Adam Silver has realized his newfound power.
In September 2019, The Athletic assessed the implications of the NBA’s decision to dramatically broaden the scope and discretion of league’s ability to investigate and punish acts of tampering and CBA circumvention under Article 35A of the NBA Constitution. The question then became what the new equilibrium would be and just how hard would the league come down on future violations.
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“I think there’s a general sense in this league that among the tools we have to ensure compliance, fining authority unto itself may be one of the least effective tools,” Silver said when the new tampering regulations were announced. “So, within the power that already has been vested in the league, there is the ability to impact competition directly by suspending executives, taking away draft picks and voiding contracts. All of those provisions are on the table.”
The official list of penalties the commissioner can impose is suspension, prohibition of completing a transaction, draft pick forfeiture or a fine of up to $10 million.
In the case of Bucks v. NBA over the sign-and-trade agreement for former Sacramento Kings wing Bogdan Bogdanovic, Silver found the team guilty of violating league rules governing the timing of free agency discussions and revoked Milwaukee’s 2022 second-round pick.
The last draft pick forfeiture penalty came in 2001, when the Minnesota Timberwolves were stripped of five first-round picks and fined $3.5 million for circumvention when they agreed to sign Joe Smith to a series of minimum deals to eventually give him a huge extension down the road. Commissioner David Stern actually broke out everything from the toolkit, suspending owner Glen Taylor and GM Kevin McHale and voiding Smith’s contract. It was a scorched earth response to the most damaging type of rule violation: a formal financial arrangement to circumvent the cap rules.
The Bogdanovic kerfuffle isn’t nearly as significant and is a relatively mild act within the modern framework of tampering. The NBA termed it as gun-jumping, participating in what is normally legal transaction activity before it was legal to do so. The league did not describe it as unfairly recruiting a player away from his team, but a violation of the renewed commitment by all teams to follow the rules as reaffirmed by the Board of Governors’ decision to implement the stricter tampering regulations in 2019.
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“This was the first round of free agency under our new rules and we saw the violation and we acted and penalized the Bucks,” Commissioner Silver said Monday. “It’s our hope that will act as a clear deterrent to any other team that is thinking of or will attempt to engage in similar type behavior.”
This is certainly an escalation from more recent precedent in the realm of tampering, looking back to when the Lakers were fined a record $500,000 in August 2017 for recruiting Paul George. The evidence that time was Lakers head honcho Magic Johnson doing it on Jimmy Kimmel Live, as well as a lengthy paper trail with LA’s GM Rob Pelinka. While Johnson may have pulled off the most obtuse act of tampering in league history, the Bogdanovic situation is pretty public as well, considering how much reporting about the deal and the recruiting process came out before free agency began. For a ship trying to sneak into town under the cover of the night, firing off a few celebratory canons in the form of media leaks probably was a bad idea.
But even if this makes the massive leap from fine to asset forfeiture, it still seems like a slap on the wrist. That could be due to the difference in the transgression taking place and how it harms team and league sovereignty. The Paul George fiasco was one team recruiting a player to leave his current team. The Bogdanovic situation, at least by the end stage, was two teams and a player engaging in mutual negotiation.
Even if the Bucks potentially recruited Bogdanovic before the Kings’ season ended, Bogdanovic was a free agent and getting the ball rolling on a sign-and-trade was only hurting the other 28 teams by taking the player off the market before the rules allowed. As the Kings made clear when they declined to match his offer sheet from Atlanta, they were more than willing to let him walk when they could get something out of it in return. And of course, the sole act of violating the rule of negotiating before free agency inherently is an attack on the system that leads to the rampant instability we saw in 2019 that prompted the major reforms.
The league at least deserves credit for being transparent with its rationale behind the penalty.
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“The penalty took into account the Bucks’ cooperation with the investigation, the absence of evidence of any impermissible early agreement on the terms of a contract between the Bucks and Bogdanovic, and the fact that the team ultimately did not sign Bogdanovic,” the NBA statement said.
This appears to be in reverse order of importance. The penalty seems to recognize that the Bucks got caught and paid the massive price of losing Bogdanovic without being able to really replace him. The league didn’t have to cross the bright line of revoking the transaction because the investigation scared the parties off from consummating it in the end. So we didn’t get the answer to the question of whether the league would cancel a transaction, but we certainly got a hint it could break glass in case of emergency.
The NBA seemed to appreciate how Bogdanovic pulling out of the deal served both as a penalty and a deterrent against future malfeasance to the rest of the league. But this is not the same thing as revoking the deal. If a deal is revoked after an investigation, free agency is already over, that player has to hit a dead market and the team doesn’t have anyone left to sign. In this scenario, the Bucks got to keep the players they were going to trade — DiVincenzo is their starting two guard after all — and Bogdanovic got even more money in Atlanta. It arguably worked out even better for the player and the team still has the assets it wanted to keep, even if the Bucks ended up waiving Ersan Ilyasova.
It’s hard to believe there wasn’t a principle agreement on the terms of the contract between Bogdanovic and the Bucks if there was a sign-and-trade agreement, but a lack of a paper trail there makes it almost impossible to verify. But it was a sign-and-trade deal. You don’t agree to the trade part without figuring out the signing part.
The league could have taken a first-round pick, though the Bucks only have control of their 2021 and 2023 picks over the next seven drafts. But the fact that the league was looking to take a second-rounder as punishment with all these caveats indicates the penalties can and will get much steeper if this deterrent doesn’t work. Silver’s predecessor was willing to rule with an iron fist, as those in Minnesota learned the hard way. The current commissioner has generally been fairly lax and congenial in his administration, but he corrected hard when he saw how teams were abusing his generosity.
Had the Bucks been fined even a few million dollars, that probably wouldn’t have scared too many teams off from bending the rules. After all, there are teams who are paying a massive luxury tax just to sign a rotation player, so paying a minimum salary or two in fines to secure a player is an easy decision. But now that tangible assets are on the table, this should be an effective deterrent.
Nobody wants to find out what happens when they make their signing or trade and get caught when it’s too late to back away. It’s easy to see the penalties climbing into Joe Smith territory, though that is a high mountain to climb. Either way, the new anti-tampering era is now real. Another test may come soon in light of Johnny Wilkes’ accusations that Clippers executive Jerry West owes him a $2.5 million payout for securing the Kawhi Leonard signing.
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Silver maintained the league’s investigation into the matter will operate from a presumption of innocence. But if they find the Clippers are guilty of this act of circumvention, it will be Silver’s Joe Smith moment. After the Bogdanovic verdict, the Clippers don’t want to find out how hard that hammer can drop.
(Photo of Adam Silver: Getty Images)
