The CBA Glossary
An explainer thing for the NBA's Collective Bargaining Agreement
Tampering
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.
What tampering is What tampering isn't Player-to-player tampering Examples Difference between tampering and collusion
What tampering is
What tampering isn't
Player-to-player tampering
How do you stop players - who work together, hang out together, grew up together, and who are the only people to truly understand the weirdness of each other's lives in what is supposed to be a sport focused on teamwork - from
The NBA has decided - you don't.
Examples
Difference between tampering and collusion
End-of-season certification
Whenever a player signs a contract,
extension, renegotiation or amendment - everything except a 10-day contract,
basically - the team official, the player, and the player’s agent must each
swear under penalty of perjury that everything the player is receiving from
the team or its affiliates is fully contained in the written contract. They
must also swear that there are no hidden agreements of any kind outside the
contract, including any promises about future contracts or extensions, any
extra compensation or benefits not written into the deal, or any investment
opportunities or business arrangements offered as an inducement to sign. The
idea is to eliminate any side deals or informal understandings that could
undermine salary cap rules or free agency rules. ⓘArticle
XV (Certifications) Section 1 (Contract Certification):
(a) Every Player Contract (other than a 10-Day Contract), or any
Renegotiation, Extension, or other amendment of a Player Contract, entered
into during the term of this Agreement shall be accompanied by a
certification, sworn to separately by (i) the person who executed the Player
Contract on behalf of the Team, (ii) the player, and (iii) any player agent who
negotiated the Contract on behalf of the player, under penalties of perjury,
that the Player Contract, Renegotiation, Extension, or other amendment sets
forth all components of a player’s Compensation from the Team or any
Team Affiliate, and that there are no agreements or transactions of any kind
(whether disclosed or undisclosed to the NBA), express or implied, oral or
written, or promises, undertakings, representations, commitments,
inducements, assurances of intent, or understandings of any kind (whether
disclosed or undisclosed to the NBA):
(i) concerning any future Renegotiation, Extension, or other
amendment of an existing Player Contract, or entry into a
new Player Contract; or
(ii) except as permitted by this Agreement or contained in such
Uniform Player Contract, involving compensation or
consideration of any kind or anything else of value to be
paid, furnished, or made available by, to, or for the benefit
of the player, or any person or entity controlled by, related
to, or acting with authority on behalf of the player; or
(iii) except as permitted by this Agreement, involving an
investment or business opportunity to be furnished or made
available by, to, or for the benefit of the player, or any person
or entity controlled by, related to, or acting with authority on
behalf of the player.
The same type of sworn certification
is required in certain trades involving players who are in the final year
of their contracts. Before the player’s contract is assigned (traded)
to another team, the player, the agent and the receiving team must certify
that there are no undisclosed agreements with the new team or its affiliates
concerning future contracts, extensions, renegotiations, compensation or any
other benefits or opportunities. This is meant to prevent teams from making
informal promises during trades that are not reflected in the official contract.
If the player later signs a new contract or extension within two years of
the trade, another certification must be filed confirming that no such hidden
agreements existed at the time of the original trade, and this follow-up certification
must be submitted within sixty days of the new agreement being executed. If
any of the required parties refuses or fails to provide a certification, the
NBA is given discretion to approve or reject the trade entirely. (In addition,
if the refusal comes from an agent, the players’ union is required to
take disciplinary action against that agent.) ⓘArticle
XV (Certifications) Section 2 (End of Season Certification):
(b) Prior to the assignment of any Player Contract of a player who is in
the last Salary Cap Year of the Contract (or the last Salary Cap Year before
the player or the Team has the right to terminate the Contract), the player,
the player’s agent, and the Team to which such Contract is to be assigned
shall each submit to the NBA a certification, sworn to under penalties of
perjury, that other than the Player Contract that has been assigned, or as
permitted by this Agreement, there are no agreements or transactions of any
kind (whether disclosed or undisclosed to the NBA), express or implied, oral
or written, or promises, undertakings, representations, commitments,
inducements, assurances of intent, or understandings of any kind (whether
disclosed or undisclosed to the NBA), between the player (or the player’s
agent or any person or entity controlled by or related to the player) and the
Team to which the Player Contract is to be assigned or a Team Affiliate of
the Team to which the Player Contract is to be assigned concerning (i) any
future Renegotiation, Extension, or other amendment of the Player
Contract that has been assigned, (ii) any future Player Contract, or (iii) an
investment or business opportunity or compensation or consideration of
any kind or anything else of value to be paid, furnished, or made available
by, to, or for the benefit of the player or any person or entity controlled by,
related to, or acting with authority on behalf of the player.
(c) If a player, within two (2) years after the assignment of such player’s
Player Contract, enters into a new Player Contract, or any Renegotiation,
Extension, or other amendment of the Player Contract that had been
assigned, the Team, the player, and the player’s agent shall each submit to
the NBA a certification, sworn to under penalties of perjury, that, at the time
of the assignment, other than the Player Contract that has been assigned, or
as permitted by this Agreement, there were no agreements or transactions
of any kind (whether disclosed or undisclosed to the NBA), express or
implied, oral or written, or promises, undertakings, representations,
commitments, inducements, assurances of intent, or understandings of any
kind (whether disclosed or undisclosed to the NBA), between the player (or
the player’s agent or any person or entity controlled by or related to the
player) and the Team to which the Player Contract has been assigned or a
Team Affiliate of the Team to which the Player Contract has been assigned
concerning (i) any future Renegotiation, Extension, or other amendment of
the Player Contract that has been assigned, (ii) any future Player Contract,
or (iii) an investment or business opportunity or compensation or
consideration of any kind or anything else of value to be paid, furnished, or
made available by, to, or for the benefit of the player or any person or entity
controlled by, related to, or acting with authority on behalf of the player.
Such certification shall be submitted to the NBA no later than sixty (60) days
following the execution of such new Player Contract, or any Renegotiation,
Extension, or other amendment of the Player Contract.
(d) If an agent, player, or Team fails or refuses to provide a certification
called for under this Article XV, the NBA shall have the option, in its sole
discretion, to approve or disapprove the transaction in question. In the case
of a failure or refusal by an agent, and whether the transaction in question is
approved or disapproved, the Players Association shall take appropriate
disciplinary action against the agent.
At the end of every season, the
governor and the lead basketball executive of every NBA team must certify
that, to the best of their knowledge, that they did not violate anti-tampering
rules, they did not violate prohibited negotiation rules, and they did not
receive league communications showing their team negotiated with free agents
illegally.The NBA then sends these certifications to the NBPA. If somebody
lies on one of these certifications, the NBA or a team can pursue a perjury
complaint. ⓘArticle XV (Certifications)
Section 2 (End of Season Certification):
(a) At the conclusion of each NBA Season, a Governor (or Alternate Governor)
and the executive primarily responsible for basketball operations on behalf
of the Team shall each submit to the NBA a certification, sworn to under penalties
of perjury, that the Team has not, to the extent of their knowledge after
reasonable inquiry, (i) violated the terms of Article XIV, Section 1, (ii)
violated the terms of Article XIII, Section 2, nor (iii) received from the
NBA League Office any communication disclosing that an NBA Team has negotiated
with any Free Agent prior to the execution of a Player Contract with that
player. Upon receipt of each such certification, the NBA shall forward a copy
of the certification to the Players Association.
(b) A violation of this Section 2 may be deemed evidence of a violation of
Article XIV, Section 1 or Article XIII, Section 2.
Article XV (Certifications) Section 3 (False Certification):
Any criminal complaint of perjury filed by the NBA or any Team based upon
a certification required pursuant to Section 1 above shall be against the
player, the player’s agent, and the Team official making such certification.
MAIN TAKEAWAYS:
- The more your team are over the luxury tax threshold, the more your team will pay.
- The more regularly your team is over the luxury tax threshold, the more your team will pay, too.
- Teams under the tax threshold not only avoid penalty, but get rebates, which do not change their salary cap picture but which do improve the cash position.
- In addition to the luxury tax - whose effectiveness as a payroll deterrent had dwindled in light of the Golden State Warriors' extravagant spending - the NBA has recently introduced the "apron" thresholds, which exist in addition to the tax, and which are designed to reduce excessive spending not just through extra payments but through reduced spending options. See the Aprons page for more.