• The Lakers are in the news regarding issues of tampering yet again after Magic Johnson sought to give advice to Philadelphia 76ers' guard Ben Simmons. Could the attempt solicit
By Michael McCann
February 11, 2019

Another day. Another tampering controversy involving the Los Angeles Lakers.

On Monday, NBA spokesperson Mike Bass informed media that the league is investigating possible communications between Philadelphia Sixers guard Ben Simmons and Lakers employees. Such conversations, Bass notes, might have run afoul of league rules.

Those “rules” refer to anti-tampering provisions found in Articles 35 and 35A of the league’s constitution. Owners, general managers, coaches, scouts, referees and—yes—players are forbidden from using enticement, inducement or encouragement to persuade any person who is under contract with another team to join the tampering team.

Potential punishments for tampering range from the symbolic, to the modest, to the franchise-altering. They include: warnings, fines, suspensions, forfeiture of draft picks, transfer of draft picks from the tampering team to the harmed team and a prohibition of the tampering team from acquiring a particular player.

A called-off meeting between Johnson and Simmons

Over the weekend, Lakers president of basketball operations Magic Johnson told media that he wanted to share some “big guard” secrets with Simmons. Certain aspects of the 22-year-old Sixers star’s game have drawn comparisons to those of Johnson. Johnson, of course, is one of the greatest players in NBA history. Despite standing 6’9, Johnson primarily played point guard for the Lakers during the 1980s and 90s. He could also immediately pivot to, and excel at, any of the other four positions on the court—even center. It would be unfair to compare any player to a generational talent like Johnson, but the 6’10 Simmons plays guard at a similar size and shares some of the same gifts.

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Given that a player of Johnson’s caliber is the truly “best-case” scenario for Simmons, it makes sense that Simmons would covet Johnson’s advice. Simmons probably also values the fact that Johnson is a former coach who has provided advice to younger players at various times over the last few decades.

Johnson revealed over the weekend that Simmons had reached out to an unnamed person with the Lakers with a request to meet with Johnson this upcoming summer. Johnson says he expressed a willingness to meet with Simmons, who can become a restricted free agent in the summer of 2020. Wisely, the 59-year-old Lakers executive also cautioned that any forthcoming meeting would need to be approved first by the NBA.

On Monday, Sixers general manager Elton Brand revealed in a radio interview that he had already rejected a proposed meeting between Simmons and Johnson. Brand explained that Lakers general manager Rob Pelinka had reached out to him over a month ago and relayed Simmons’s interest in speaking with Johnson as well as with other Hall of Famers. Brand says he told Pelinka “no.” It’s unclear if Johnson’s comments reflect Johnson not being aware of Brand’s earlier rejection or if Simmons is now attempting another bid to meet with Johnson.

The Lakers, for their part, issued a statement on Monday in response to the NBA announcing the investigation. The Lakers’ depiction of events elaborates on the one offered by Brand. According to the Lakers, a Sixers employee (who The Los Angeles Times reports is thought to be Allen Lumpkin, the Sixers’ director of basketball administration) emailed an employee of Lakers last November with a request from Simmons that he speak with Johnson. The request was then relayed to Pelinka, who in turn contacted Brand. While Brand says he rejected this request, the Lakers’ statement clarifies the circumstances of that rejection to reflect favorably on Pelinka and Johnson. According to the statement, Pelinka prudently demanded from Brand that the Sixers pre-approve, in writing, any meeting between Simmons and Johnson before it occurs. The statement also asserts that the last interaction between Brand and Pelinka on this subject “was the end of the matter.” However, the fact that the NBA has informed media of an ongoing investigation indicates the matter is not over.

The Lakers and their recent history of tampering

Johnson and his Lakers colleagues need no introduction to the league’s anti-tampering policy. Last year the NBA fined the Lakers $50,000 for tampering. The fine was imposed because, during an ESPN interview, Johnson identified similarities between his game and that of Milwaukee Bucks star Giannis Antetokounmpo.

It wasn’t Johnson’s first foray into the world of tampering.

A year earlier, Johnson came under fire for his statements during an interview on Jimmy Kimmel Live. Although he appeared to be only semi-serious and had been joking with Kimmel, Johnson acknowledged that he would love if the Lakers could acquire Paul George. The NBA didn’t fine Johnson or the Lakers for the Kimmel Show exchange but issued a warning. Yet several months later, the NBA fined the Lakers $500,000 for unauthorized contact between Pelkina and George’s agent, Aaron Mintz. The severity of the punishment reflected the Lakers failing to heed the warning for Johnson’s remarks.

The Lakers, as I detail in another The Crossover legal column, are the subject of a separate NBA investigation into whether their efforts to trade for New Orleans Pelicans star Anthony Davis have involved tampering. LeBron James and Davis employ the same agent, Rich Paul of Klutch Sports. There is unsubstantiated speculation that James, who in December told ESPN's Dave McMenamin that it would be “amazing” and “incredible” if the Lakers could trade for Davis, has used Paul as an intermediary to persuade Davis to play for the Lakers. The NBA recently fined Davis, who is under contract with the Pelicans through the 2019-20 season, $50,000 for using Paul to convey a public trade request.

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The NBA has never fined or suspended a player for tampering. This is in spite of players openly sharing their not-so-secret plans to recruit players who are under contract with other teams. Either type of sanction, though, is technically authorized by Article 35.

It’s not yet clear if James is connected to the league’s investigation into Simmons and the Lakers. However, it’s worth noting that, like James and Davis, Simmons employs Paul as his agent.

Two conflicting roles for Johnson and what they reveal about the anti-tampering policy

Johnson finds himself in an inherently awkward situation as both a living legend and a Lakers executive. It is customary for a young NBA star to seek the counsel and guidance of a current or future Hall of Famer, even one connected to a rival team.

Take Boston Celtics forward Jayson Tatum. Last summer the 20-year-old former Duke standout sought the wisdom of Kobe Bryant on how to improve his game. This is in spite of Bryant’s longtime association to the Celtics’ archrival, the Lakers. For his part, Bryant has discussed how during his 20 seasons in the NBA he gained important advice from Michael Jordan. This was in spite of Jordan playing on teams (and later owning a team) that competed against Bryant and the Lakers. There are numerous other examples of young stars smartly desiring the guidance of the greatest players ever, regardless of which teams previously employed those players.

Yet by virtue of his current employment, Johnson can’t take on a mentor or fatherly role to Simmons and other players who are under contract to other franchises. This is true even though Simmons, who would have much to gain from speaking with Johnson, suffers the accompanying consequence. Indeed, a coaching conversation between Johnson and Simmons would almost certainly collide with the NBA’s anti-tampering policy. The conversation could easily be perceived as a trade of sorts, with Johnson improving Simmons’s game in exchange for Johnson becoming encouraged or induced to one day join the Lakers.

The league has strictly enforced anti-tampering as it relates to owners and team executives. This is true even when an owner or executive merely mentions another player’s name, never mind tried to speak with him.

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To take a very recent illustration, consider the NBA’s decision Monday to fine Milwaukee Bucks co-owner Marc Lasry $50,000 for tampering. During a media interview, Johnson noted, “we hope it would be players like Anthony Davis and others who want to come to Milwaukee." Lasry made the remark upon being prompted to respond to a report that Davis would be willing to sign a contract with the Bucks.

Keep in mind, Lasry hadn’t spoken with Davis or, it seems, done anything improper. Also, Lasry’s comments hardly revealed a covert plot—the entire NBA community knows that every NBA team with a chance of acquiring Davis, particularly those with whom he might be willing to re-sign, will aggressively pursue him. Yet Lasry’s statement nonetheless violated the NBA’s anti-tampering policy. This is because it encourages a player who is under contract with another team to join another team.

The NBA’s desire to enforce its anti-tampering policy might at times seem over-reaching or unnecessary. However, that desire underscores the joint venture quality of competing teams within a league.

While in most business environments employers can readily “poach” employees of other companies, a pro league is structured differently. NBA teams, of course, compete both on and off the court. But they also agree to certain rules that restrain competition in order to enhance the league’s interests. The league believes it functions better, and enjoys more overall competition, when teams accept certain rules of competition.

Those rules are found throughout the NBA’s business model. Take an entry draft that bestows one team with the exclusive right to sign an otherwise free agent college star. The draft also “rewards” the worst teams with the right to select the best players in hopes that every team eventually succeeds. Or take the salary cap. The cap prevents large market teams and high-spending owners from doing what they might individually prefer to do—offer as much money as necessary to sign the best players. The same rationale is used to justify the league’s anti-tampering policy. It restrains teams’ individual capacities to recruit other teams’ employees because such efforts might prove disruptive to the league and damage the NBA’s brand. These rules are also immunized from relevant types of federal antitrust scrutiny when they are collectively bargained with the players’ union. For the NBA, the league and those who work in it accept and agree to follow the anti-tampering policy.

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The NBA is also clearly watching the Lakers and how the organization intends to build a championship team around James. While James still dominates on the court, he is 34 years old and has missed 18 games this season due to injuries. To the extent the Lakers see a window of opportunity to win a championship with James, the team probably needs to assemble a championship roster within the next near or two. The fact that James, Davis and Simmons all share the same agent is certainly not lost on the NBA. While Paul, as a player agent, is not subject to the league’s anti-tampering policy, a player who directs him to tamper would be governed by that policy.

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The Lakers need to be mindful that the NBA could impose a far more severe punishment for tampering than a fine. In 1995, the NBA found the Miami Heat guilty of tampering after the franchise successfully hired away coach Pat Riley from the Knicks. As a punishment intended to make the Knicks “whole again,” the Heat were ordered to transfer a first-round pick to the Knicks.

Here, if NBA commissioner Adam Silver finds that the Lakers have again violated the anti-tampering policy, Silver could reason that the franchise is not really “getting the message” through mere fines. Silver could elevate the penalty type and take away a Lakers draft pick, transfer a Lakers draft pick to a team harmed by the tampering, or—and this might prove catastrophic for the Lakers’ near-term championship aspirations—prohibit the Lakers from acquiring players whom their tampering targeted. Such players would presumably include Davis and Simmons.

The Crossover will keep you posted on all major tampering developments.

Michael McCann is SI’s legal analyst. He is also Associate Dean of the University of New Hampshire School of Law and editor and co-author of The Oxford Handbook of American Sports Law and Court Justice: The Inside Story of My Battle Against the NCAA.

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