The countdown clock for the NBA regular season is quickly winding down. It is almost like there are 4.7 seconds left, we are all tied up, and just got an offensive rebound.
So, before we dribble out the clock, it is important to address probably the most pressing issue of the upcoming season. And, yo, J.R., again…it’s you.
Okay, okay, I get it. LeBron is on Los Angeles and that’s a big deal. Believe me, I watched the ESPN/TNT Lakers debut, that they lost both times to Denver. The announcers treated the game like a Laker’s intersquad scrimmage, as if Denver didn’t exist all while Byron Scott lost his mind about LeBron in purple while they were down 20 to the Nuggets’ bench. I also get that DeMarcus Cousins is in Golden State. That’s a big deal, of which I have already discussed. But from a legal analyst’s standpoint, there is nothing more interesting than J.R. Smith’s Supreme Tattoo.
J.R. Smith, the Cleveland Cavaliers shooting guard, announced on his Instagram account that the NBA was planning on fining him every game if he did not cover up his new Supreme brand tattoo on his leg.
Why is this a big deal? Why is the NBA drawing a line in the sand on his tattoo and more importantly, can the NBA do this? Let’s break that down legally.
What is the Supreme Tattoo?
I have to admit, when I first heard about this story, I had no idea what Supreme was. So, you may be like me and unfamiliar with Supreme. Supreme is a fashion brand founded in 1994 back when I was running around in elementary school. Supreme, back then, was mostly marketed to skateboards and mainly to skateboarders. However, recently the brand has attempted to expand its market and now appeals to additional cultures and subcultures, including to those in the hip-hop industry. Supreme now has stores in New York, Los Angeles, London, Tokyo and Paris and has shed itself of the counterculture beginnings into a more high-end urban brand.
Now, looking at J.R.’s tattoo we can see that it is obviously a homage to the Supreme brand.
Smith, in a recent interview, described how he got the tattoo, saying, “I got the tattoo the other day, my guy Rico in the Bronx did it for me, There was a lot behind it. People were like, ‘Are they [Supreme] paying you for it?’ and I was like, ‘No,’ so they were like, ‘What are you doing it for?’ And I was like, ‘That’s who I am.'” So, really what’s the big deal? It’s just a tattoo of a brand that he likes. A recent survey found that 55% of NBA players have tattoos, and it would be ridiculous to think that at least some of them are brands. What gives?
Can the NBA restrict his tattoo?
One difference between Smith’s tattoo and others in the league is specifically that it is a company logo. In a previous post, I wrote about Colin Kaepernick and whether the NFL could fire, fine, or suspend players for their protests. There is actually a little overlap, which I will address later. But for right now it is important to understand that, just like in Kaepernick’s case, many of these behaviors are regulated by a collective bargaining agreement between the owners and the player’s union. Unlike a normal at-will job, where an individual can be fired/punished for almost anything, the NBA operates under a different set of rules that are agreed upon between the players (represented by the NBAPA) and the owners. This is called the CBA.
The NBA CBA was agreed upon in early 2017, so it is fairly new and has a governing window through 2024. Part of what is agreed upon is the league rules related to jerseys and apparel worn in game. Article XXXVII of the rules relates to player appearances and uniforms. This article is pretty clear on the matter. It states:
“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.”
This really isn’t new language as it was actually transferred from previous CBA agreements. The league has used this language before to stop Iman Shumpert from shaving an Adidas brand in his hair. Even more analogous to Smith’s situation, however, was last year when the NBA used this provision to demand that Kelly Oubre remove his Supreme brand leg sleeve.
There is a small window of discrepancy that J.R., if he chose to fight it, could lay claim on. In the NBA official rulebook, Comment H discusses “player/team conduct and dress.” Comment H states that “the only article bearing a commercial ‘logo’ which can be worn by players is their shoes.” This is an important distinction in that it could be debated how high up a shoe can go, and also the definition of the word “worn.” Is a tattoo, which is a permanent body modification, worn? To be honest, these are fairly pedantic places to couch an argument that in many ways, as I will discuss below, would most likely be better off unmade.
That being said, clearly, the NBA has the power, under the CBA, to ban such behavior. Any arguments of free speech, as with Kaepernick, need to be tempered within an understanding that the United States Constitution is designed to limit the government, not businesses, which the NBA clearly is. A first amendment issue would not be relevant here.
Why does the NBA want to restrict his tattoo?
A few years back the Dallas Cowboys, following the shooting of a Dallas Police Officer, petitioned the league to allow them to wear a patch honoring the Dallas Police Department and the fallen officer. The NFL denied their request and (SHOCKER!) pandemonium and lack of understanding ensued all over the internet. And even more shocking, it became a hot political issue. But the reason the NFL denied this patch had nothing to do with politics, but everything to do with money. The NFL had just signed a massive jersey deal with Nike and risked having the entire deal found null and void and losing literally BILLIONS of dollars over a police patch, since, per their contract, Nike had exclusive rights to what is put on the jerseys.
Nike, again, is at the forefront of J.R. Smith’s tattoo debate. Supreme has become a small, yet feisty, competitor to Nike. Based on market share, Supreme is reportedly worth about 1 Billion dollars to Nike’s reported 27 Billion dollars. Just like in the NFL, Nike negotiated an 8-year jersey deal with the NBA back in 2015 worth reportedly over $1 Billion dollars. Allowing a player to advertise one of their competitors on their body (not a shoe, as allowed, but on the body where a jersey is regulated), would potentially cause a breach of contract and the NBA could stand to be on the hook for severe damages upwards and even above the billion dollars of the original deal. This also addresses J.R.’s concern on his Instagram account that they “don’t make people cover up Jordan logos NIKE checks.” Jordan, and of course the Nike Swoosh, are trademarks of Nike Brand. It would be ridiculous for Nike to be banned logos from a league in which they paid to display their logos.
But this is not just in the best interest of Nike or the owners. It’s actually in the best interest of J.R. Smith and the players. The money the NBA gets from the Nike deal, and all the other deals as well, all goes into a pot called Basketball Related Income. This BRI, per the CBA must be distributed between the players and owners at a 49%-51% division, respectively. Meaning the higher the BRI, the higher the money given to players. This BRI cut gets divided in the salary cap/salary floor which directly impacts the amount of money a player like J.R. Smith can command from his owner. So, in a weird way, it might be financially beneficial for J.R. Smith to actually cover the tattoo in an effort to not anger an indirect employer in Nike. Not to mention the fact that J.R. himself is sponsored by Nike and wears Nike brand shoes in games.
There has been much push back about this from players and former players of forcing someone to cover up a tattoo. Former player Stephen Jackson chimed in saying, “You can’t tell nobody what kind of tattoo to get.” I love Stephen Jackson and would have killed to get him on any of my favorite teams back in the day. But his take grossly misunderstands how the NBA CBA works and that the players union agreed to this regulation. It’s also important to understand that the NBA Players Union is the strongest in professional sports. Not just that but the relationship between owners and players and the league is better than any other professional league right now. Everyone is benefiting financially from this. When the NBA brand looks good, there are more sponsors, and more BRI, and bigger contracts. Bringing this issue up right now seems like bad timing and an unnecessary shot attempt that could upset the applecart.
But then again, shot selection and time management haven’t really been J.R.’s strong suit, now has it.