Why Tampering In The NBA Still Makes Good Business Sense

Usually, there are 60 picks made in every NBA Draft. This summer, there were only 58.

Both the Milwaukee Bucks and Miami Heat had their 2022 second-round picks taken away from them by the NBA as a punitive measure as a result of investigations into “tampering” offences. For the Heat, it was due to their 2021 pursuit of Kyle Lowry, while for the Bucks, it was due to the leaked announcement of their 2020 trade for Bogdan Bogdanovic, a trade which ultimately never happened.

Tampering in an NBA context refers to the act of a team’s representatives speaking to players on rival teams to attempt to lure them to join their team. This includes public shows of interest – something Magic Johnson could not seem to stop doing during his time in charge of the L.A. Lakers – as well as private solicitations. “Representatives” also technically includes players, but the league has resigned itself to the inevitably of player tampering, and NBA Commissioner Adam Silver has conceded that investigating player-to-player tampering is not really something that could ever be done.

If tampering punishments feel like they are becoming more common, that is because they are. In the social media era, in which the news cycle is almost instant, news of transactions is nigh-on immediate with their agreement without the need to wait for a press release. The rush to be first has become an industry, something that has dovetailed with the consistent shortening of player contracts and resultant higher degree of roster turnover. There is more player movement than ever, and it is being reported faster than ever.

The rush to be first, though, has well and truly exposed the façade of the idea that teams cannot negotiate with free agents until the expiration of their previous contracts. It never was the case, but the slow drip-feeding of news at least kept up the pretence. Pretence, though, was all it was; to quote John Hollinger of The Athletic, “[f]ree agency is 90 percent done by the time it allegedly starts”. In the case of Bogdanovic, the news was reported three whole days before the move was even legal.

In the 2022 NBA offseason, this led to the farcical situation in which 31 free agency moves were reported as being done within the first 31 minutes of the free agency window supposedly opening. With each passing year, the lip service wanes just that little bit more, and the rifeness of the practice becomes more apparent.

With this in mind, in 2019, the league’s Board of Governors approved new measures designed to enforce compliance, to try and get on top of a situation that had long since gotten on top of the league. In addition to those mentioned above, there are further punishments forthcoming for recent violations. The Chicago Bulls will lose a 2023 second-round pick as a result of their urgency in acquiring Lonzo Ball, and the Philadelphia 76ers will lose both their 2023 and 2024 second-rounders for this summer’s pursuit of the very, very veteran P.J. Tucker.

Even then, only some offenders are being punished, and the criteria for punishment seem entirely too fluid. The Bucks, for example, received a punishment for a deal they did not even do, with the reasoning cited being at least in part because they did not do it. The league, surely, cannot have it all ways. The plague is growing exponentially quicker than its remedy – far from a cure, the scattergun enforcement of anti-tampering measures serves to further highlight the prevalence.

Tampering is not an especially well understood concept amongst fans and media alike, yet it is clearly defined. Exhibit 35 of the NBA’s Constitution defines tampering by players, and its penalty, as follows:

• Any Player who, directly or indirectly, entices, induces, persuades or attempts to entice, induce, or persuade any Player, Coach, Trainer, General Manager or any other person who is under contract to any other Exhibit A A-25 Member of the Association to enter into negotiations for or relating to his services or negotiates or contracts for such services shall, on being charged with such tampering, be given an opportunity to answer such charges after due notice and the Commissioner shall have the power to decide whether or not the charges have been sustained; in the event his decision is that the charges have been sustained, then the Commissioner shall have the power to suspend such Player for a definite or indefinite period, or to impose a fine not exceeding $50,000, or inflict both such suspension and fine upon any such Player.

For non-playing staff, Exhibit 35A goes even further:

• No person may, directly or indirectly, (i) entice, induce, persuade or attempt to entice, induce or persuade any Coach, 48 Trainer, General Manager or any other person who is under contract to any other Member of the Association to enter into negotiations for or relating to his services or negotiate or contract for such services or (ii) otherwise interfere with any such employer-employee relationship of any other Member of the Association. The Commissioner, either in his discretion or at the request of any Member who alleges that its employee has been tampered with, shall conduct an investigation into whether a person has violated the anti-tampering rule set forth in the prior sentence. In the event that, following such investigation and a hearing at which the person (and the Member employing the person allegedly tampered with) has an opportunity to be heard after due notice, the Commissioner determines that the anti-tampering rule has been violated, he shall have the power, in his sole discretion, to impose a penalty for such offense, which penalty may include (without limitation) the suspension of such person for a definite or indefinite period; the prohibition of the Member employing or otherwise affiliated with the offending person from hiring the person being tampered with for a definite or indefinite period; the forfeiture of Draft picks held by the Member employing or otherwise affiliated with the offending person or the transfer of such Draft picks to the Member aggrieved by the tampering; and/or the imposition of a fine upon the offending person and/or the Member employing or otherwise affiliated with such offending person in an amount not to exceed $5,000,000. In the event that the Commissioner imposes a fine, he may direct that some or all of the fine be paid directly to the Member aggrieved by the tampering.

Essentially the same language, then, between tampering by players and tampering by executives and coaches. But what certainly is not the same in the event of non-playing personnel tampering is the potential penalties involved.

Those potential sanctions have been increased by the 2019 changes. The $5 million fine is now up to $10 million, and the league now has orders in place for audits, record retention and the like to try and put their finger in the tampering dyke.

But the problem here – and what is often the problem with tampering – is that there is usually no proof of any conduct. Without proof, team representatives can up to a point claim that the media made their reports up. Clear definitions of the offending conduct do not automatically mean clear violations. In an industry of verbal agreements, the messenger cannot be shot.

In lieu of proof, the NBA seems to police the reporting. This in turn prohibits the use of the more punitive punishments, as a higher degree of evidence would be required. As a result, much as the NBA can levy $500,000 fines and take away second-round picks, those are not formidable deterrents.

Consider for a moment that to get Lowry via sign and trade, the Heat traded away Goran Dragic and Precious Achiuwa. Within eight months of doing that trade, they were back in the Eastern Conference finals, getting to game seven, merely one win away from their second NBA Finals appearance in three seasons. Lowry, of course, was a big part of that. And adding a #53 pick to the entirely savoury price of merely Dragic and Achiuwa would do nothing to prevent the deal, even if they knew it was coming.

In taking away these seconds, the NBA is not taking away the starting point guard on a Conference Finals team. They are taking away a chance at drafting someone like, say, J.D. Davison. Hey, sure, that’ll show ’em.