Tampering, What It Is, And How Not To Not Quite Do It

June 22nd, 2014

(originally published elsewhere)

A report from the Chicago Sun Times’s Joe Cowley is currently doing the rounds, providing as it does an intriguing look into the conduct of Chicago Bulls head coach Tom Thibodeau, and a fresh perspective on the comprehensively documented possibility of Carmelo Anthony joining the Chicago Bulls.

The report focuses on Thibodeau, and his garnering of background knowledge on Anthony from those connected with him in the past. This is a perfectly acceptable and normal thing to do. What stokes the fire in this instance, however, is that the report uses rather incendiary language that suggests things are not as perfectly acceptable as they ought be.

It starts thusly:

According to one of Anthony’s former coaches, Thibodeau has reached out to him and to several other coaches who have worked with Anthony with numerous calls.

This sentence reads in more than one way, but if the ‘him’ is assumed to be the former coach that Cowley spoke to, things are all right so far. There is nothing wrong with talking to someone outside of the NBA in an attempt to garner information about someone inside it.

Later on, however, things get more contentious:

That the Bulls are in full-court-press mode on Anthony comes as no surprise, considering center Joakim Noah courted him during All-Star Weekend in February and continued the recruitment throughout the second half of the season.

That is probably not good. Players talk to each other and certainly are permitted to do – a situation by which they could not do so at all would be patently ridiculous. But they cannot talk about certain things.

Tampering is not an especially well understood concept amongst fans and media alike, yet it is clearly defined. Section (e) of Exhibit A of the 2011 Collective Bargaining Agreement defines tampering by players, and its penalty, as follows:

(e) 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 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.

Cowley’s phrasing makes it sound as though Noah directly attempted to persuade Anthony, which would tick this box. Nevertheless, the problem here – and what is often the problem with tampering – is that there is no proof. Noah et al can just claim Cowley made it up, and that rather shuts any investigation into down.

However, Cowley goes on to mention further parties to the practice, specifically Thibodeau:

And it would seem Noah isn’t alone. Point guard Derrick Rose reportedly has gotten involved, too, and Thibodeau has used back channels to let Anthony know his addition could mean big things for everyone involved.

Articles 35(e) and (f) of the NBA Constitution & Bylaws define tampering by non-playing personnel. 35(f) defines tampering by non-playing personnel towards playing personnel as being thus:

No person may, directly or indirectly, (i) entice, induce, persuade, or attempt to entice, induce or persuade, any Player who is under contract to, or whose exclusive negotiating rights are held by, 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 (or prospective employer-employee relationship in the case of a Player subject to exclusive negotiating rights) of any other Member of the Association.

35(e) says exactly the same, except for the word “Player” is replaced by “Trainer, General Manager or any other person”, and the bit in brackets is omitted.

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. They are defined later in Article 35(f):

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 offence, 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.

Quite a bit stiffer than $50,000 and a suspension, then.

Cowley’s phrase ‘used back channels to let Anthony know his addition could mean big things for everyone involved’ could perhaps be interpreted indirectly attempting to entice a player who is under contract to another member of the association (which Anthony is until the end of June 30th) to negotiate a contract for his services. Perhaps, armed with this, the Knicks will feel as though they have the ammunition to launch a tampering claim.

Tampering claims are invariably brought by teams. The opening line in the possible penalties quoted above states that the Commissioner can act of his own volition, or at the prompting of a team who feel their employee is being tampered with, but in practice, it is almost always the latter. And in practice, the latter does not happen nearly as often as it could do.

The problem touched on above, whereby it is extremely difficult to ever prove anything, is highly problematic in tampering claims, which is why there are not that many. There have however been two recent examples. One was the very recent case of new New York Knicks President Phil Jackson, who publicly if rather vaguely alluded to the possibility of Derek Fisher (still technically contracted to the Oklahoma City Thunder as a player, and also sought after by the L.A. Lakers) joining his team as their new head coach. The other involved the Cleveland Cavaliers, who were said to have launched quite the tampering claim in the wake of LeBron James’s departure to Miami, despite initial reports that they would not do so.

Jackson was fined – given that he was filmed with the words coming out of his mouth to dozens of reports, there was not much scope for denying it. It is not known what came of Cleveland’s attempts – considering James was technically signed and traded to Miami, the Cavaliers may have been advised that this undermined any claims that they were manipulated. Additionally, the accusations of tampering in that instance all seemed to be concerned with player-to-tampering, which, as evidenced by the difference in penalties outlined above, is considered to be not nearly as gross of a violation. Indeed, this is confirmed in the previously linked report on the matter by Marc Stein:

Stern, however, has made it clear that he would not punish player-to-player interaction with the same vigor that the league threatens to punish team contact with players that they don’t employ, suggesting that it is unrealistic to try to put limits on or police player fraternization.

The Noah and Rose talks, then, may have been technically violations, but they are not policed violations. It is a different matter, however, if Thibodeau is found to be doing it.

Thibodeau clearly was not going to do anything, and has not done anything, that was direct or public with regards to enticing Anthony to his time. He is not a fool. Yet there is nonetheless a public story out there that states he has apparently done so indirectly. Whether or not it is true – and whether or not this is provable – it nevertheless could be a sufficient piece of ammunition for the Knicks to lodge a tampering complaint to the Commissioner.

If a tampering complaint is lodged with the Commissioner, it will be investigated, and the league as seen is much more inclined to act upon non-player tampering (and is much more empowered in what it can do should it find it). If it finds evidence of tampering, it can act upon it with big fines, the removal of draft picks, and, if it sees the fit, the reallocation of said money and draft picks to the team it felt had been tampered with. And there is precedent here – in 1996, the Knicks received a first-round draft pick and $1 million in a settlement with the Miami Heat when they were found to have been tampering with then-Knicks coach, Pat Riley.

This report, then, cuts a little close to the mark. If they are to get Melo at all, the Bulls will likely have to hand over some draft picks to New York in a sign-and-trade transaction. They had best not make the cost any steeper than it already is.