The NBA In-Season Tournament, Platonic Golf, and the Constitutional Right to Same-Sex Marriage

[NB: Today's essay talks about basketball. If you're not interested in basketball, either don't read on or jump down to the tenth paragraph.]

The quarterfinal round of the first-ever in-season tournament for the blandly named NBA Cup begins tonight when the Sacramento Kings play the New Orleans Pelicans in the west and the Indiana Pacers host the Boston Celtics in the east. Tomorrow's quarterfinal games feature the Phoenix Suns and Los Angeles Lakers (KD versus Lebron!) and my beloved New York Knicks facing the 2021 NBA champion Milwaukee Bucks.

Like many longtime basketball fans, I'm not quite sure what to make of this event that NBA Commissioner Adam Silver modeled on the in-season tournaments that European soccer clubs play. I share the widespread disdain for the eye-assaulting special floors that were used in the group play games. And I'm a bit annoyed that as their reward for making the knockout round, the Knicks have to play an extra game in Milwaukee against Giannis and Dame--a game that, pursuant to the rules of this new gimmick, counts in the regular season standings and thus could be decisive in seeding for the playoffs at the end of the season.

Here I want to focus on another aspect of the in-season tournament: the incentive it created for teams to run up the score during pool play.

For what I'll call the regular playoffs, teams are seeded in accordance with their regular season records. If two teams have the same record, the NBA uses head-to-head record as a tie-breaker. If the two tied teams split their regular season matchups, there are second, third, and more tie-breakers. The seventh and final tie-breaker is "net points," or what is sometimes wrongly called "point differential" but is actually a "point difference." (It's a difference, not a differential, because you need only arithmetic, not calculus, to subtract the total number of points a team allowed opponents from the total number of points it scored. But I digress.)

Over the course of an 82-game regular season, teams distinguish themselves from one another in various ways, and accordingly, the point-difference tie-breaker almost never comes into play. So far as I could tell, it was decisive in only two contests in the last five decades (Denver Nuggets over the Bucks in 1978 and the Chicago Bulls over the Miami Heat in 2009). In principle, the chance that a team's point difference might be decisive by season's end gives teams an incentive to run up the score in all regular-season games, but in practice that doesn't happen for two reasons: first, the very slight benefit of postseason positioning based on point difference is not nearly as great as the advantage of resting a team's star players at the end of a game whose outcome is clear; and second, it's not considered sporting to run up the score.

Because the group play stage of the in-season tournament featured only four games per team, the odds of identical records at the top of a group and in the competition for the wild-card in each side of the bracket were quite high. Moreover, "point differential" (sic) is the second tie-breaker (after head-to-head record) for both group winners and wild-card bids the in-season tournament. Accordingly and completely unsurprisingly, teams hoping to advance to the knockout round were incentivized to run up the score. And they did. Needing not only victories but large margins, the Celtics, Knicks, and Cleveland Cavaliers played their starters down to the last second of their games last week, despite being ahead by comfortable margins. It wasn't enough for the Cavs. Five teams in the three Eastern Conference pools finished 3-1, but of these five, only the Celtics and Knicks advanced.

NBA players and coaches raised on the ethos that it's unsporting to run up the score and humiliate your opponent expressed discomfort with the mentality engendered by the decisive role of point difference. The Cavs' Donovan Mitchell, Celtics' Jaylen Brown, and Knicks' Josh Hart each used the word "weird" to describe the way the last group-play games felt. Hart seemingly spoke for many players and fans when he added that once "you just start chasing points . . . it kind of messes with the integrity of the game a little bit."

I agree. We understand individual games in a sports season more or less the way we understand an episode of a multi-episode television series. Each episode contributes to the narrative arc of the season as a whole, but each episode also has its own distinctive and somewhat self-contained story. An episode that merely plays a role in developing a character or story line for later episodes is less satisfying than one in which some smaller plot also unfolds and is at least partly resolved.

So too with sporting events. The game ends decisively (unless it's a nil-nil tie in soccer). Yes, it also plays a role in determining postseason positioning, but that's not the only reason to pay attention. One can watch and enjoy a competitive contest between two teams that have both been eliminated from playoff contention. Hart's point in referring to "the integrity of the game" is that each game has its own integrity that should not be overshadowed by a quest for additional points that have nothing to do with the outcome of that particular game. There's an aesthetic judgment as well as an ethical one in the notion of the game's integrity.

Now note what Hart didn't say but might have said: that the incentives created by the qualifying rules of the in-season tournament make the game somehow not basketball. Whenever leagues change the rules, this kind of objection is available. Because rules changes tend to be minor and gradual, it almost always comes across as hyperbolic, however. We can imagine how a series of rules changes could transform a sport. You gradually widen the basket; you shrink, flatten, and harden the ball; you allow an extra player in front of the goal; you give the players sticks; you replace the wooden surface with ice; and eventually you've transformed basketball into hockey. In practice, nothing like this occurs. Whether the use of the designated hitter or a pitch clock made baseball better or worse is open to debate, but surely neither such innovation rendered it some wholly different sport.

So it is in law as well. Consider the 2001 SCOTUS case of PGA Tour, Inc. v. Martin. Casey Martin sued the PGA Tour under the Americans With Disabilities Act (ADA) because the PGA Tour would not permit him to use a golf cart as a reasonable accommodation to his disability--"a degenerative circulatory disorder that obstruct[ed] the flow of blood from his right leg back to his heart." (Martin, who is currently the golf coach at the University of Oregon, eventually had to have the leg amputated.) The PGA Tour defended refusing to grant an exception from the requirement that golfers walk the course because, it said, that would "fundamentally alter" professional golf and thus fall within a statutory exception to the obligation to accommodate.

The Supreme Court disagreed. Noting that the PGA itself allowed carts on its senior tour and in other settings, the Court said that "the essence of the game has been shot-making–using clubs to cause a ball to progress from the teeing ground to a hole some distance away with as few strokes as possible." The Court acknowledged that even within that essence, some rules changes might fundamentally alter the game. The majority allowed that "changing the diameter of the hole from three to six inches might be such a modification." But allowing Martin to use a cart neither fundamentally altered the game nor conferred an unfair advantage on Martin, in light of his disability.

When I have discussed this case with lawyers who play golf, I have occasionally encountered what strikes me as a superficially plausible argument. They say that walking an 18-hole course is in fact physically challenging enough to affect one's shot-making ability in a way that is loosely analogous to what occurs in the biathlon. It's difficult to hold the rifle steady and hit the target in the course of the heart-rate-increasing exertion of cross-country skiing; permitting some competitors to ride snowmobiles between targets would fundamentally alter the biathlon.

Because I'm neither a golfer (except very occasionally and very badly) nor a biathlete, I can't say how persuasive that analogy is. I'm at least a bit dubious, partly because the majority opinion in PGA Tour was written by Justice Stevens, who was an avid golfer. In any event, my point for now is that the majority opinion proceeded more or less in the same way that sports fans evaluate claims that some rule change fundamentally alters the nature of a game.

Dissenting for himself and Justice Thomas in PGA Tour, Justice Scalia questioned the whole enterprise:

Nowhere is it writ that PGA TOUR golf must be classic “essential” golf. Why cannot the PGA TOUR, if it wishes, promote a new game, with distinctive rules (much as the American League promotes a game of baseball in which the pitcher’s turn at the plate can be taken by a “designated hitter”)? If members of the public do not like the new rules–if they feel that these rules do not truly test the individual’s skill at “real golf” (or the team’s skill at “real baseball”) they can withdraw their patronage. But the rules are the rules. They are (as in all games) entirely arbitrary, and there is no basis on which anyone–not even the Supreme Court of the United States–can pronounce one or another of them to be “nonessential” if the rulemaker (here the PGA TOUR) deems it to be essential.

That objection, if accepted in a majority opinion, would have meant that the ADA has no application to sports or games. A chess league could station all of its tournaments on the second floor of buildings that lack elevators and defeat an ADA claim by a grand master in a wheelchair by including in the rules a requirement that competitors first climb the stairs. And that seems plainly wrong. To be sure, Justice Scalia had a point that there's something a little odd about obligating the PGA Tour to sponsor tournaments of "classic, Platonic golf," but that oddity seems substantially less troubling than the suggestion that sports and games are a zone to which a landmark civil rights law is entirely inapplicable.

Meanwhile, in another context not involving games, Justice Scalia was untroubled by the line of reasoning to which he objected in PGA Tour. Consider the Supreme Court's 2015 decision in Obergefell v. Hodges, holding that the previously recognized fundamental constitutional right to marry included the right to marry someone of the same sex. The state respondents there offered an argument similar to the one that the PGA Tour offered: allowing same-sex couples to marry would fundamentally alter the right to marry, which traditionally was between persons of the opposite sex.

The dissenters accepted that contention. Chief Justice Roberts (joined by Justices Scalia and Thomas, each of whom also wrote separately) wrote that "[t]he fundamental right to marry does not include a right to make a State change its definition of marriage." And that definition--the Platonic essence, if you will--included the restriction to opposite-sex couples.

To be clear, I'm not exactly accusing Justice Scalia of inconsistency. One can think that games are arbitrary but the essentials of fundamental constitutional rights are determined by legal history. The difficulty for this view, however, is that, as Justice Kennedy explained for the Obergefell majority, the institution of marriage had changed substantially since the Founding and the adoption of the Fourteenth Amendment:

Under the centuries-old doctrine of coverture, a married man and woman were treated by the State as a single, male-dominated legal entity [citing Blackstone]. As women gained legal, political, and property rights, and as society began to understand that women have their own equal dignity, the law of coverture was abandoned. These and other developments in the institution of marriage over the past centuries were not mere superficial changes. Rather, they worked deep transformations in its structure, affecting aspects of marriage long viewed by many as essential.

Chief Justice Roberts responded:

If you had asked a person on the street how marriage was defined, no one would ever have said, “Marriage is the union of a man and a woman, where the woman is subject to coverture.” The majority may be right that the “history of marriage is one of both continuity and change,” but the core meaning of marriage has endured.

Really? How does Chief Justice Roberts know that people in earlier generations would not have understood marriage as an essentially patriarchic institution? Are all of the feminist historians who so described it simply wrong?

Meanwhile, note that Justice Kennedy and the majority were not saying that there's nothing essential to the institution of marriage. It's hard to imagine that we would ever sensibly describe two people who occasionally play as a doubles tennis team, or the members of an a cappella singing group, as in a "marriage." The majority's point is that whether to regard some feature of an institution at some point in time as essential to that institution is not simply a matter of what people at any given time think or feel; it is, at least in substantial part, a normative question. The difference between the majority and dissent in Obergefell is that the dissenters are willing to accept the normative judgment that coverture should be abandoned but not (at least so far as the Constitution has a say) that the restriction to opposite-sex partners should be abandoned; the majority thinks that neither coverture nor the restriction to opposite-sex partners is normatively justified and thus that neither is essential to marriage.

Are all such boundary judgments normative? I'm not prepared to go that far. I have no normative or other grounds to oppose doubles tennis or a cappella singing, but I think on social and linguistic grounds that the word marriage doesn't apply to these activities. Likewise, I have no normative or other grounds for opposing the playing of hockey, but I don't think it makes any sense to call hockey basketball (or even to call it "ice basketball" or something like that).

In cases of much less extreme change, however--like incentivizing running up the score, permitting golf carts, or granting legal recognition to same-sex marriages--the question shouldn't be whether the result is "real basketball," "real golf," or "real marriage," but whether the result is appropriate based on the relevant criteria, which are entertaining and fair competition for sports and justice for law.