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.