violence, sexual assault, and/or child abuse (the “Expert Representatives”). All decisions of the Policy Committee shall be made by a majority vote, unless otherwise stated in this Policy, and shall be final, binding, and unappealable.
The Party Representatives shall jointly select the three Expert Representatives to serve on the Policy Committee within 60 days of the issuance of this Policy. There shall be at least one Expert Representative on the Policy Committee at all times with specific expertise in each of the three subject areas (i.e., domestic violence, sexual assault, and child abuse). The Expert Representatives will each serve for the duration of this Policy; provided, however, that either the NBA or the NBPA may discharge any of them on an annual basis by serving written notice upon the Expert Representative(s) and upon the other Party within 60 days of the anniversary of the appointment of such person. If an Expert Representative is discharged, the Party Representatives shall jointly select a successor Expert Representative within 30 days of the notice of discharge.
In the event that the Party Representatives are unable to agree upon and jointly select any or all of the Expert Representatives within 60 days of the issuance of this Policy or within 30 days of the notice of any discharge of an Expert Representative, the following process will be implemented. Within five days following the deadline to select the Expert Representative(s), the Party Representatives shall exchange lists containing the names and qualifications of three proposed Expert Representatives per open position. Within five days following the exchange of such lists, the Party Representatives shall jointly select from that group of individuals the Expert Representative(s) needed to serve on the Policy Committee. If they are unable to do so, then, within an additional three-day period, the Party Representatives shall engage in a process of alternatively striking names from the lists until one name remains for each open position, and such person(s) shall be appointed as the Expert Representative(s).
Training and Education
The Parties seek to prevent incidents of domestic violence, sexual assault, and child abuse from occurring through educational programs and awareness training.
The Policy Committee will implement and oversee all training and educational programs for NBA players that address issues of domestic violence, sexual assault, and child abuse, and shall make all determinations related thereto including, but not limited to, the staffing, content, format, and frequency of such programs. The Policy Committee will annually review such programs to ensure that they are effective and that the content is appropriate, thorough, and properly communicated to the players.
Within 60 days of the issuance of this Policy, the Parties shall jointly select a service provider to support a 24-hour, confidential hotline that can be used by players, their families, and other victims of domestic violence, sexual assault, and child abuse as defined by this Policy to seek assistance and referrals (the “Service Provider”).
If the Parties are unable to do so, then, within five days following the deadline to select the Service Provider, they shall exchange lists containing the names, qualifications, and cost of three proposed Service Providers. Within five days following the exchange of such lists, the Parties shall jointly select the Service Provider. If the Parties are unable to do so, then, within an additional three-day period, they shall engage in a process of alternatively striking names from the lists until one name remains, and such organization shall be appointed as the Service Provider.
Treatment and Intervention
The NBA or the NBPA may refer a player to the Policy Committee in any of the following circumstances:
- As part of a disciplinary determination of the Commissioner for conduct in violation of this Policy; or
- After a Player is criminally convicted of an offense that involves conduct in violation of this Policy.
The Policy Committee will also be available as a resource to any player who voluntarily seeks assistance.
Once a player has been referred to the Policy Committee, an expert selected by the Policy Committee will conduct an initial evaluation of the player as soon as is practicable. Following such evaluation, the Policy Committee will develop a Treatment and Accountability Plan (“TAP”) for the player, as may be appropriate. As part of the TAP, the Policy Committee may require that the player submit to psychological or other evaluations and/or attend counseling sessions with a licensed professional, and take other steps that it deems necessary. In developing the TAP, the Policy Committee will take into account any treatment or counseling that the player may have initiated on his own or pursuant to a criminal resolution of any charges against him.
The Policy Committee will oversee the player’s compliance with any TAP, and shall provide additional support to the player as needed. Any treating professionals shall provide regular, written status reports to the Policy Committee that detail the player’s progress and compliance with the TAP. The Policy Committee may periodically revise, modify, extend, or close the TAP on its own initiative, on the recommendation of the player’s treating professional(s), or upon petition of the player. All information related to a player’s involvement with the Policy Committee shall be kept confidential.
The Policy Committee shall determine whether the player has successfully completed his TAP, and may also issue a revised TAP at any time. A player must receive a certification of completion from the Policy Committee in order to conclude his treatment and the oversight of the Policy Committee.
Players are required to comply with the directives of the Policy Committee, including with his TAP. If the Policy Committee determines that a player has failed to comply without a reasonable explanation, it shall notify the NBA. For the first such instance of non-compliance, the NBA shall issue a warning to the player. If such non-compliance continues for three additional days after the warning is issued, or for the second or any additional instances of non-compliance as determined by the Policy Committee, the NBA shall fine the player in the amount of $10,000 for each day that he fails to comply. Such fines shall continue until the player has, in the judgment of the Policy Committee, resumed full compliance.
If the Policy Committee determines that a player has demonstrated substantial non-compliance, without a reasonable explanation, through a pattern of behavior that demonstrates a mindful disregard for his treatment responsibilities, it shall notify the NBA, which shall thereupon impose:
- A one-game suspension for the first instance of substantial non-compliance; and
- A suspension that is at least one game longer than his immediately-preceding suspension for each additional instance of substantial non-compliance and that shall continue until, in the judgment of the Policy Committee, the player resumes full compliance with its directives, including with his TAP.
Any and all costs of the training, education, treatment, intervention, and other resources described above including, but not limited to, the Policy Committee, Expert Representatives, education and training programs, hotline, experts, and counselors, will be shared equally by the Parties (unless otherwise covered by the NBA Players Group Health Plan or other insurance plan provided to NBA players). The NBPA’s share shall be paid by the NBA and included in Player Benefits under Article IV, Section 6 of the CBA. The NBA’s share will be excluded from the calculation of Benefits under the CBA.
Investigation of Incidents
The NBA will give the NBPA and the player prompt notice of the commencement of any investigation into an alleged violation of this Policy.
The NBA’s investigation may include the use of third party resources including, but not limited to, outside legal counsel, outside investigators, or other individuals with relevant experience or expertise.
The NBA will notify the NBPA when it has concluded its investigation and report whether it believes a violation of the Policy has occurred.
Except in circumstances where the player has a reasonable apprehension of criminal prosecution, players shall cooperate fully with any NBA investigation under this Policy. Any player interviewed by the NBA as part of its investigation is entitled to have a representative from the NBPA present during the interview, and the NBA will provide the NBPA with at least 48 hours’ notice before any in-person interview.
Failing to cooperate in full, or interfering in any manner, with an NBA investigation will subject the non-cooperative individual to discipline consistent with the terms of Article VI, Section 11(a) of the CBA. It may constitute a violation of this cooperation requirement for a player to attempt to or enter into any agreement with a witness, victim, or other party that would discourage or prevent that individual from cooperating with an NBA investigation. However, the player is under no obligation to demand, request or otherwise encourage anyone to cooperate with an NBA investigation.
While an investigation is pending, the Commissioner may at any time place the player on administrative leave with pay for a reasonable period of time. The parties agree that administrative leave is not intended to be routinely applied during the pendency of every player investigation under this Policy. Instead, administrative leave should be applied in only those cases in which a balancing of all relevant factors clearly establishes that it is reasonable to do so under the totality of the circumstances.
In deciding whether to place a player on paid administrative leave, the Commissioner shall consider among other relevant factors the following non-exhaustive list of factors:
- The nature and severity of the allegation(s), including whether a weapon was involved and whether any injury was suffered by anyone (including the player);
- Whether the allegations are supported by credible information;
- The relationship between the player and accuser;
- Information regarding the player’s history of prior similar conduct, or lack thereof;
- The prior criminal or disciplinary history of the player, or lack thereof;
- The status of any criminal investigation and/or prosecution regarding the alleged incident, including whether any arrests have been made;
- The character of the player;
- The player’s reputation within the NBA community;
- The NBA’s past practice regarding discipline imposed on a player for similar allegations; and
- The risk of reputational damage to the NBA and/or the player’s team.
The NBA will give prompt notice to the NBPA, the player’s team, and the player of any decision to place a player on paid administrative leave pursuant to this Policy. The decision to place the player on paid administrative leave pending an investigation shall not preclude further disciplinary action by the Commissioner against the player in accordance with the provisions of this Policy.
While on administrative leave, the player shall be ineligible to play in any of his team’s games. However, the player will continue to receive his salary and other welfare benefits to which he would be entitled as an active player. The player and the player’s team may also request that the player be allowed to participate in non-public practices, workouts, or other team activities with the consent of the NBA, which shall not be unreasonably withheld.
A player may challenge the decision to be placed on paid administrative leave under the Grievance and Arbitration Procedure of the CBA. In evaluating such a challenge, the Grievance Arbitrator will determine whether it was reasonable for the Commissioner to place the player on administrative leave. A player may also request the Grievance Arbitrator review the length of a period of administrative leave that exceeds seven days. In such a proceeding, the Grievance Arbitrator will determine whether administrative leave in excess of seven days is reasonable based on the totality of the circumstances. Once a player challenges the decision to be placed on paid administrative leave, or the duration of such leave, the hearing before the Grievance Arbitrator must take place within 72 hours.
Based on a finding of just cause, the Commissioner may fine, suspend, or dismiss and disqualify from any further association with the NBA and its teams a player who engages in prohibited conduct in violation of this Policy. Repeat offenders will be subject to enhanced discipline.
Notwithstanding the foregoing, an admission to, or conviction for, any offense that involves conduct that violates this Policy, whether after trial or upon a plea of guilty, as well as any plea of no contest or nolo contendere, will conclusively establish a violation of this Policy. A violation based on this ground, however, shall in no way limit or prevent the NBA from continuing to investigate the incident. Additionally, such admission, conviction, or plea is not required in order for a Policy violation to have occurred. However, a player who is acquitted after trial in a criminal proceeding may not be subject to disciplinary penalties under this Policy.
In conjunction with any discipline imposed by the Commissioner for a violation of this Policy, the NBA may also require the player to undergo an evaluation under the supervision of the Policy Committee, to participate in relevant training, education, or counseling programs as determined by the Policy Committee, and/or to perform community service. Any discipline determined by the Commissioner may be referred to the player’s team for imposition.
Prior to the determination of any discipline, the Parties shall meet to discuss the matter. This conference shall be considered confidential, and no statements made during the discussion shall be admissible in any subsequent challenge to any discipline imposed on the player.
The Commissioner will determine all discipline under this Policy on a case-by-case basis, upon consideration of all facts and circumstances, including aggravating and mitigating factors.
Potential aggravating factors include, but are not limited to:
- Prior allegations of, or convictions for, prohibited conduct;
- The use of a weapon or other means of coercion;
- The use of, or threat to use, force or violence;
- The vulnerability of the victim;
- The presence of a minor;
- The nature and extent of any injury to the victim; and
- A civil verdict against the player for the underlying conduct.
Potential mitigating factors include, but are not limited to:
- Acceptance of responsibility;
- Evidence of self-defense;
- Complete and truthful cooperation with the investigation;
- Voluntary participation in any treatment or counseling programs;
- The player’s overall good character;
- The player’s reputation in the NBA community; and
- A civil verdict in favor of the player for the underlying conduct.
In cases where the Commissioner imposes a suspension, any period of time the player spent on paid administrative leave will be credited toward the suspension provided that the player remits to the League the applicable portion of salary that the player received while on paid administrative leave.
Challenges to any disciplinary action shall be made through the Grievance Arbitration process of the CBA.
The Parties recognize the importance of confidentiality and privacy to the success of this Policy. Accordingly, the Parties will maintain confidentiality throughout the investigatory, disciplinary, and treatment process, and will take reasonable measures to protect the information gathered pursuant to this Policy, including by any outside advisors or experts. Any medical information obtained during the investigatory, disciplinary, and treatment process will be kept confidential as required by applicable law.
At the same time, the Parties recognize that disclosure of certain information may be necessary to further the NBA’s investigation or may be required by law, including by court order or subpoena. Accordingly, the Parties cannot and do not guarantee that complete confidentiality will be maintained. The Parties also reserve the right to make notifications to law enforcement or other appropriate authorities if either the NBA or the NBPA becomes aware that there is a threat of imminent harm to any individual or in cases where the victim is a child or is either mentally or physically incapacitated. Additionally, in matters where a violation is found and discipline is imposed, such findings and discipline may be the subject of public statements by the NBA and/or the NBPA.
Under this Policy, it is prohibited to retaliate, or threaten to retaliate, against any individual who, in good faith, reports a potential violation of this Policy or who honestly participates in an investigation of such a report. It does not matter whether the investigation establishes that a violation of the Policy occurred, as long as the report of the violation or participation in the investigation is in good faith. Such retaliation includes, but is not limited to, threats, intimidation, harassment, and any adverse employment or other action, whether express or implied. Anyone who retaliates, or threatens to retaliate, against an individual who reports, or participates in an investigation into, an alleged violation of this Policy, or against any victim or other witness, will be subject to independent disciplinary action.
As with any complaint brought in bad faith, any individual, including coaches, general managers, or other team officials, who reports a violation of this Policy knowing such claim is malicious, false, or fundamentally frivolous shall be subject to disciplinary action.
Anyone who is the victim of or acting on behalf of a victim of domestic violence, sexual assault, or child abuse, as defined by this Policy, is strongly encouraged to call the hotline established under this Policy as soon as possible after the incident to discuss the availability of counseling, treatment, security, and other appropriate resources.
If you are in immediate danger or involved in a situation in which another person is in immediate danger, the Parties recommend that you contact 911 or your local police department. Support and crisis intervention is also available from the National Domestic Violence Hotline at 1-800-799-SAFE (7233).