Login | May 20, 2019

As players pretend to be GMs, NBA needs to control situation

TIMOTHY LIAM EPSTEIN
Law Bulletin columnist

Published: March 11, 2019

In the NBA, the concept of “super teams,” where star players join forces to stack the deck in their favor, is not a new phenomenon. However, the NBA does seem to be increasing its investigations into potential tampering by team officials, including tampering of players under contract.

Articles 35 and 35A of the NBA Constitution forbid the inducement by any owner, general manager or other team official of players who are under contract elsewhere to join their team. In addition, these provisions lend the commissioner significant latitude when handing down punishments, which can range from a simple fine to loss of a draft pick.

Although, the NBA has never fined or otherwise penalized an individual player for tampering, it does seem to be increasing its focus on team violations.

The recent issue surrounding Anthony Davis and the New Orleans Pelicans has caused league officials to consider this issue even more closely. Davis was fined $50,000 because his agent, Rich Paul, put out a public statement requesting that he be traded.

Paul has been involved in recent controversies with other players in the past, including LeBron James and Ben Simmons. James stated in an interview last December that it would “be amazing” to play with Davis on the Lakers. Coincidentally, Paul also represents James and Simmons.

Davis has reportedly put out a list of teams he would want to play for, including the Lakers, leading the NBA to open up a tampering investigation into the Lakers’ pursuit of Davis. The NBA has already fined Milwaukee Bucks’ owner Marc Lasry $25,000 for expressing his excitement that Milwaukee is one of Davis’ reportedly preferred destinations.

In addition to Davis’ issues, Simmons recently expressed a desire to work out with Lakers legend Earvin “Magic” Johnson. However, Johnson is currently employed as the president of basketball operations with the Lakers, which could imply a tampering issue if Johnson in any way attempts to have Simmons request a trade or sign with the Lakers when he becomes a free agent.

The Lakers and the 76ers, Simmons’ current team, have tried to downplay the meeting, already stating that the meeting will not happen given the complexities of the situation and potential issues. Rob Pelinka, the Lakers’ general manager, asked that Elton Brand, the 76ers general manager, approve the meeting before it occurred, something Brand denied.

Pelinka is likely exercising extra caution because of the past fines the Lakers have incurred for tampering. Previously, Pelinka was fined for unauthorized contact with Paul George’s agent when he was under contract, and Johnson caused the team to be fined a total of $550,000 for comments about a desire for George and Giannis Antetokounmpo to join the Lakers.

The issue for the teams in the Davis situation is that it is common knowledge that Davis wants out of New Orleans and, naturally, any team would want to trade for a perennial All-Star and MVP who is sure to sell more tickets and merchandise. However, teams are wary of being penalized, even if the players themselves have not stopped their recruiting efforts

If the NBA were to continue to allow players to recruit individually, it would circumvent the system that it has created. NBA rules restrain the ability to recruit players under contract because it could take the power right of the league’s hands.

Since the tampering/recruiting rules were collectively bargained for between the NBA and the Players Association, federal antitrust laws are not implicated due to the nonstatutory labor exemption.

An additional issue is that players’ individual tampering often involves small versus large markets. Many players have reportedly discussed teaming up in major markets, including Los Angeles and New York. Teams like New Orleans are therefore disadvantaged and many league officials believe that small market teams will not be protected if the players continue with their efforts without consequence.

The words of Articles 35 and 35A quite literally forbid actions like James’. However, the NBA has taken the position that when players express interest in playing with another team’s player, the standard for a tampering violation is not met.

The NBA has denied what can be described as blatant disregard of their bylaws. Thus, the NBA will likely continue to enforce the rules harshly on teams, but not individual players. If the league was to enforce the tampering rule on players, it would likely have to punish every single member of the all-star team. It is no secret that all-star weekend is a hot-bed for recruiting.

Just after the all-star break, a report came out saying that Washington Wizards all-star Bradley Beal was heavily recruiting other stars to Washington, D.C., with talented teammate John Wall out for the next 12 months with a torn Achilles tendon.

These types of reports are not uncommon. During the 2017 all-star break prior to his move to the Golden State Warriors, Draymond Green reportedly reached out to Kevin Durant in a similar fashion.

Player recruiting continues to worry teams that have not been lucky enough to attract star talent or have had a star force their way out of town (i.e. Paul George, Kyrie Irving). The NBA assumed that the financial incentive of staying on the same team would deter player recruiting, but the prospect of winning championships with multi-all-star lineups seems to have largely diminished that barrier.

Taking Davis’ current situation as an example; his contract expires in two years. Davis would be eligible for the “super-max” extension, guaranteeing an additional $33 million in compensation if he were to stay a Pelican. However, if he changes teams, he will no longer meet the requirements of a “super-max” player. Even with this in mind, Davis clearly has no plans to stick around.

The NBA remains steadfast in its investigation of the Davis situation, and the Lakers’ role in the controversy. If tampering has occurred in the eyes of the league, the Lakers could face a much heavier punishment, including the loss of a draft pick, which happened to the Miami Heat in 1995 when they hired Pat Riley away from the Knicks.

This remains a worst-case scenario for violating the tampering rule, but one that the NBA may impose, if not just to prove a point. If it really wants full compliance with the tampering rule, however, the league must also focus on the players.

Timothy Liam Epstein is a partner at Duggan, Bertsch LLC and chair of the firm’s litigation practice group and a member of the firm’s sports and entertainment/festival/event practice groups. He also serves as an adjunct professor at Loyola University Chicago School of Law, teaching courses in sports law. His sports law practice is all-encompassing, but focuses on the litigation needs of players, coaches, teams and schools. He can be reached at tepstein@dugganbertsch.com.


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