On October 27th, 2022, Kyrie Irving the star point guard for the Brooklyn Nets posted an Amazon link to an antisemitic movie to his Twitter and Instagram accounts. Irving was strongly condemned for the offensive post, and on November 3rd, following a maligned press conference was suspended by the Brooklyn Nets “for at least 5 games”. The punishment also included that the suspension would continue until Irving satisfied a series of objective remedial measures that addressed his conduct. These six requirements included; that Irving must apologize, make a $500,000 donation to anti hate causes, complete sensitivity training, complete anti-semetism training, meet with Anti-Defamation League (ADL) and Jewish leaders, and meet with team ownership to demonstrate understanding.
The reaction from the National Basketball Players Association (NBPA), the players certified union, has been one of concern. Jaylen Brown, current Celtics forward and NBPA vice president, noted that the concern was over the lack of guidelines in place in the current collective bargaining agreement for player discipline. Currently, under the NBA collective bargaining agreement, discipline is handled with the discretion of the league regarding matters such as criminal conviction, substance abuse, and firearms. However, the CBA is notably lacking in regards to employee/player discipline in specific matters of discrimination related to misconduct. Rather, the NBA reserves the right to enact discipline if a player engages in acts prejudicial to or against the best interest of basketball. 
As the union is likely to appeal in arbitration, the issue will be whether the NBA excessively punished Irving pursuant to the CBA and National Labor Relations Act (NLRA). As we saw in the “Deflate-gate” case, suspensions upheld in arbitration under a CBA are valid so long as they “draw from the essence of the contract” and was not “an arbitrators’ own brand of industrial justice”. As stated above, the NBA has discretion to discipline for acts prejudicial to basketball. However, not all is lost for Irving, as the National Labor Relations Bureau (NLRB) ruled in the Care Onedecision. In that case the NLRB found that employers can exercise discretion in employee discipline so long as the action taken “is similar in kind and degree to what the employer did in the past within the structure of established policy or practice”. This means that the league’s punishment may be evaluated in relation to the punishments handed out in other cases.
For examples of similar incidents, in 2021, Miami Heat center Meyers Leonard was suspended for a week and fined $50,000 for use of anti-semetic slur. Furthermore, in September 2022, Minnesota guard Anthony Edwards was fined $40,000 for use of a homophobic slur. These prior suspensions and fines become important in the labor arbitration context when evaluating whether the punishment given to Irving was with “just cause”. In arbitration, “just cause” is the principle that decisions relating to discipline or discharge of employees must be made with a “just” reason. While there is no bright line rule for evaluating “just cause”, arbitrators most commonly use a 7-factor test in making the determination. For this situation, the factor of equal treatment would be the area most in issue as reflected in the comments by NBPA members.
In this context equal treatment means that employers cannot implement considerably harsher discipline on one employee compared to another who committed the same or substantially similar offense. As shown above, the league has implemented a punishment that required more steps and a much more substantial fine on Irving than was given to Leonard or Edwards.
While this scenario plays out, there are important lessons that can be gleaned. First, the NBPA, can test the current iteration of the CBA for protection from disparate punishment. With the Current CBA set to expire in 2023, this could prove to be an area of contention in future negotiations as the players seek a level system of discipline. Furthermore, this serves as a chance to gain insight in employee/employer discipline disputes relating to social media. Regardless, the ensuing arbitration could lead to new changes in the CBA and the business of basketball as a whole.
 Brian Lewis & Brian Wacker, Kyrie Irving Raises Eyebrows with Tweet to Movie Filled with Anti-Semitic Disinformation, N.Y. Post (Oct. 28, 2022, 8:36 PM), https://nypost.com/2022/10/28/kyrie-irving-raises-eyebrows-with-tweet-to-movie-filled-with-anti-semitic-disinformation/.
 Jasmyn Wimbish, Net Give Kyrie Irving Six Requirements to Fulfill Before He Can Return from Suspension, Per Report, CBS Sports (Nov. 7, 2022, 4:26 PM), https://www.cbssports.com/nba/news/nets-give-kyrie-irving-six-requirements-to-fulfill-before-he-can-return-from-suspension-per-report/
 Paul Rudder, The NBAPA Isn’t On Board with the Specifics of Kyrie Irving’s Punishment, but What Did They Have to Say?, Diario AS (Nov. 8, 2022, 2:48 PM), https://en.as.com/nba/the-nbapa-isnt-on-board-with-the-specifics-of-kyrie-irvings-punishment-but-what-did-they-have-to-say-n/?omnil=resrelrecomv.
 See Id.
 Id. at A-24.
 See Rudder, supra note 5.
 Natl. Football League Mgt. Council v. Natl. Football League Players Ass’n, 820 F.3d 527 (2d Cir. 2016).
 800 River Road Operating Company, LLC d/b/a Care One at New Milford, 369 NLRB No. 109 (June 23, 2020).
 Malika Andrews, Miami Heat’s Meyers Leonard Fined $50,000, Suspended for Week for Using Anti-Semitic Slur, ESPN (Mar. 11, 2021), https://www.espn.com/nba/story/_/id/31044935/miami-heat-meyers-leonard-fined-50000-suspended-week-using-anti-semitic-slur
 Jamal Collier, NBA Fines Minnesota Timberwolves Star Anthony Edwards $40K for Anti-Gay Comments on Social Media, ESPN (Sep. 20, 2022), https://www.espn.com/nba/story/_/id/34631645/nba-fines-minnesota-timberwolves-star-anthony-edwards-40k-anti-gay-comments-social-media.
 Alyson Raphael, Arbitrating “Just Cause” for Employee Discipline and Discharge in the Era of Covid-19, 34 Geo. J. Legal Ethics 1240 (2022).
 See Wimbish, supra note 2.
 Adrian Wojnarowski, NBA Pursuing Upper Spending Limit in New Agreement with NBPA, ESPN (Oct. 28, 2022), https://www.espn.com/nba/story/_/id/34896826/sources-nba-pursuing-upper-spending-limit-new-agreement-nbpa