The NBA is trying to reduce tampering, the issue is this extremely difficult to do without opening yourself up to potential litigation. The NBA is essentially an employer and the players employees. With this in mind several legal avenues are a potential concern when trying to prevent tampering. Since tampering is still a form of communication we will take a look at the legal risks.
Some potential areas we will explore:
1st amendment free speech protections
Unfair labor practices act
National Labor relations act
Sherman Anti Trust Act
In this article we will review the legal precedents if any and the risks of litigation for the NBA.
Unfair Labor Practices Act
National Labor Relations Act
Mainly both of these are based on obvious instances of discrimination or politically influenced limiting of communication. Legally it would be difficult to prove any form of communication was limited because of this.
Since tampering isn’t usually obscene in nature a employers only real argument would be that it would be a type of communication restricted as a business practice.
The easiest argument would be with Sherman Anti Trust act:
The “rule of reason” is a cornerstone of antitrust law, and stands for the principle that, in order to be illegal, a restriction must go beyond simply regulating competition and instead must “suppress” or “destroy” it. Additionally, the “nonstatutory labor exemption” is most frequently applied to professional sports leagues, allowing leagues and players to collectively bargain free from anticompetitive guidelines that would otherwise be considered a violation of antitrust laws. This Comment examines the NBA’s current anti-tampering policy as it is presently enforced and assesses steps the League can take to diminish the pervasiveness of tampering. Section II provides legal background for antitrust laws concerning anti-tampering restrictions, including the Sherman Act, the rule of reason, and the nonstatutory labor exemption. Section III explains the NBA rules regarding tampering and chronicles the League’s enforcement patterns when violations have occurred. Section IV examines the NBA’s stance on tampering and analyzes how its shortcomings in policy enforcement have led to a systemic player tampering problem throughout the League. Section V offers solutions for the NBA to reverse the upward trend in tampering and analyzes the legality and impact of such actions.
The Sherman Antitrust Act makes it illegal to have laws or contracts that place restraints on competition. Congress enacted the Sherman Act, the first and most important federal antitrust law, in 1890 Section 1 provides “Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is hereby declared to be illegal.” Section 2 provides “Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a felony . . . .” There are three elements needed to prove a violation of the Sherman Act: (1) a concerted action to (2) restrain trade, that (3) affects interstate or foreign commerce. On their faces, sports anti-tampering policies meet these criteria, as they are express agreements among the teams that prohibit players from negotiating with other teams, and the market is spread out among the states and, in some cases, countries. However, Supreme Court jurisprudence indicates that only unreasonable restraints on trade are prohibited by the Sherman Act, leaving the door open for sports tampering policies to fit into one of several exceptions to the Act. One could argue that anti-tampering policies are a collective agreement to limit trade, making Section 1 of the Sherman Act applicable. As of the writing of this article no such argument has been attempted.
Do you see any other possible legal risks to anti tampering legislation? Let us know in the comments below.
Dead money is salary being paid to non roster players or players who were previously waived and stretched.
Having dead money does not say for sure how well a team manages it's cap. However it is an interesting data point.
NBA teams by dead money
Salary Information courtesy of basketball insiders
I know some may not realize how much of an asset cap space and financial flexibility are for an NBA team but not only does this allow you to poach young talent and potentially absorb assets it allows you to not have to make short term financial decisions or surrender assets to trim payroll.
Of course this is less important in big markets such as LA, New York and to a lesser extent Miami for most of the rest of the NBA paying the luxury tax for a non contender or even worse for a fringe playoff team is a non starter.
Teams with cap room are in a tremendous position because they have not given out any ludicrous long term contracts in an attempt to be competitive more quickly.
In my opinion this is also a type of asset.
Here are the non contenders who are currently in salary cap hell.
They are only 5 million away from the luxury tax with a injury prone Reggie Jackson and Injury Prone and overpaid Blake Griffin, their wing talent is below average at best and best case scenario they are a low playoff seed.
They are 3.5 Million away from the luxury tax and with one star and several overpaid role players they are likely a bottom 3 playoff seed at best.
An aging star and an injury prone aging borderline all star on a ludicrous contract dot there roster. Then this likely 7 seed at best is also paying Chandler Parsons nearly 25 million.
Oklahoma City Thunder
Russell Westbrook is a superstar no one is arguing against paying him. Unfortunately they also owe Melo's ghost almost 30 million and have no cap space and at best 3 NBA starters if Paul George leaves as expected.
The question is with a healthy John Wall can they at least get to the conference finals? If not they need to improve their front court which is downright terrible. The PF and C positions may not be as important in the modern NBA but you still need capable starters at both positions. They are currently flirting with the luxury tax and will have a hard time upgrading the C position without shedding salary.
Wiggins is overpaid and it is debatable if he will ever be more than an average starter. Towns is a rising star but they have too much money already invested in their front court and are flirting with the luxury tax. If Butler leaves things could get dark fast.
They will have to go deep into the luxury tax just to keep their current team together. A team that couldn't even get out of the 1st round. It's debatable how they upgrade their front court in their current situation. Evan Turner's contract is downright terrible.
The above teams face a situation where they will have to either part with assets in the form of young talent or 1st round picks to shed salary or potentially decide to rebuild.
The only thing worse than being a bad team is being an expensive team trapped in the middle especially if you are in a small market.