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Three former National Basketball Association (NBA) referees this week sued the NBA alleging the league fired them for refusing to receive COVID-19 vaccines on religious grounds.
In their complaint, filed Monday in the U.S. District Court for the Southern District of New York, Mark Ayotte, Ken Mauer and Jason Phillips — who have a combined 71 years’ worth of NBA officiating experience — accused the NBA of violating federal civil rights law and New York State and New York City human rights laws.
The lawsuit alleges the “jab or job ultimatum” instituted by the league for the 2021-2022 season — and which was not applicable to players — led to their suspensions for that season.
Then, despite the NBA’s decision to rescind the mandate for the 2022-2023 season, the league fired them.
The plaintiffs are requesting a jury trial, compensatory damages and punitive damages for front and back pay, emotional pain and suffering, reputational damage and attorneys’ fees.
Meanwhile, one prominent athlete who was barred from several high-profile competitions this year due to his unvaccinated status reportedly will be allowed to compete in next year’s edition of one such competition.
Serbian tennis star Novak Djokovic, who previously held the world’s No. 1 ranking, was barred for three years from entering Australia just prior to the 2022 Australian Open because he refused to get the COVID-19 vaccine.
However, Australian authorities this week granted Djokovic a visa so he can compete in the 2023 competition, to be held Jan. 16-29.
Remarking on the news, Mary Holland, president and general counsel of Children’s Health Defense, told The Defender:
“It is welcome news that Australia is allowing in tennis star Novak Djokovic and that referees fired because they are unvaccinated are demanding justice from the NBA.
“Pandemic regulations and policies continue to unravel as their absurdity becomes clear. The glimmer of truth and justice grows brighter by the day.”
In September, Djokovic also missed the U.S. Open in New York City, due to the Biden administration’s continued entry ban for unvaccinated foreigners.
Djokovic has also previously expressed his support for “the freedom to choose what you put in your body.”
Former NBA referees detail discrimination, hostile work environment
According to the complaint filed by the fired NBA referees, the league’s policy held that individuals with “sincere religious beliefs” would be exempted from its vaccine requirement, but “would still have to take precautionary measures,” including adhering to “testing protocols.”
NBA officials instituted the requirement in August 2021, prior to the 2021-2022 season, “through a mixture of collective bargaining agreements” with the National Basketball Referees Association (NBRA), “and administrative fiat.”
As part of this agreement, “the NBA promised to offer medical and religious exemptions for referees,” according to the complaint.
The league’s official policy allowed “those with sincerely held religious objections to the available COVID-19 inoculations” to apply for a religious exemption, ensuring that the mandates were instituted “with little internal resistance” and a “lowered … risk of a legal challenge.”
The NBA granted a religious exemption to “at least one minor league referee” but not the three plaintiffs because, according to the lawsuit, “The NBA’s lawyers, after a pointed interrogation” of the three referees, “adjudged plaintiffs’ beliefs to be illogical, unorthodox, and/or not entirely religious and therefore insufficient to satisfy the ‘high standard’ of a sincerely held religious belief.”
The lawsuit alleges, however, that according to “fundamental hornbook law … an employee’s ‘sincerely held religious belief’ is not held to a ‘high standard’ at all — it is held to an exceedingly low standard requiring only sincerity” and “a belief need not even be religious to merit Title VII protections, so long as it occupies the same métier as a religious conviction.”
Any meeting between an employer and employees to discuss alternative accommodations should focus solely on determining “whether the employee sincerely believes that his sincere beliefs are religious in nature,” or “to have an ‘interactive dialogue’ regarding alternative accommodations.”
Instead, the three referees allege they were subjected to a “hostile interrogation” by league officials and attorneys, in a process that was discriminatory and that “manifested actual hostility toward plaintiffs and toward all others espousing the same particular religious belief.”
This resulted in “arbitrary and capricious [and] sparse, illegitimate, and clearly pretextual reasons” to fire the three referees when they refused to be forced, as “faith-based conscientious objectors” to “adhere to secular norms.” This measure was retaliatory, claims the lawsuit, as evidenced by “the NBA’s failure to reverse its baseless policy during the 2021-2022 season.”
The lawsuit states the plaintiffs “were subjected to discrimination from [the] Defendant based on their religious beliefs,” “suffered adverse action by being terminated from their employment due to their religious beliefs” and that they “would not have been fired but for their failure to comply with the inoculation mandates.”
The lawsuit also alleges the NBA “failed to reasonably accommodate [the] Plaintiffs’ religious beliefs, as required by law,” and that while the league’s mandates were “facially neutral,” they were, in fact, “targeted primarily (perhaps exclusively) at such employees” claiming religious exemptions.
The league’s mandate “also failed to take account of previous infection,” or natural immunity, despite scientific knowledge to the contrary.
The lawsuit also defined the league’s belief that the three referees “posed a greater risk of contracting COVID-19 and of transmitting the virus to coworkers than did their ‘vaccinated’ peers” as a “hygiene heuristic” that “was not substantiated by any reliable scientific evidence.”
According to the complaint, this belief was “debunked” in the months following their suspensions, as “breakthrough cases became increasingly common,” including for the vaccinated, quoting Dr. Anthony Fauci’s statements from January 2022 that the Omicron variant “will, ultimately, find just about everybody.”
“Thus, because the NBA mandate was targeted at individuals who espoused particular religious beliefs, and because it was not narrowly tailored to any legitimate interest, it is discriminatory on its face,” reads the lawsuit.
“In sum,” the lawsuit reads, the “Plaintiffs were persecuted. They were suspended without pay, barred from doing important aspects of their profession, and ultimately terminated from employment.”
NBA’s meetings with the referees likened to an ‘inquisition’
According to the complaint, the NBA’s COVID-19 mandate was damaging to the three referees “because of the NBA’s virtual monopoly on plaintiffs’ present and future career opportunities as professional basketball referees,” which left the referees with “not much of a choice,” choosing to “follow their conscience” at the cost of their termination.
“Ironically,” the lawsuit notes, “because the ‘vaccines’ did not provide immunity to COVID-19 or its variants, 100% compliance came with none of the administrative or financial benefits that NBA decisionmakers originally assumed: during the 2021-2022 season, 65 out of the NBA’s 73 fully vaccinated referees (89%) tested positive for COVID.”
By contrast, “only 6 referees tested positive for COVID-19” during the 2020-2021 season when no mandate was in place. Nevertheless, although the mandate was “nixed” by the league for the 2022-2023 season, the NBA “refuses to reconsider [the] plaintiffs’ terminations.”
Ayotte, “a lifelong Catholic,” expressed his opposition to “so-called fetal therapy” in his Sept. 7, 2021, letter to the NBA requesting a religious exemption. “All three of the currently available COVID-19 vaccines are derived from, manufactured with, tested on, developed with, or otherwise connected to aborted fetal cell lines,” Ayotte said.
On Sept. 16, 2021, Ayotte was advised that the NBA “wished to question him” about his application. The next day, he met “for approximately 30 minutes” with Neal Stern, senior vice president and assistant general counsel, and Melissa Dean, associate vice president and senior associate counsel.
According to the complaint, Stern told Ayotte, “I don’t want you to feel like we are attacking you.” However, “Stern and Dean then proceeded to interrogate Mark on topics ranging from Vatican trivia to how he reconciled his ‘pro-life’ beliefs with the ostensible fact that small, unvaccinated children might die as a result of his failure to take the COVID-19 jab.”
The lawsuit alleges that the NBA’s “gotcha!” moment came when the topic of the Vatican’s Dec. 17, 2020, “Note on the morality of using some anti-COVID-19 vaccines” was raised during the meeting.
According to the note, “It is morally acceptable to receive COVID-19 vaccines that have used cell lines from aborted fetuses” when “ethically irreproachable COVID-19 vaccines are not available.”
However, the lawsuit alleges that the NBA skipped the part of the Vatican’s note that spoke to the Church’s “unequivocal condemnation of the available ‘vaccines’ as a ‘cooperation in evil’” and its declaration “that vaccination is not, as a rule, a moral obligation and that, therefore, it must be voluntary.”
Ayotte’s request for a religious exemption was denied on Oct. 11, 2021, with the “sole basis” of the denial being “Mark’s alleged failure to articulate a proper understanding of the Catholic Church’s current position on vaccination,” leading the NBA to determine that “Ayotte’s asserted religious belief is not sincerely held.”
Ayotte was suspended without pay for retirement benefits for the full 2021-2022 season, and was terminated Sept. 1, 2022.
Mauer is described in the lawsuit as a “gentleman who was raised Catholic” and “who attended church every Sunday ‘even while traveling on the road’ for NBA games.” He said he was “having a difficult time accepting the Pope’s stance in promoting this vaccine,” leading him to join the Baptist Evangelical Eagle Brook megachurch.
In a Sept. 2, 2021, letter to the NBA, Mauer requested an exemption, citing two reasons: that the “vaccines … utilize aborted fetal tissue,” in conflict with his belief that life begins at conception, and that the vaccines are “unnatural and will pollute my body forever with synthetic mRNA.”
Mauer also submitted, on Sept. 7, 2021, a letter from the senior pastor of Eagle Brook Church in which he spoke of “the sincerity of his faith and his request.”
On Sept. 16, 2021, the NBA informed Mauer that it “wished to question him regarding his exemption request,” and that while a representative of the NBRA was present, he was “flatly forbidden from bringing personal legal representation.”
Mauer likened the interview, which took place the next day with Stern and Dean “for approximately 30 minutes,” to an “inquisition” where he was “quizzed” on “diverse topics ranging from legal trivialities to trolley problems to his medical history.”
He also was asked about reconciling the risk COVID-19 poses to unvaccinated children with his “concern about the sanctity of life.”
When Mauer said he took hydroxychloroquine and ivermectin “as a prophylactic measure against COVID,” this was, according to the lawsuit, a “gotcha! moment” for Stern and Dean, because, in their view, the use of those drugs conflicted with Mauer’s statement that vaccination “pollutes” the human body.
According to the lawsuit, “Hydroxychloroquine and Ivermectin were developed before the technology of fetal cell lines was even an option for medical researchers; both are passed naturally and neither contains mRNA.” And while the Johnson & Johnson vaccine “does not rely on synthetic mRNA,” it contains cells from aborted fetuses.
On Oct. 11, 2021, the NBA denied Mauer’s request for an exemption, on the basis that “Mauer’s use of substances [Hydroxychloroquine and Ivermectin] to attempt to immunize himself from COVID-19 indicates that he does not in fact believe solely in divine healing and the healing abilities of the human body.”
He was suspended without pay or retirement benefits for the 2021-2022 season, and terminated Sept. 1, 2022.
Jason Phillips, described in the lawsuit as “a practicing Baptist” who attends Chapel Creek Fellowship, submitted his request for a religious exemption on Sept. 21, 2021, writing “I cannot in good conscience use any product that takes its origin in abortion.”
He also submitted a Sept. 10, 2021, letter from Pastor Sonny Grissom of his former congregation, the Greenwood Baptist Church, stating “We object to any use of aborted fetuses for these vaccines … we do not support the research, production or receiving of any COVID-19 vaccine that uses stem cells from aborted fetuses.”
As with the other plaintiffs, he was called in to a meeting with Stern and Dean, which took place on Sept. 27, 2021, without legal counsel present. Phillips said he “expected a conversation … centering on ways to eliminate or minimize any health and safety concerns management might have regarding his unvaccinated status.”
Instead, according to the lawsuit, “his religious statement and personal religious beliefs were micro-analyzed while the NBA’s top attorneys impugned his sincerity and integrity,” while refusing “to engage Jason’s attempts to bring up the subject” of mitigating health and safety concerns.
Phillips was also asked to “sign a release document waiving his right to sue for discrimination.”
On Apr. 4, 2022, the league informed Phillips that he would be terminated effective April 28, 2022, but was not told whether his application for a religious exemption had been denied or even processed. In an April 14, 2022, follow-up, officials told him his exemption request was denied without explaining why.
Part of the denial rested on the NBA’s claim that Phillips said he would have concerns about the vaccines even if they did not contain fetal stem cells, leading the NBA to “not find a sincerely held religious belief.” However, the lawsuit claims Phillips “made no such statements.”
Ultimately, Phillips was terminated on May 9, 2022.
Notably, the NBA’s mandate did not apply to its players, although some unvaccinated players were impacted by local mandates implemented in cities home to NBA teams.
For instance, Kyrie Irving of the Brooklyn Nets missed most home games during the 2021-2022 season due to New York City’s employment vaccine mandate. He returned, however, when New York City carved out an exception to its mandate that applied solely to athletes and performers.