The NBA fined the Los Angeles Lakers $500,000 on Thursday for tampering with the Indiana Pacers. Earlier this year, the Lakers allegedly attempted to persuade Oklahoma City Thunder forward Paul George, who at the time was under contract with the Pacers and who is set to become a free agent on July 1, 2018, to join the Lakers at the first available opportunity.
The NBA charges that Lakers general manager Rob Pelinka—a former NBA agent—engaged in tampering through communications about George with George’s agent, Aaron Mintz. The NBA further contends that Pelinka’s communications were, in effect, the second instance of the Lakers tampering in hopes of landing George. On April 20, Lakers president Magic Johnson appeared on the Jimmy Kimmel Live show and, in a light-hearted way, discussed his interest in signing George. Following Johnson’s interview, the NBA warned the Lakers that its officials must stop engaging in external communications about George. It appears Pelinka didn’t heed the NBA’s warning.
It doesn’t take much to tamper in the NBA
The NBA has a decidedly “low bar” for tampering. Under Article 35A of the league’s constitution, teams are forbidden from any kind of attempt to persuade a player, coach, trainer, general manager or any other person who is under contract with another team to join the tampering team. The word “any” is crucial. Tampering need not entail direct communications with an employee of another NBA team. A finding of tampering also doesn’t require evidence that the supposed persuasion had any influence on the employee. In assessing whether tampering occurred, is the attempt of persuasion that matters.
The logic behind the NBA employing a low bar for tampering rests in how the NBA is structured. At its core, the NBA is a joint venture of independently owned franchises that each agrees to play by a certain set of competition rules. If one team doesn’t abide by those shared rules, it gains an unfair advantage over others. As a result of tampering, the league’s competitive model is degraded.
Along those lines, tampering entails interference with another team in hopes of convincing an employee of that other team to seek a new employer. Here, if George learned through his agent’s alleged discussions with Pelinka that the Lakers were positioning themselves to sign him in 2018, George may have become less inclined to re-sign with the Pacers. In that respect, the Pacers would have been “damaged” by the Lakers tampering: they would have landed in a weaker position to re-sign George if tampering led George to become more interested in joining the Lakers.
Tampering also provides the tampering team with an unfair advantage over teams that might be similarly positioned to recruit the person of interest. Should he become a free agent in 2018, George will have no shortage of suitors. A number of teams will likely be able to sign a max free agent and George would be at or near the top of their list of targets. To the extent the Lakers’ tampering helped to cultivate a favorable impression of the team to George, other teams could face a more difficult task in recruiting George.
To illustrate the NBA’s low bar for tampering, the NBA fined Dallas Mavericks owner Mark Cuban $100,000 in 2010 merely because Cuban publicly remarked about his interest in signing LeBron James if James ever became available. Even though Cuban’s remarks revealed nothing new or surprising, he technically tampered with the Miami Heat because James was under contract with the Heat. A few years later, the NBA fined the Atlanta Hawks an undisclosed amount of money in another example of indirect communications. In a letter mailed to season ticket holders, the Hawks expressed a desire to sign Los Angeles Clippers guard Chris Paul and Los Angeles Lakers center Dwight Howard once those players became free agents.
The NBA has typically punished tampering teams through monetary fines. Under Article 35A, NBA commissioner Adam Silver has the discretion to impose a fine of up to $5 million for tampering. Silver can impose other penalties, as well. They include suspending the team officials who partook in tampering, prohibiting the tampering team from employing the person of interest, voiding the tampering team’s draft picks or transferring those picks to the victimized team. The most significant tampering penalty occurred in 1995 when the Heat transferred their 1996 first–round pick along with $1 million to the New York Knicks. The penalty reflected Heat officials tampering through their communications with Pat Riley, who was under contract with the Knicks.
The Lakers could thus have suffered a much more severe penalty. If, for instance, Silver had prohibited the Lakers from signing George for the next two years, the team’s strategy for future transactions would have been altered—perhaps dramatically so. A $500K fine, in contrast, likely has no tangible impact on the team’s expected recruitment of George.
The Lakers essentially have no choice but to pay the fine
Article 35A makes clear that Silver’s finding of tampering is “final, binding, conclusive, and unappealable.” The Lakers already had a chance to plead their case with Silver. As evidenced by Silver’s finding of tampering, the Lakers failed to convince him.
In the department of “things that will never happen,” the Lakers could go to federal court and ask a judge to vacate Silver’s finding of tampering. It wouldn’t take very long for the judge to dismiss the petition: NBA teams contractually agree to be bound by the league constitution and thus contractually agree with Silver’s authority and accompanying discretion related to tampering.
Lakers’ penalty is unlikely to deter tampering in the NBA
To the extent the NBA wants to scare NBA teams that might be tempted to tamper, it’s unlikely that the imposition of a $500K fine will be all that deterring. Perhaps the NBA is waiting for a more egregious example of tampering to impose the kind of penalty—such as taking away a team’s first-round draft pick or embargoing a team from signing a particular player—that would deter tampering. Until then, don’t expect tampering to stop.
Michael McCann, SI's legal analyst, provides legal and business analysis for The Crossover. He is also the Associate Dean for Academic Affairs at the University of New Hampshire School of Law.