# Richardson v. The National Basketball Association

> District Court, S.D. New York · August 18, 2025

URL: https://www.frixlaw.com/law-library/cases/11124572

## Case

- **Court:** District Court, S.D. New York
- **Decided:** August 18, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
--------------------------------------- X
:
LEROY JEROME RICHARDSON, III, :
:
Plaintiff, : 23cv6926 (DLC)
-v- :
: OPINION AND
THE NATIONAL BASKETBALL ASSOCIATION, : ORDER
et al., :
:
Defendants. :
:
--------------------------------------- X
APPEARANCES:
For plaintiff Leroy Jerome Richardson, III:
Steven Michael Warshawsky
Law Firm of Steven M. Warshawsky
118 North Bedford Road, Suite 100
Mount Kisco, NY 10549
Raymond Lee Hogge, Jr.
Hogge Law
500 E. Plume Street, Suite 800
Norfolk, VA 23510
For defendants The National Basketball Association and NBA
Services Corporation:
Guy Brenner
Proskauer Rose LLP
1001 Pennsylvania Ave NW, Suite 400 South
Washington, DC 20004
Elise Michelle Bloom
Jordan Benjamin Glassberg
Michelle A. Annese
Proskauer Rose LLP
11 Times Square
New York, NY 10036
DENISE COTE, District Judge:
Plaintiff Leroy Jerome Richardson, III, a basketball
referee, has sued his former employer, NBA Services Corp. and
the National Basketball Association (together, the “NBA”) for a
violation of Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e et seq. (“Title VII”). The defendants denied his

request for a religious exemption from its requirement that all
NBA referees be vaccinated during the 2021-22 season against
COVID-19. The parties have cross moved for summary judgment.
For the following reasons, the defendants’ motion is granted in
part and the plaintiff’s motion is denied.
Background
The following facts are taken from the parties’ submissions

and are undisputed unless otherwise noted. Only those facts
necessary to decide the parties’ motions are stated.
In brief, the National Basketball Referee Association
(“NBRA”) and the NBA executed an agreement on August 28, 2021
that required NBA referees to be vaccinated against COVID-19.
The agreement provided an exception for referees with a
sincerely held religious objection and created a Vaccination
Exemption Board (“VEB”) to which referees could appeal should
the NBA deny a referee’s exemption request. On September 4,
2021, Richardson submitted a request for an exemption to the

2
COVID-19 vaccine requirement, which the NBA denied on October
11. The VEB affirmed the NBA’s decision on February 8, 2022.
Richardson was not permitted to serve as a referee during the
2021-22 season and his employment was terminated. Richardson
filed this Title VII suit on April 13, 2023. A description of
the documents and events critical to this lawsuit follows.

I. NBRA Collective Bargaining Agreement
On August 26, 2015, the NBA and the NBRA entered into a
collective bargaining agreement (“CBA”). Article II, § 4 of the
CBA contains a “Non-Discrimination Clause” (the “Non-
Discrimination Clause”) forbidding discrimination on the bases
of religion and other protected characteristics. The Non-
Discrimination Clause includes an election-of-remedies provision
explaining that a referee may bring a Title VII claim either to
arbitration or to a court:
At the election of the grievant, any claims of such
discrimination, including, but not limited to, a claim
made pursuant to Title VII of the Civil Rights Act
(“Title VII”), . . . may be subject to the grievance
and arbitration procedures set forth in Article XV of
[the CBA]; provided, however, that if the grievant
elects to pursue his/her claim (a) through the
grievance and arbitration procedure, when the
grievance is referred to arbitration in accordance
with Article XV . . . the grievant will be deemed to
have waived his/her right to pursue all discrimination
claims arising out of the same transaction or facts
underlying the grievance in any forum other than in
arbitration (and will so confirm such waiver by
signing the form annexed hereto as Exhibit B and
3
providing such form to the NBA’s General Counsel
within five (5) days of the waiver) . . . .

Article XV of the CBA contains the CBA’s grievance and
arbitration procedures. It explains that a “grievance” is any
dispute involving the “interpretation or application of any
provision” of the CBA, excluding certain carve outs such as
disputes involving referee discipline. Disputes referred to
arbitration are decided by a single arbitrator mutually agreed
upon by the parties. The arbitrator’s award must be in writing,
and constitutes a full and final disposition of the grievance,
binding upon the NBA, the NBRA, and any referees involved.
II. COVID-19 Pandemic and the August 2021 COVID Agreement
COVID-19 is a novel virus for which the World Health
Organization declared a global pandemic in March 2020. By April
2020, the United States had become the global leader in reported
deaths due to COVID-19. To date, the COVID-19 pandemic has
caused over 7 million deaths.
In late 2020 into early 2021, two mRNA vaccines (Pfizer-
BioNTech and Moderna) and an adenoviral vector vaccine
(Janssen/Johnson & Johnson) (the “COVID-19 vaccines”) became
available to the public in the United States. Published data
compiled from state and local health agencies consistently
demonstrated that the COVID-19 vaccines proved effective in
reducing COVID-19 infection rates and in reducing the risk of

4
severe illness, including death. For instance, in October 2021,
widely published data showed that unvaccinated persons had five
times the rate of infection compared with fully vaccinated
people.
Following the emergence of the COVID-19 virus, the NBA
finished the 2019-20 season later than usual. As a result, it

began its 2020-21 season in December, rather than October 2020,
and played a shortened season of 72 games. During that
abbreviated season, which ran through July 2021, the NBA
postponed 31 games due to COVID-19-related exposure events.
On or around August 28, 2021, the NBA and the NBRA executed
a seven-page Letter of Agreement Amending CBA For Duration of
2021-22 Season (the “COVID Agreement”). It provides that
“[e]xcept to the extent expressly modified by [the COVID
Agreement], the terms of the CBA will remain in full force and
effect.”
The COVID Agreement required all referees to “be fully

vaccinated with a CDC-approved vaccination against COVID-19”
including “any booster shot(s) recommended by the NBA’s
physician advisors” in order to “enter any league office or team
facility.” This was done “[t]o best protect the health of
referees and other game participants, and to minimize the
likelihood of game postponements.” A referee who refused to be

5
vaccinated would be suspended without pay or medical benefits
for the period of up to one year, and if the referee was not
vaccinated by September 1, 2022, their employment with the NBA
would be terminated “without cause.”
The COVID Agreement provided for exceptions from the
vaccine requirement in cases of “an approved health or sincerely

held religious exemption.” An individual who received such an
exemption would be required to submit to COVID-19 testing “at
least daily and at least twice on game days” and would also have
to wear a face mask at league offices and team facilities, other
than during on-court basketball activities or while showering,
eating, or drinking. There were also restrictions on the
activities in which unvaccinated referees could engage, even
while at home, and public venues they could enter.
The COVID Agreement did not reference Article XV of the
CBA’s grievance and arbitration procedure. Rather, it explained
that in the event the NBA denied a referee’s exemption request,

the referee “may appeal the exemption denial” within seven
calendar days to the VEB. The VEB consisted of one Board member
selected by the NBRA, one Board member selected by the NBA, and
a third “jointly selected” Board member. The COVID Agreement
authorized the VEB “to review requests for exemptions solely due
to medical reasons or sincerely held religious belief(s),

6
practice(s), or observance.” It states that “[d]ecisions by the
VEB addressing these issues will be final and binding.”
Finally, under the COVID Agreement, the NBRA and the NBA
agreed to “confer periodically to reassess the protocols and
appropriate protections” for referees. This would be done “in
light of facts that would include,” but would not be limited to:

COVID-19 case and vaccination rates within the NBA population
and team markets; vaccine efficacy against any new COVID-19
variants; the percentage of game participants who are either
fully vaccinated or recently recovered from a prior infection;
any actual or suspected transmission among referees; health and
safety protocols applicable to other game participants; and the
potential for modified protocols to reduce independent
infections and/or spread of COVID-19 among referees.
III. Richardson’s Exemption Request and Denial
After the COVID Agreement was executed, the NBRA Executive
Board emailed NBA referees to explain that they should submit
any application for an exemption to the NBA’s COVID-19

vaccination mandate by email to Neal Stern, NBA Senior Vice
President and Assistant General Counsel. On September 4, 2021,
Richardson emailed Stern to apply for a religious exemption.
Richardson’s request included three documents: a “Vaccine
Exemption Form,” dated September 4, 2021; a letter from Dr.

7
Roderick Hawthorne, Senior Pastor at Truth Transformation
Ministries in Portsmouth, Virginia, dated September 1, 2021; and
a letter from Bishop Marcus D. Brown, Sr., a pastor at
Tabernacle Church in Portsmouth, Virginia, dated September 3,
2021.
Stern forwarded Richardson’s three documents to Byron

Spruell, NBA President of League Operations, who was responsible
for evaluating NBA referees’ religious exemption requests.
Spruell requested that Stern and Melissa Dean Milne, then-NBA
Associate Vice President and Senior Associate Counsel, interview
Richardson to gain additional information, which they did on
September 17.
After he received Stern’s summary of the September 17
interview, Spruell determined that Richardson’s exemption
request was not based on a sincerely held religious belief.
Accordingly, on October 11, Spruell emailed Richardson a
memorandum denying his exemption request.

Richardson appealed the NBA’s decision to the VEB that same
day.1 On December 13, Richardson and the NBA participated in a
full day hearing before the VEB. Richardson was represented by

1 The NBA selected a retired Partner of Skadden, Arps, Slate,
Meagher & Flom LLP, to serve as a member of the VEB, and the
NBRA selected a current NBA referee and former attorney. The
NBA and NBRA agreed upon a past President of the National
Academy of Arbitrators as the third member of the VEB.
8
counsel to the NBRA. Following the December 13 hearing, the
parties submitted briefs and reply briefs.
The VEB panel issued a decision affirming the NBA’s denial
of Richardson’s exemption request on February 8, 2022. One
panel member dissented. The majority opinion concluded that
Richardson’s beliefs regarding the COVID-19 vaccine did not

qualify as religious beliefs entitled to protection under Title
VII.
Richardson did not work as an NBA referee for the 2021-22
season or seek any other employment. In a letter dated
September 1, 2022, the NBA terminated Richardson’s employment as
an NBA referee pursuant to both the COVID Agreement and Article
X, § 5 of the CBA, which provides for termination of employment
“without good cause.”
IV. Procedural History
Richardson initiated this action on April 13, 2023. The
First Amended Complaint (“FAC”) pleads a single claim for
violation of Title VII. It seeks, among other things, back pay,

front pay, reinstatement, and costs.
Following the completion of discovery, the parties filed
cross-motions for summary judgment, and the NBA moved to exclude
the opinions and testimony of the plaintiff’s expert, Dr. Harvey

9
Risch. The three motions became fully submitted on April 22,
2025.

Discussion
Summary judgment is appropriate when “the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). Material facts are those facts that “might
affect the outcome of the suit under the governing law.” Choi
v. Tower Rsch. Cap., LLC, 2 F.4th 10, 16 (2d Cir. 2021)
(citation omitted). “[S]ummary judgment must be rejected if the
evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” Indemn. Ins. Co. of N. Am. v.
Unitrans Int’l Corp., 98 F.4th 73, 77 (2d Cir. 2024) (citation

omitted).
The court’s role with respect to a summary judgment motion
“is not to resolve disputed questions of fact but solely to
determine whether, as to any material fact, there is a genuine
issue to be tried.” Moll v. Telesector Res. Grp., Inc., 94
F.4th 218, 227 (2d Cir. 2024) (citation omitted). The court
must “review the record taken as a whole,” and “may not make
credibility determinations or weigh the evidence.” Id.
(citation omitted).

10
I. Waiver of Statutory Claims
As a threshold matter, the NBA contends that the COVID
Agreement is an enforceable arbitration agreement and that
Richardson’s voluntary appeal to the VEB bars him from bringing
his Title VII claim in federal court. This argument fails.
Where a valid arbitration agreement exists, it must be
rigorously enforced according to its terms. Am. Exp. Co. v.

Italian Colors Rest., 570 U.S. 228, 233 (2013). “As in any
contractual negotiation, a union may agree to the inclusion of
an arbitration provision in a collective-bargaining agreement in
return for other concessions from the employer.” 14 Penn Plaza
LLC v. Pyett, 556 U.S. 247, 257 (2009). Where a collective
bargaining agreement includes an arbitration provision, the
“arbitrator’s power is both derived from, and limited by, the
collective-bargaining agreement,” and the arbitrator’s “task is
limited to construing the meaning of the collective-bargaining
agreement so as to effectuate the collective intent of the
parties.” Id. at 263 (citation omitted). This follows more

generally from the proposition that, in all circumstances,
“arbitrators wield only the authority they are given” by the
parties’ private agreement to arbitrate. Lamps Plus, Inc. v.
Varela, 587 U.S. 176, 184 (2019); see also Benihana, Inc. v.
Benihana of Tokyo, LLC, 784 F.3d 887, 897 (2d Cir. 2015).

11
Parties may thus “shape” such agreements “by specifying with
whom they will arbitrate, the issues subject to arbitration, the
rules by which they will arbitrate, and the arbitrators who will
resolve their disputes.” Varela, 587 U.S. at 184.
The preclusive effect of an arbitration award rendered
pursuant to a collective bargaining agreement thus depends on

the scope of the parties’ agreement. If a collective bargaining
agreement grants the arbitrator authority to resolve “only
questions of contractual rights, his decision could not prevent
the employee from bringing the Title VII claim in federal court
regardless of whether certain contractual rights are similar to,
or duplicative of, the substantive rights secured by Title VII.”
Pyett, 556 U.S. at 262 (citation omitted). This is true whether
the “legal theory of preclusion advanced by the employer” rests
on “the doctrines of election of remedies” or is “recast”
instead as resting on “the doctrine of equitable estoppel and on
themes of res judicata and collateral estoppel.” Id. An

arbitration award may not preclude subsequent statutory actions
unless the agreement to arbitrate “expressly covers
both statutory and contractual discrimination.” Id. at 264.
Here, the parties dispute whether the COVID Agreement
barred Richardson from bringing a Title VII claim in court after
he elected to appeal to the VEB. It did not. It did not

12
contain a sufficiently clear waiver of the right of NBA referees
to pursue statutory claims in federal court. Consequently,
Richardson’s lawsuit is not barred by the availability of an
appeal to the VEB or by his decision to appeal to the VEB.
While the COVID Agreement offered referees the opportunity
to appeal to the VEB, it did not warn them that such an appeal

would deprive them of the right to litigate a claim against the
NBA much less a federal statutory claim. For instance, it did
not contain the detailed description that appears in the CBA of
the election of remedies available to referees and the
consequences of electing the grievance and arbitration
procedure, including the waiver of the right to pursue statutory
claims in “any forum other than in arbitration.” Nor did the
COVID Agreement refer to or incorporate by reference the CBA’s
election-of-remedies provision.
The NBA advances two arguments. First, it notes that the
COVID Agreement expressly amended the CBA and did not modify the

CBA’s election-of-remedies provision. While that is true, the
COVID Agreement does not expressly incorporate either that
election-of-remedies provision or the CBA’s grievance and
arbitration procedure. It created a separate process to respond
to the exigencies presented by the COVID-19 pandemic. The CBA’s
election-of-remedies provision applied explicitly to the CBA’s

13
grievance and arbitration procedure. Nothing in the COVID
Agreement served to give notice that the parties had agreed that
the CBA’s election-of-remedies provision would apply as well to
the COVID Agreement’s separate process.
Second, the NBA argues that Richardson’s appeal to the VEB
raises the “same” claim as the one he advances here, citing case

law articulating res judicata principles. See Sikorsky v. City
of Newburgh, New York, 136 F.4th 56, 62 (2d Cir. 2025). The
COVID Agreement recognized an exemption for “sincerely held
religious belief(s), practice(s), or observance,” which tracks
the standard formulation for religious accommodations recognized
by Title VII. See 42 U.S.C.A. § 2000e(j); see also Gardner-
Alfred v. Fed. Rsrv. Bank of New York, 143 F.4th 51, 63 (2d Cir.
2025). The VEB, moreover, cited and relied on Title VII
jurisprudence in reaching its decision. Thus, there is a
substantial argument that Richardson has already had a full and
fair opportunity to litigate, under Title VII standards, whether

his reasons for refusing vaccination were sincerely held
religious beliefs.
But, as the Court of Appeals recently observed, an
arbitration agreement “does not alter or abridge substantive
rights; it merely changes how those rights will be processed.”
Flores v. New York Football Giants, Inc., 2025 WL 2349199, at *5

14
(2d Cir. Aug. 14, 2025) (citation omitted). The COVID Agreement
would have had to say more than it did to reflect an agreement
among the parties that statutory rights were waived when a
referee chose to pursue an appeal to the VEB. It would have
been entirely reasonable to understand the COVID Agreement as a
well-intentioned process to provide both the NBA and referees

with a fair process to resolve vaccination disputes quickly
without affecting any party’s substantive rights.
II. Title VII
Title VII makes it illegal for employers to “discriminate
against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such
individual’s . . . religion.” 42 U.S.C. § 2000e–2(a)(1).
Employers are required to accommodate an employee’s religious
observances, practices, and beliefs unless doing so would
constitute an “undue hardship on the conduct of the employer’s
business.” 42 U.S.C. § 2000e(j).
The NBA moves for summary judgment on two grounds. It

first contends that summary judgment is appropriate because
Richardson’s exemption request was not based on a sincerely held
religious belief. It also seeks summary judgment based on the
assertion that an accommodation of an unvaccinated referee would
have constituted an undue hardship. Its motion regarding the

15
sincerity of Richardson’s religious belief is denied; its motion
regarding undue hardship is largely granted.
A. Sincerity of Richardson’s Beliefs
A plaintiff bringing a “religious discrimination claim”
under Title VII must first establish a prima facie case by
showing that “(1) she held a bona fide religious belief
conflicting with an employment requirement; (2) she informed her

employer of this belief; and (3) she was disciplined for failure
to comply with the conflicting employment requirement.” Russo
v. Patchogue-Medford Sch. Dist., 129 F.4th 182, 185–86 (2d Cir.
2025) (citation omitted). A bona fide religious belief is one
that is “sincerely held.” Gardner-Alfred, 143 F.4th at 63.
The “sincerity analysis seeks to determine an adherent’s
good faith” in the expression of his religious beliefs, and to
“differentiate between those beliefs that are held as a matter
of conscience and those that are animated by motives of
deception and fraud.” Id. (citation omitted). A religious
adherent may hold both “religious” and “secular objections” to

an employer’s policy. Id. What inferences to draw from the
presence of both religious and secular objections -- i.e.,
whether or not a plaintiff is “fraudulently hiding secular
interests behind a veil of religious doctrine” -- is ordinarily
the job of the jury. Id. At 63-64 (citation omitted).

16
Moreover, evidence that a plaintiff may have acted
inconsistently with his religious beliefs does not necessarily
render the plaintiff’s beliefs insincere. Id. at 64. In most
cases it is for a jury to determine whether such impeachment
evidence discredits the plaintiff’s testimony. Id.
There exists a genuine dispute of material fact as to

whether Richardson’s espoused religious beliefs are sincerely
held. Richardson affirms that his religious beliefs prevent him
from being vaccinated. In support, he attached letters from two
religious leaders in Portsmouth, Virginia. Dr. Hawthorne had
provided personal and spiritual guidance and counseling to
Richardson and his wife for “many years.” And Bishop Brown is
the leader of the church where Richardson and his wife attend
services. Dr. Hawthorne’s letter explained that Richardson’s
objection was “consistent with biblical scripture, tenets, and
Christian ideology,” stating that the vaccine mandate and
repercussions for failure to adhere to the mandate were “akin to

biblical scripture in Revelations 13:16-18 which describes the
requirement to receive the Mark of the Beast in order to buy or
sell to survive.”
The NBA contends that Richardson’s objection to vaccination
is fundamentally secular and political. It argues that the
letters from the two religious leaders “at their core

17
articulated secular concerns about the vaccine,” such as
objections to “government mandates as a means of accomplishing
further compliance by citizens in the future.” It points as
well to text messages Richardson sent in which he expressed
secular reasons for not receiving the COVID-19 vaccine. It also
seeks deference to the decision from the VEB, as highly

probative.
This dispute regarding the sincerity of Richardson’s
religious beliefs is not susceptible to summary judgment. It is
for the jury to resolve. See Gardner-Alfred, 143 F.4th at 64-
65.
B. Undue Hardship
Next, the NBA argues that permitting Richardson to work
unvaccinated would have posed an undue hardship on the NBA. The
NBA has shown that there is no genuine dispute of material fact
regarding that undue hardship from at least early December 2021.
If an employee establishes a prima facie case of religious
discrimination, the employer must offer a reasonable

accommodation, “unless doing so would cause the employer to
suffer an undue hardship.” Russo, 129 F.4th 186 (citation
omitted). A proposed accommodation “constitutes an undue
hardship when it poses a burden that is substantial in the
overall context of an employer’s business.” Id. (citation

18
omitted). The undue hardship inquiry is “fact-specific” and it
“takes into account all relevant factors in the case at hand,
including the particular accommodations at issue and their
practical impact in light of the nature, size and operating cost
of an employer.” Groff v. DeJoy, 600 U.S. 447, 468, 470-71
(2023) (citation omitted). Moreover, “[b]ecause the ‘conduct of

[a] business’ plainly includes the management and performance of
the business's employees, undue hardship on the conduct of a
business may include undue hardship on the business's
employees.” Id. at 475 (Sotomayor, J., concurring); see also
Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 79-81
(1977) (depriving employees of bargained-for seniority rights
constitutes undue hardship).
The NBA has shown that vaccination of its referees against
COVID-19 was necessary to protect the health of referees and
other game participants and to minimize the likelihood of game
postponements. Undisputed testimony and other evidence show

that the NBA reasonably believed that the Omicron variant, which
was identified in the Fall of 2021, increased the risk of
infection with and transmission of COVID-19, and thereby
increased the risk of substantial disruption to the NBA’s
business. Accordingly, it required all of its referees to be
vaccinated against the virus as the most effective means of

19
protecting the health of everyone and the continuity of its
operations.
It is undisputed that NBA referees travel by commercial
flight to basketball games throughout the United States and
Canada. While in a given city, NBA referees typically stay in a
hotel and use rental cars, rideshare apps, or other car services

to travel to the indoor arena at which NBA games are played.
NBA games last hours and require referees to interact closely
with other referees and with NBA players and coaches. It is
additionally undisputed that NBA referees cannot wear masks
while officiating basketball games.
In addition to their on-court duties, NBA referees also
work occasionally in the “NBA Replay Center.” The NBA Replay
Center is an enclosed indoor space where referees and other NBA
staff work during basketball games to review, by video, calls
made by referees who are officiating on the court.
Before the emergence of the Omicron variant, the NBA had

executed the August 28, 2021 COVID Agreement. That Agreement
allowed referees to apply for an exemption from the NBA’s policy
that all referees much be vaccinated against COVID-19. Stern --
the NBA’s Senior Vice President and Assistant General Counsel --
explained that, from then until at least “early November” 2021,

20
“a referee would have been able to continue their employment if
they were granted an exemption” to the NBA’s vaccine mandate.
Later that Fall, however, the situation changed. On
November 30, 2021, the United States designated Omicron as a
“Variant of Concern,” and on December 1, 2021 the first
confirmed case of Omicron was identified in the United States.

It was more infectious than previous variants and was associated
with an increase in reported COVID-19 infections in the United
States throughout 2022.
The NBA’s medical advisors consistently reviewed and
relied upon scientific research and literature concerning COVID-
19, as well as recommendations from government agencies. In
both 2021 and 2022, the NBA understood that the COVID-19
vaccines proved effective in reducing infection rates. In
October 2021, published data from state and local governmental
agencies demonstrated that unvaccinated individuals had five
times the rate of COVID-19 infection compared to fully

vaccinated people. That differential remained significant.
Data published in September 2022 showed that unvaccinated
individuals had three times the rate of COVID-19 infection
compared to fully vaccinated people. In 2021, data also showed
that vaccinated individuals who developed COVID-19 also had, on
average, reduced viral loads and were potentially less likely to

21
spread the infection. Considering such data, government
agencies, including the World Health Organization and the
Centers for Disease Control (“CDC”), communicated during this
time that vaccination decreased the likelihood that an
individual would pass on the virus to others. The NBA
understood as well that alternative prevention policies, such as

testing, did not prove as effective at preventing COVID-19
transmission when compared with vaccination.
Relatedly, it was reported during this time that vaccines
reduced the risk of severe illness from COVID-19 and death. In
October 2021, data from state and local government agencies
showed that the death rate for unvaccinated individuals was
sixteen times higher than the death rate for vaccinated
individuals. And in September 2022, the death rate for
unvaccinated individuals was five times higher than the death
rate for vaccinated individuals.
The NBA’s experience with COVID-19 reflected the

difficulties of managing a highly transmissible virus in a sport
that is played indoors. During the 2020-21 season, the NBA had
postponed 31 games due to COVID-19-related exposure events.
Postponing and rescheduling NBA games imposes increased travel
and hotel costs, can disappoint fans who may not be able to
attend or watch a rescheduled game, and can reduce media revenue

22
if a game is rescheduled to a night where a game cannot be
nationally televised. It can also result in games played on
back-to-back nights, resulting in less opportunity for players
to rest and recover from game play, risking both player injury
and lower quality play.
By “mid to late November” or “early December,” Stern’s

understanding based on the advice of the NBA’s medical advisors
was that “it was not safe for an unvaccinated referee,
regardless of the reason they were unvaccinated, to work.” The
NBA acted on this understanding. During the 2021-22 season
there was no NBA referee with an approved medical or religious
exemption to the COVID vaccine requirement, but there was a
minor league referee to whom a religious exemption had been
granted.2 On December 22, 2021, the NBA Services Corp. informed
that NBA minor league referee that, following consultation with
medical experts and notwithstanding previously agreed to health
and safety protocols, “there is no manner for you to safely

participate in the 2021-22 [season]” without vaccination against
COVID-19.
The NBA continued its vaccine mandate following the
conclusion of the 2021-22 season. On June 10, 2022, Dr. Sims

2 The “G League” is minor league of the NBA, which the NBA
Services Corp. also operates.
23
explained in writing that the NBA’s policy “remains that
officials must be fully vaccinated” to “work on the court.” He
summarized the NBA’s view that “[t]esting, while effective at
detecting cases, is not preventative and does not always capture
cases before transmission has occurred.” Accordingly, Dr. Sims
stated that, based on “guidance from the CDC and [the NBA’s]

experts in infection disease and epidemiology”, the NBA had
concluded that the minor league referee who had previously
received an exemption to the vaccine requirement “should not be
allowed to work Summer League games unless he is fully
vaccinated.”
Thus, by no later than early December 2021, the NBA
understood, based on scientific evidence and medical advice
regarding the COVID-19 pandemic, that permitting unvaccinated
referees to work would increase the likelihood of COVID-19
infection and transmission among players and other staff and the
risk of game cancellations and postponements. This is a risk

that the NBA decided it could not incur. It constitutes an
undue hardship.
Richardson advances several arguments resisting the entry
of summary judgment for the NBA on the basis of undue hardship.
None is persuasive.

24
First, Richardson contends that the NBA cannot establish
undue hardship because, in crafting the COVID Agreement, the NBA
“pre-negotiated” the accommodations for referees with approved
religious exemptions. The NBA was not bound forever by the
accommodation analysis it conducted in August 2021. The undue
hardship inquiry is fact-specific and requires an assessment of

the burden in the “overall context of an employer’s business.”
Groff, 600 U.S. at 468. That context may change. The COVID
Agreement itself explicitly recognized the unknown evolution of
the pandemic. It acknowledged that the NBA and NBRA would
“confer periodically to reassess the protocols and appropriate
protections” for referees in light of, among other things,
COVID-19 infection rates, vaccine efficacy against new COVID-19
variants, and the number of game participants who were fully
vaccinated. Accordingly, the NBA was bound neither by law nor
the Agreement to its decision in August 2021 that a referee with
an approved exemption from vaccination would be allowed to

continue his employment, subject to prescribed health and safety
protocols. It was entitled, as it did, to reevaluate as the
pandemic evolved whether it could continue to accommodate a
referee with a bona fide religious exemption from vaccination
without incurring an undue hardship.

25
Richardson speculates that the COVID Agreement’s health and
safety protocols may have remained in effect for the duration of
the 2021-22 occasion since there is no written revocation of the
Agreement. He has provided no evidence to support that
speculation. The NBA had no occasion to formally withdraw the
Agreement because it had granted no medical or religious

exemptions to NBA referees. The undisputed testimony from its
executives and its treatment of the minor league referee
establish that the NBA had changed its vaccine accommodation
policy no later than early December 2021.
Richardson next argues that the COVID Agreement’s protocols
were state of the art and “equally safe” to vaccination. In
making this argument, he relies on the testimony provided by Dr.
Michelle McDade, an expert for the plaintiff. But it is
undisputed that in 2021 and 2022 the NBA’s medical advisors were
not telling the NBA that the protocols were “equally safe.”
Their advice was that vaccination was more effective than

testing both in preventing infection and in reducing the spread
of the virus. And as Dr. McDade and Richardson admitted, COVID-
19 testing only provides a reading in the moment the test is
taken and can be compromised by human error. This increases the
likelihood, even if only on the margins, that a referee could
test negative before a game but be infectious during the game.

26
Richardson contends that the NBA cannot establish that the
accommodation of an unvaccinated referee would have caused an
undue hardship unless it can quantify the precise risk
associated with permitting unvaccinated referees to work.
Richardson identifies no legal authority imposing this
requirement on a business and this Court has found none. Such a

requirement is particularly inappropriate where, as here, the
burden at issue concerns significant risk to the health of
employees and others and a substantial cost to an entire
business enterprise.
III. Dr. Risch’s Testimony
While Richardson’s memorandum in opposition to the motion
for summary judgment does not rely on the report provided by his
expert Dr. Harvey Risch (“Report”), the plaintiff does rely on
the Report in its counter-statement to the NBA’s Rule 56.1
Statement. Dr. Risch’s Report was tendered by Richardson as
relevant to the issue of undue hardship and the NBA has moved to
exclude the Report. For the reasons that follow, the NBA’s

motion is granted.
Federal Rule of Evidence 702 governs the admission of
expert testimony in federal court. The Supreme Court has
instructed that the district court has a “gatekeeping” function
under Rule 702: it is charged with the “task of ensuring that an

27
expert's testimony both rests on a reliable foundation and is
relevant to the task at hand.” Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 597 (1993).
Testimony is relevant where it has “any tendency to make
the existence of any fact that is of consequence to the
determination of the action more probable or less probable than

it would be without the evidence.” Amorgianos v. Nat'l R.R.
Passenger Corp., 303 F.3d 256, 265 (2d Cir. 2002) (citation
omitted). And to determine whether testimony has a sufficiently
reliable foundation to be admissible at trial, a court must
consider the “indicia of reliability identified in [Rule]
702.” Clerveaux v. East Ramapo Central School District, 984
F.3d 213, 233 (2d Cir. 2021) (citation omitted).
Rule 702 allows a “witness who is qualified as an expert by
knowledge, skill, experience, training, or education” to
testify, “in the form of an opinion or otherwise if the
proponent demonstrates to the court that it is more likely than

not that”:
(a) the expert's scientific, technical, or other
specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in
issue;
(b) the testimony is based on sufficient facts or
data;
(c) the testimony is the product of reliable
principles and methods; and
28
(d) the expert's opinion reflects a reliable
application of the principles and methods to the facts
of the case.

Fed. R. Evid. 702.
In addition to those indicia of reliability set forth in
Rule 702, a trial court may consider the criteria enumerated in
Daubert, “some or all of which might prove helpful in
determining the reliability of a particular scientific theory or
technique.” Clerveaux, 984 F.3d at 233 (citation omitted). The
Daubert factors are: (1) whether the methodology or theory has
been or can be tested; (2) whether the methodology or theory has
been subjected to peer review and publication; (3) the
methodology's error rate and the existence and maintenance of
standards controlling the technique's operation; and (4) whether
the methodology or technique has gained general acceptance in
the relevant scientific community. Daubert, 509 U.S. at 593-94,
“[W]hile a court need not consider the Daubert factors, it does
not abuse its discretion in doing so.” In re Mirena IUS
Levonorgestrel-Related Prods. Liab. Litig. (No. II), 982 F.3d
113, 124 (2d Cir. 2020) (“Mirena II”). Although “Rule 702 sets
forth specific criteria for the district court's consideration,
the Daubert inquiry is fluid and will necessarily vary from case
to case.” Id. at 123 (citation omitted).

29
“[I]n deciding whether a step in an expert’s analysis is
unreliable, the district court should undertake a rigorous
examination of the facts on which the expert relies, the method
by which the expert draws an opinion from those facts, and how
the expert applies the facts and methods to the case at hand.”
Id. (citation omitted). Ultimately, a court must “make certain

that an expert, whether basing testimony upon professional
studies or personal experience, employs in the courtroom the
same level of intellectual rigor that characterizes the practice
of an expert in the relevant field.” Kumho Tire Company, Ltd.
v. Carmichael, 526 U.S. 137, 152 (1999).
Dr. Risch is a Professor Emeritus of Epidemiology at Yale
School of Public Health. The majority of his career has focused
on cancer and its causation. In May 2020, he published a paper
on early treatment of high-risk COVID-19 outpatients. Since
that time, he has co-authored other papers on COVID-19, which he
describes as focusing on early outpatient management.

At a general level, the Report is critical of the
government’s management of the COVID-19 pandemic. Dr. Risch
believes that the spread of infection is inevitable and post-
infection natural immunity is a public good. He believes that
the pandemic should not have been managed by tracking infection
but rather by tracking deaths, hospitalization, and the

30
incidence of serious long-term syndromes caused by infection.
Accordingly, he asserts, governments, businesses and schools
should not have mandated vaccination to prevent the spread of
infection.
Dr. Risch defines the question at hand as whether vaccine
mandates actually reduce transmission of COVID-19 more

effectively than a policy of recommending vaccination. He
observes that CDC data showed that vaccination reduced infection
risk in the first half of 2021, but also that it was
increasingly failing to do so by the second half of 2021. He
points out that the CDC Director publicly confirmed in August of
2021 that persons who receive a COVID-19 vaccine and are
asymptomatic can still pass on the virus to others. Thus, while
vaccination may reduce the severity of symptoms, Dr. Risch
opines, it does not prevent transmission. Indeed, 87% of
Americans eventually became infected. Relatedly, Dr. Risch
asserts that COVID-19 vaccination mandates, including the NBA

mandate, “ignored” the role that post-infection natural immunity
plays in helping to control the adverse consequences of the
pandemic. Relying on published studies, he concludes that post-
infection immunity reduced the risk of reinfection and of severe
disease. Dr. Risch points to studies which he regards as
showing that post-infection immunity was more protective against

31
subsequent infection and serious disease than a vaccination
without a prior infection.
Insofar as the NBA is concerned, Dr. Risch observes that by
December 2021, the NBA had added a booster dose requirement to
its mandate. Nonetheless, NBA referees and players, almost all
of whom were vaccinated, caught COVID-19 during the 2021-22

season. Dr. Risch concludes that, given the small number of NBA
staff seeking a religious exemption, even if all had gotten
COVID-19, the infection burden would have been less than the
breakthrough infection burden among the vaccinated referees.
The NBA moves to preclude the entirety of the Report. It
contends that the Report contains opinions that are irrelevant,
reflects legal conclusions, includes unreliable recitations of
scientific studies, or should be excluded pursuant to Rule 403.
Each of these points is well taken.
A. Relevance
The NBA argues that many of Dr. Risch’s opinions are
irrelevant. According to the NBA, the issue for the jury will

be whether it reasonably relied on health authority guidance for
the 2021-22 season and has carried its burden to show that
allowing exemptions to its vaccination policy would have imposed
an undue hardship. Accordingly, the NBA seeks to strike Dr.
Risch’s disagreements with the advice given by government

32
agencies regarding COVID-19 and the data presented by government
health authorities. For instance, Dr. Risch takes issue with
whether the government data was accurate and argues that the
government should have focused more on issues such as post-
infection natural immunity or developed incentives for
vaccination.

The NBA is correct. All or virtually all of Dr. Risch’s
proffered testimony is irrelevant. Although Dr. Risch is
offered as a witness on the issue of undue hardship, he does not
offer any opinion on the negative impact that game postponement,
rescheduling, and cancellation would have on the NBA and those
involved in NBA games. Nor does he dispute that the Omicron
variant of the COVID-19 virus was considered even more
transmittable than prior variants. His disagreements with
public health management of the pandemic are irrelevant to the
particular issues that created hardship for the NBA and the
reasonableness of the NBA’s reliance on its experts in 2021 and

2022. Indeed, in his deposition, Dr. Risch admitted that it was
not unreasonable for employers to rely on the government’s
information. He explained nonetheless that there was additional
information available and he objects to employers placing “sole”
reliance on government information.

33
The NBA seeks to strike as well those opinions which rely
on studies published after the 2021-22 season as irrelevant to
the NBA’s determination by December 2021 to insist that its
referees be vaccinated. It is correct. Although Dr. Risch
indicates that he is relying on later studies only to confirm
his opinion, without those later studies it is unclear whether

Dr. Risch had any reliable basis in the Fall of 2021 for a
different opinion than the one offered by the NBA’s medical
consultants. Citation to those later studies becomes at best
confusing.
B. Legal Conclusion
The NBA additionally seeks to exclude Dr. Risch’s Report to
the extent it offers legal conclusions. As an example of such
inadmissible testimony, the NBA points to Dr. Risch’s opinion
that allowing Richardson to work without a vaccination did not
constitute an undue hardship when measured against the Equal
Employment Opportunity Commission (“EEOC”) guidelines.
The NBA is correct that the plaintiff’s expert cannot offer

such opinions to the jury. In opposition to this motion,
Richardson agrees that Dr. Risch cannot testify to the legal
conclusions in his Report.
C. Reliability

34
The NBA seeks to strike much of the Report as unreliable.
It explains that Dr. Risch has rejected nearly all of the
studies that were available during the 2021-22 season and has
relied instead on a 2024 “pre-print” study -- i.e., a study that
is shared publicly but not peer-reviewed -- to conclude that
vaccinations were not as effective as they were believed to be

through 2022. During his deposition Dr. Risch admitted that the
majority of studies published as of October 2021 supported the
efficacy of the vaccine.
The NBA also contends that Dr. Risch has selectively
pointed to passages in studies to reach conclusions different
from what the authors of the study concluded, and has done so
without an adequate explanation. For example, to support his
opinion that vaccines were failing to suppress the spread of
infection in 2021, he relies on Madewell3, a peer-reviewed meta-
analysis published on April 28, 2022. According to Dr. Risch,
Madewell indicates that “by the latter half of 2021” two doses

of the COVID-19vaccines “lost most of their ability to reduce
risk of infection transmission.” While Madewell acknowledged
that COVID-19 vaccines became less effective in reducing the

3 See Zachary J. Madewell, et al., Household Secondary Attack
Rates of SARS-CoV-2 by Variant and Vaccination Status: An
Updated Systematic Review and Meta-analysis, JAMA Network Open,
April 28, 2022, https://jamanetwork.com/journals/jamanetwork
open/fullarticle/2791601.
35
spread of new variants, it distorts Madewell to cite it for the
proposition that vaccines had “lost most of their ability” to
suppress the spread of infection. Madewell analyzed 135 studies
and concluded that “Full vaccination reduced susceptibility and
infectiousness, but more so for Alpha than Delta and Omicron.”
Madewell at 1.

As another example, Dr. Risch relies on the Leon4 as support
for his view that natural immunity is more effective than
vaccination in preventing reinfection. This is an egregious
example of cherry-picking. Leon reported on data from New York
and California for a diagnosis of COVID-19 infection (“cases”)
and hospitalizations. It compared rates between those
vaccinated and unvaccinated, including whether they had a
previous COVID-19 diagnosis. It admitted that its analysis was
conducted before the emergence of Omicron and therefore its
conclusions regarding immunity “might be diminished.” Id. at
131. It concluded nonetheless that “vaccination remains the

safest and primary strategy to prevent SARS-CoV-2 infections,
associated complications, and onward transmission.” Id.
Finally, it noted that the CDC’s Advisory Committee on

4 Tomás M. León, et al., COVID-19 cases and hospitalizations by
COVID-19 vaccination status and previous COVID-19 diagnosis -
California and New York, May-November 2021, CDC Morbidity and
Mortality Weekly Report, January 28, 2022,
https://www.cdc.gov/mmwr/volumes/71/wr/pdfs/mm7104e1-H.pdf.
36
Immunization Practices recommended that all eligible persons be
up to date with vaccinations, which provide “the most robust
protection against initial infection, severe illness,
hospitalization, long-term sequelae, and death.” Id.
While cross-examination is an appropriate method for
demonstrating the limitations in an expert’s analysis, before

that analysis may be admitted at trial, its proponent must still
show that it is sufficiently reliable to pass muster under Rule
702 and Daubert. Clerveaux, 984 F.3d at 233. This Richardson
has not done.
In opposing this motion, Richardson points to only three
studies that he argues are relevant and appropriate support for
Dr. Risch’s opinion: Madewell, which is discussed above, Puhach5
and the pre-print Riemersma6. As already explained, Madewell
does not support the proposition for which Dr. Risch seeks to
use it.
Puhach was not published until March 2023 and therefore

would not have been available to the NBA when it made its

5 Olha Puhach, et al., SARS-CoV-2 viral load and shedding
kinetics, Nature Reviews Microbiology, March 2023,
https://pmc.ncbi.nlm.nih.gov/articles/PMC9716513/pdf/41579_2022_
Article_822.pdf.
6 Kasen K. Riemersma, et al., Vaccinated and unvaccinated
individuals have similar viral loads in communities with a high
prevalence of the SARS-CoV-2 Delta variant, medRxiv, July 31,
2021. https://doi.org/10.1101/2021.07.31.21261387.
37
decision to no longer permit unvaccinated referees to work. In
any event, Dr. Risch describes Puhach as reporting in 2023 that
vaccinated individuals who were infected cleared their
infections “roughly 27% sooner” than unvaccinated individuals.
If anything, that statistic supports adoption of a vaccination
requirement. Puhach’s conclusion does as well. It reported,

even though society was entering its third year of the pandemic,
that “no diagnostic tests exist that reliably determine the
presence of infectious virus.” Id. at 158.
Finally, Riemersma, according to Dr. Risch, indicated that
those infected during the period in which the Delta variant was
prominent, had “similar” viral loads whether or not they had
been vaccinated. Riemersma at 9. That is an accurate
description of Riemersma. But this study, which was not peer
reviewed, does not undercut the advice the NBA’s experts
provided to it, much less the recommendations of the CDC. It
does not take issue with the data showing that vaccination

reduced the risk of infection. Instead, Riemersma measured
viral loads among those who became infected and were
symptomatic. Riemersma compared vaccinated and unvaccinated
individuals infected with the Delta variant to determine whether
individuals with vaccine breakthrough infections could shed
Delta viruses at a level consistent with potential transmission.

38
Id. at 3. It concluded that vaccinated individuals can shed and
potentially transmit infectious virus and should be tested when
symptomatic or after close contact with someone diagnosed with
COVID-19. Id. at 8.
In sum, Dr. Risch has not employed the same level of
intellectual rigor that characterizes the practice of an

infectious disease expert generally or an expert in the COVID-19
virus. His opinions must therefore be stricken as well for
their lack of reliability.
D. Rule 403

Finally, the NBA argues that the Report must also be
stricken pursuant to Rule 403. Under Rule 403, courts may
exclude relevant evidence “if its probative value is
substantially outweighed” by a danger of confusing the issues or
misleading the jury. Fed. R. Evid. 403. Both of these dangers
exist here.
Dr. Risch’s analysis creates a substantial risk of
confusing and misleading the factfinder. In deciding whether
the NBA has carried its burden of showing that an accommodation
of Richardson would have created an undue hardship, jurors must
focus on what the relevant scientific community and the NBA
understood of the COVID-19 virus and the efficacy of vaccines
and testing in the 2021-22 season, particularly during the late

39
Fall of 2021. Dr. Risch’s criticism of public health
authorities’ recommendations in the midst of a pandemic,
especially when based on a few hand-picked studies that post-
date the period in which the NBA made its decision, has limited
to no probative value. Admission of his testimony risks
misleading and confusing the jury as to the relevant standard

for determining undue hardship and the relevant evidence on
which to base its verdict.
IV. Mitigation of Damages
Richardson seeks, among other things, back and front pay.
The NBA contends that Richardson is precluded from seeking
either back or front pay because he made no effort to mitigate
his damages by seeking other employment. The NBA’s motion is
granted.
An employee discharged in violation of Title VII has an
obligation to mitigate his damages. See Shultz v. Congregation
Shearith Israel of City of New York, 867 F.3d 298, 306 (2d Cir.
2017). This requires a plaintiff to exercise “reasonable

diligence in finding other suitable employment.” Ford Motor Co.
v. Equal Employment Opportunity Commission, 458 U.S. 219, 231
(1982); see also 42 U.S.C. § 2000e–5(g)(1). Work is “suitable”
where it is “substantially equivalent” to the work the plaintiff
was denied. Ford Motor Co., 458 U.S. at 231-32. A plaintiff

40
“need not go into another line of work, accept a demotion, or
take a demeaning position.” Id. at 231.
Generally, an employer seeking to avoid a lost wages award
“bears the burden of demonstrating that a plaintiff has failed
to satisfy the duty to mitigate.” Broadnax v. City of New
Haven, 415 F.3d 265, 268 (2d Cir. 2005). “This may be done by

establishing (1) that suitable work existed, and (2) that the
employee did not make reasonable efforts to obtain it.” Id.
(citation omitted). An employer, however, “is released from the
duty” to establish the availability of suitable employment “if
it can prove that the employee made no reasonable efforts to
seek such employment.” Id. (citation omitted). If an employer
meets its burden of showing a failure to seek alternative
employment, “the burden shifts to the plaintiff to show that
compensation for [alternative] employment is not comparable and
thus the plaintiff is entitled to limited damages.” Id. at 270
(citation omitted).

It is undisputed that Richardson made no effort to seek
other employment and thus to mitigate his damages. The burden
thus shifts to Richardson to show that the compensation from
alternative, suitable employment was not comparable to his NBA
compensation and that he is entitled to the difference.
Richardson has failed to carry that burden and also failed to

41
present evidence from which a jury could calculate any award of
damages to him.
To begin with, the NBA has produced evidence of several
kinds of work that are available to a former NBA referee:
refereeing in other professional and amateur leagues; refereeing
at the collegiate level; performing consulting work for

professional or amateur basketball teams; running a referee camp
or educational service; and working in television as an analyst.
Other former NBA referees have gone on to do these kinds of
work, including one who started a consulting business for
basketball referees.
Richardson does not dispute that the work the NBA
identifies exists. Instead, he advances two arguments,
supported by his own declaration and the declarations of two
other NBA referees. First, he contends that some of the work
the NBA identifies had lower pay or less prestige. For example,
Richardson contends that collegiate referees are independent

contractors who receive no benefits and who earn less than half
Richardson’s former salary. Second, Richardson asserts that
even if work the NBA identifies was suitable, it would have been
difficult to obtain the work at this late stage in his career
and that certain roles are “rarely available” and are not posted
publicly.

42
Richardson was not excused from conducting a search because
he judged his prospects of securing employment to be poor: A
Title VII claimant’s burden to use reasonable diligence in
finding other suitable employment “is not onerous” and it “does
not require him to be successful in mitigation.” Dailey v.
Societe Generale, 108 F.3d 451, 456 (2d Cir. 1997) (citation

omitted). Work as a referee, as well as consulting or broadcast
work related to basketball and refereeing, is suitable,
alternative work. It is not another line of work, a demotion,
or demeaning. If he had found work at which he would have
earned less than he did as an NBA referee, he would have been
entitled to the difference in compensatory damages. Greenway v.
Buffalo Hilton Hotel, 143 F.3d 47, 54 (2d Cir. 1998). As it is,
Richardson neither looked for work nor has he presented evidence
from which a jury could calculate an amount of compensatory
damages by comparing the income and benefits from other suitable
employment and his NBA salary and benefits. Accordingly,

Richardson’s claim for back and front pay is stricken.
V. Richardson’s Motion for Summary Judgment
Richardson moves for summary judgment on two issues: that
he has established that his objection to the vaccine mandate was
based on sincerely held religious beliefs, and that the NBA’s

43
undue hardship defense fails as a matter of law. His motion is
denied.
As explained in discussing the NBA’s motion for summary
judgment, there exists a dispute of material fact as to whether
Richardson’s objection to the vaccine mandate is based on
sincerely held religious beliefs. A jury could conclude that

Richardson was hiding secular concerns behind a “veil of
religious doctrine.” Gardner-Alfred, 143 F.4th at 64.
As to undue hardship, Richardson argues that the NBA “pre-
negotiated” the appropriate accommodations for referees with
approved exemptions in the COVID Agreement. He emphasizes that
when it entered the COVID Agreement, the NBA already understood
that unvaccinated referees had a “greater likelihood” of getting
and transmitting COVID-19. But as explained above, the NBA was
entitled both under the COVID Agreement and as a matter of law
to continue analyzing, as the pandemic evolved, what
accommodations it could provide without incurring an undue

hardship.
Richardson relatedly argues that, having allowed
unvaccinated referees to participate in games during the 2020-21
season, it has failed to show that it could not do so the
following season. The NBA’s choices during the 2020-21 season -
- before vaccines were available and before the emergence of the

44
Omicron variant –- do not entitle Richardson to summary judgment
on the NBA’s undue hardship defense. It is worth noting,
moreover, that the pandemic had a very substantial impact on the
NBA’s operations during the 2020-21 season. It shortened the
season and more than 30 games were postponed. If anything, the
experience of that season strongly supports the NBA’s change in

strategy the following season.
Richardson next points to the fact that the NBA did not
impose a vaccination requirement on the NBA players and that
some small number of players did not get vaccinated. This
comparison is inapposite. Among other things, the plaintiff
does not contend that the NBA had the ability to unilaterally
impose a vaccine requirement on the players.
Finally, Richardson contends that the NBA could have placed
him on an indefinite paid or unpaid leave of absence. Employers
are not required to place employees on an indefinite leave of
absence. See Vangas v. Montefiore Med. Ctr., 823 F.3d 174, 181

(2d Cir. 2016) (an indefinite leave extension is not a
reasonable accommodation for a disability). An indefinite leave
would be particularly burdensome here. The NBA had no ability
to predict the course of the pandemic at the conclusion of the
2021-22 season. As a matter of law, Richardson was not entitled
to such an accommodation.

45
Conclusion
The plaintiff’s February 20, 2025 motion for summary
judgment is denied. The defendants’ February 28, 2025 motion to
exclude the testimony of Dr. Risch is granted and their motion
for summary judgment is granted in part. The defendants are
granted summary judgment (1) on the plaintiff’s Title Vil claim
for the period following early December 2021 on the ground that
permitting Richardson to referee NBA games would have placed an
undue burden on the defendants, and (2) on the plaintiff’s
request for back and front pay.

Dated: New York, New York
August 18, 2025

United States District Judge

46

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11124572. Public record. Not legal advice.