The Revival of Wildcat Strikes: The National Basketball Association and the Use of Labor Strikes for Racial Justice

By: Bailey Nickoloff

On August 26, 2020, the Milwaukee Bucks boycotted their scheduled National Basketball Association (NBA) playoff game against the Orlando Magic.[1] In what news outlets are calling a wildcat strike, the Bucks refused to play on account of Kenosha, Wisconsin law enforcement officers shooting an unarmed black man, Jacob Blake, in the back seven times.[2] This strike led to other professional teams from other professional sports organizations to hold similar demonstrations, amounting to what was arguably the largest and most coordinated wildcat strike in professional sports history.[3]

A wildcat strike occurs when employees, without the consent of their respective unions, decide to withhold labor.[4] The players participated in this strike despite the no-strike and no-lockout clause in their 2017 collective bargaining agreement (CBA) with the NBA.[5] Congress enacted the National Labor Relations Act (NLRA) in 1935 to encourage these agreements.[6] Section 7 of the NLRA states, in part, “Employees shall have the right to self-organization . . . and to engage in other concerted actives for the purpose of collective bargaining or other mutual aid or protection.”[7] However, because NBA players signed the CBA with its no-strike clause, the NLRA does not protect them upon termination.[8] Additionally, in October of 2019, the National Labor Relations Board (NLRB) ruled wildcat strikes are not a protected form of striking once employees become aware that their union disapproves of and disavows the strike.[9] Unlike other past actions by NBA players to address racial injustice, their union’s management did not approve of this most recent strike.[10] It is safe to say that, in conjunction with the no-strike clause and the nature of the strike, the NBA was well within its rights to terminate these players for breach of the agreement.

One remedy available to employers when an employee violates a no-strike clause is simply hiring replacement employees.[11] Yet, how would the NBA replace employees like LeBron James, Anthony Davis, and Giannis Antetokounmpo? In 2019 alone, LeBron James made $35.7 million while playing on the court for the Los Angeles Lakers.[12] In the 2019 season, the LA Lakers alone made $434 million in revenue.[13] Collectively, the NBA derives almost 40% of its revenue from ticket sales and in-game spending—a major blow to the league this year, as the COVID-19 pandemic essentially eliminated this source of revenue.[14] Now add the loss of LeBron James to the roster, and the results could devastate these teams and the NBA as a whole.

While rulings from the NLRB and the passage of the NLRA are meant to dissuade wildcat strikes and water down worker’s rights, the ability of an employer to effectively enforce a no-strike clause comes into question when employees are extremely valuable.[15] It also comes into question when employees and their unions increasingly participate in a highly publicized social movement.[16] On May 29, 2020, the National Basketball Players Association (NBPA), the union representing the interests of NBA players, launched the Police Accountability Project.[17] The mission of the project is twofold, stating:

Create and manage a nation-wide database of instances of police misconduct and abuse; and
Initiate and or support community efforts to remove those local officials in those jurisdictions evidencing historical indifference to or affirmative protection of predatory police officers.[18]

With the recent events and the racial reckoning within United States society, governments, and institutions, we may see more wildcat strikes like those of the NBA, as well as an increased unwillingness and hesitancy to enforce those no-strike clauses in the future.

[1] Dylan Scott, The night the NBA suddenly stopped—and why it matters, Vox (Aug. 27, 2020, 1:30 PM), https://www.vox.com/2020/8/27/21403891/nba-playoff-games-boycott-bucks-lakers-jacob-blake.

[2]See id.; see also Edward Ongweso Jr., Why the NBA Wildcat Strike is so Important, Vice (Aug. 27, 2020, 3:11 PM), https://www.vice.com/en_us/article/ep47pj/why-the-nba-wildcat-strike-is-so-important.

[3]Lucy Diavolo, NBA, WNBA, MLS, and MLB Players Refuse to Play in Sports-World Wildcat Strike, Teen Vogue (Aug. 27, 2020), https://www.teenvogue.com/story/nba-wnba-mls-mlb-players-wildcat-strike.

[4] Gregor Gall, Wildcat strike, Encyclopedia Britannica, https://www.britannica.com/topic/wildcat-strike (last updated Jun. 14, 2019).

[5] Collective Bargaining Agreement, Nat’l Basketball Players Ass’n 390 (Jan. 19, 2017), https://cosmic-s3.imgix.net/3c7a0a50-8e11-11e9-875d-3d44e94ae33f-2017-NBA-NBPA-Collective-Bargaining-Agreement.pdf.

[6] Nat’l Lab. Rel. Bd., The Right to Strike, https://www.nlrb.gov/strikes (last visited Sept. 23, 2020).

[7] National Labor Relations Act § 7, 29 U.S.C. § 157 (1935).

[8] See Nat’l Lab. Rel. Bd., supra note 6; see also Collective Bargaining Agreement, supra note 5.

[9] 386 N.L.R.B. No. 84 (2019).

[10] Abdul Malik, The NBA Work Stoppage is a Perfect Model for a Wildcat Strike, Org. Work (Aug. 27, 2020), https://organizing.work/2020/08/the-nba-work-stoppage-is-a-perfect-model-for-a-wildcat-strike/.

[11] Alexi Fernández Campbell, 5 questions about labor strikes that you were too embarrassed to ask, Vox (Sept. 20, 2019, 7:40 AM), https://www.vox.com/policy-and-politics/2019/9/20/20873867/worker-strike-walkout-stoppage-firing-job.

[12] Kurt Badenhausen, The NBA’s Highest-Paid Players 2019: LeBron James Leads with $89 Million, Forbes (Feb. 12, 2019), https://www.forbes.com/sites/kurtbadenhausen/2019/02/12/the-nbas-highest-paid-players-2019-lebron-james-leads-with-89-million/#323dcd8825d1.

[13] Christina Gough, Los Angeles Lakers’ revenue 2001-2020, Statista (Feb. 26, 2020), https://www.statista.com/statistics/196721/revenue-of-the-los-angeles-lakers-since-2006/#:~:text=The%20statistic%20shows%20the%20revenue,to%20434%20million%20U.S.%20dollars.

[14] Andy Uhler, NBA “bubble” has been a success, but how are the league’s finances?, Marketplace (Aug. 14, 2020), https://www.marketplace.org/2020/08/14/nba-bubble-covid-19-playoffs-league-costs-disney-world-orlando-tv-contracts-ratings/.

[15]See Ongweso, supra note 2.

[16]NBPA Update on Current Social Crisis, Nat’l Basketball Players Ass’n, https://nbpa.com/playeractivism (last visited Sept. 23, 2020).

[17] Id.

[18] Id.