The NBA's Version of the Hart-Fuller Debate

Monday night, in the closing moments of Game 4 of the NBA Western Conference semifinals, San Antonio Spurs reserve forward Robert Horry committed a hard foul on Phoenix Suns point guard (and two-time league MVP) Steve Nash. Various players confronted one another angrily, but no punches were thrown. Horry was ejected, Suns guard Raja Bell received a technical foul for his reaction to Horry's initial foul, and the Suns won the game. In the meantime, however, it was observed that two Suns players--first-team-NBA star Amare Stoudemire and reserve Boris Diaw--had temporarily wandered off the bench, in seeming violation of NBA Rule 12(VII)(c), which provides: "During an altercation, all players not participating in the game must remain in the immediate vicinity of their bench. Violators will be suspended, without pay, for a minimum of one game and fined up to $50,000." (Read all the rules here.) The NBA has not yet announced any formal action.

As a basketball fan AND a law professor, I've been enjoying how the familiar rules/standards debate has been playing out over the question of how the NBA should resolve this issue. (A similar debate involving the same rule erupted a number of years ago during a Knicks/Heat playoff series.) Suns fans and others point out how unfair it would be for the league to suspend one of the two best players on the Suns and a key reserve, even if Horry is also suspended, given that Horry was the instigator and that neither Stoudemire nor Diaw actually hurt or even tried to hurt anyone. Enforcing the letter of the rule, they say, would completely undermine its purpose, as it would reward violence by mediocre players directed at stars. (Footnote for Horry fans: Yes, he has made a career in recent years of hitting very big shots in crucial situations, but he is clearly less important to the Spurs than Stoudemire and Diaw are to the Suns.)

Meanwhile, Spurs fans and others have been providing the standard response: The main point of having rules as opposed to standards is to follow them regardless of whether their background justification obtains. A firm, no-discretion rule requiring a mandatory suspension for leaving the bench gives players a very strong incentive to stay put, and thus helps prevent incendiary circumstances from escalating out of control. Indeed, it could be argued that the rule did its work in this very case: Remembering the rule (albeit a tiny bit too late), Stoudemire and Diaw quickly returned to the bench, and other players from both teams remained on the bench. Thus, there was no fight.

So far, it looks like the Spurs fans win this debate, but the Suns are pretty good lawyers, and so they've come up with two inter-related counter-arguments. First, they argue that Stoudemire and Diaw did not violate the rule because there was no "altercation." The Horry/Nash/Bell incident was just a hard foul, a technical foul and an ejection. Nobody received a "fighting foul," and so Rule 12(VII)(c) did not come into play. Second, they note that if the Horry/Nash/Bell incident counts as an "altercation," then so should an incident earlier in the game, when Spurs center Francisco Elson accidentally landed on Spurs forward James Jones, as Elson swung down from the rim after dunking. Jones momentarily took offense, and in that moment Spurs superstar Tim Duncan stepped off the bench, followed by teammate Bruce Bowen, who brought him back. If the league suspends Stoudemire and Diaw, Suns fans say, it must also suspend Duncan and Bowen. And since that would be roughly a wash in terms of talent, some might conclude, the better decision by far would be to conclude that neither incident was an "altercation," and just let the teams play at full strength.

As a legal scholar I don't have a strong intuition about the right answer here, although as a basketball fan I'd like to see the teams play at full strength. (My main rooting interest in this series is for former Knick forward/center Kurt Thomas, who been doing a more-than-respectable job for the Suns in defending the almost-impossible-to-stop Duncan, while hitting his mid-range jumper at the other end of the court.) I would note how the Suns' response to the Spurs' a-rule-is-a-rule argument follows the familiar path of legal realism. Yes, the Suns say, the rule itself provides the league no discretion if there is an altercation, but the triggering term "altercation" is itself ambiguous. Henceforth, the Hart-Fuller Debate shall be known as the Horry-Nash (Non?)Altercation.