Could Pelicans Run Afoul of NBA's Anti-Tanking, Anti-Resting Rules After Keeping Anthony Davis?

Despite a whirlwind of rumors before the trade deadline passed, Anthony Davis will remain in New Orleans until at least this July. But with the Pelicans likely trying to maximize their draft pick, could they run afoul of the league's anti-tanking or anti-resting policies?

With the NBA trading deadline having passed and with Anthony Davis still on their roster, the New Orleans Pelicans find themselves in an awkward situation with enormous implications for the next several seasons.

Davis, who is under contract through the 2019-20 season, has made it clear that he intends to leave the Pelicans as a free agent in the summer of 2020. Whether Davis is still a Pelican at that time is a separate matter. The Pelicans could, and most likely will, trade Davis this summer, with the Los Angeles Lakers, Boston Celtics and New York Knicks all expected to make competitive offers. Alternatively, the Pelicans could wait to deal Davis until closer to the trade deadline in February 2020. Or the team could simply hold onto Davis for the next season and a half, though he would then leave as a free agent without an accompanying return.

Davis’s interest in exiting New Orleans, as he relayed to Pelicans general manager Dell Demps through his agent Rich Paul, is connected to the Pelicans’ short- and long-term plans. The Pelicans currently hold the ninth worst record in the NBA and are almost certainly headed for the 2019 NBA draft lottery. Between Davis’s wishes and the Pelicans’ struggles, Demps and Pelicans coach Alvin Gentry have two powerful reasons to sit Davis.

First, sitting Davis would protect the value of the franchise’s most valuable asset. Davis is one of the five best players in the NBA and, if healthy, would net a massive return in any trade. An injured Davis or one whose play unexpectedly tails off would be a less valuable asset.

Second, the Pelicans would improve their odds in the lottery by winning fewer games. The Pelicans are 13th out of the 15 teams in the Western Conference. With 25 games remaining in the regular season, the Pelicans are six games behind the Los Angeles Clippers for the eighth seed. Although it is mathematically possible for the Pelicans to still make the playoffs, the odds are somewhere between slim and none. Their better long-term play would be to drop further back in the standings and thus improve their chances of moving up to secure a higher pick in a what is expected to be a top-heavy 2019 NBA Draft.

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From the NBA’s perspective, the preceding two paragraphs are utter sacrilege. The league is categorically opposed to teams consciously taking steps to reduce their chances of winning. To that end, according to ESPN’s Brian Windhorst, the NBA notified the Pelicans last week that if they sat Davis for the remainder of the season, the team would be fined $100,000 per missed game. With 25 games remaining on the schedule, the Pelicans would be fined $2.5 million before dealing him over the summer.

The league’s threatened penalty is consistent with a guideline adopted by the NBA in 2017 to address teams’ practice of resting stars. Under the guideline, teams are discouraged from resting healthy players. Also, NBA commissioner Adam Silver has discretion to fine a team at least $100,000 for resting a healthy player—particularly in a “high-profile, nationally televised game.” As explained below, Silver could rely on other powers contained in the NBA constitution to impose additional penalties on the Pelicans. This means that if the Pelicans accepted a $100,000 per game fine as a de facto insurance policy to protect Davis’s health, Silver could punish the team in other ways, including by suspending team officials.

Davis won’t be sitting. After receiving a warning from the league, Demps announced that Davis would play. Demps explained that the Pelicans “want to preserve the integrity of the game and align our organization with NBA policies.”

It does not appear that Demps challenged the NBA on the team’s arguable right to rest a player in the unique circumstance where the player has unambiguously informed his team he plans to leave. Demps might have wondered why the Memphis Grizzlies could hold out Chandler Parsons even after the forward was cleared to play on Dec. 21. The Grizzlies did not reportedly suffer an accompanying league punishment. To rebut that point, one distinction is that Parsons is a reserve player who even if suited up for the Grizzlies might not have played much, if at all. Davis, in contrast, is a franchise player whose presence on the court will substantially impact whether the Pelicans win or lose.

The NBA’s power and rationales to compel teams to play healthy stars

The NBA Constitution governs the legal relationship between teams, owners and the NBA. Article 13(g) clearly outlaws “tanking”, the colloquial word used to describe teams that intentionally take steps to reduce their chances of winning games. Article 13(g) dictates that an “attempt to lose or control of the score” of a game can lead to an owner being expelled from the league. In addition, the commissioner is empowered under Article 24 to take any necessary action to protect “the best interests of the Association.” Any such actions are “final, binding, conclusive, and unappealable.” Further, the commissioner can invoke Article 35A, which permits the commissioner to indefinitely suspend or fine up to $1 million any non-player who, in the commissioner’s opinion, is “guilty of conduct prejudicial or detrimental to the Association.”

In short, the commissioner possesses multiple sources of legal authority to punish teams for sitting healthy stars and trying to tank.

Despite these provisions, a number of teams and their leaders have been accused of tanking, including by resting healthy players. Sometimes those leaders later own up to having pursued a “lose now” strategy.

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Take the 1996-97 Boston Celtics. They were bad even in the best of times but went a step further by intentionally resting their better players and playing inferior ones. Their goal, of course, was to lose even more games and increase their odds of landing the first pick in the 1997 draft. That first pick would be Wake Forest star center Tim Duncan, who went on to become a Hall of Famer. Other players in the 1997 NBA Draft were far less impressive.

The 96-97 Celtics “succeeded” in their plot by securing the league’s worst overall record. They had a 36% chance of landing the first pick. However, the lottery’s ping pong balls shined instead on the San Antonio Spurs, who had a 22% chance of drawing the top pick. With Duncan joining David Robinson to become one of the most formidable frontcourts in NBA history, the Spurs went on to win the NBA championship in 1999 and the franchise won four other championships over the following 14 seasons. Meanwhile, the Celtics remained a perennial loser until the early 2000s.

In 2001, M.L. Carr, who had been the Celtics’ coach, executive vice president and director of basketball operations during the 96-97 season, acknowledged to The Boston Herald’s Mark Cofman that losing games for Duncan was “part of the orchestration.” In 2013, Carr elaborated on that point in a revealing interview with ESPN’s Jackie MacMullan. “I was bringing in guys like Nate Driggers and Brett Szabo . . .  I remember one game in particular when David Wesley was hitting jump shots and 3-pointers all over the floor—I had to get him out of the game," Carr admitted. "It was a joke. But the idea was not to make a move that would help us too much."

The NBA’s efforts to curb tanking and related consumer litigation

Tanking reveals how the competitive interests of an NBA team and those of the league are not always aligned. A team could logically conclude that it is more likely to win more games over the course of multiple NBA seasons if it loses more games in any one season.

Even with the NBA recently altering its lottery format so that the odds of landing picks are more evenly divided among non-playoff teams, many teams remain incentivized to lose if it could mean a credible chance at landing a franchise player. Consider the upcoming 2019 NBA Draft, with presumptive No. 1 pick Zion Williamson seen as a potential superstar. A team like the Pelicans would rather have a 10.5% chance at landing Williamson (which they would have if they finish with the fifth-worst record) than a 4.5% chance (which they currently have as the team with the ninth-worst record).

Yet for the NBA, tanking runs afoul of its business model and, arguably, its legal representations to fans. Even though a team might correctly intuit that the franchise would win more games in the long-run by losing more games in the short-run, the NBA is premised on delivering competitive basketball games where teams always try to win. The league also markets games as competitive contests. The NBA is not like the WWE where fights are to some extent scripted and the winner is pre-determined. The NBA, like the other major leagues, is a competitive pro league.

The NBA has occasionally punished teams for overt acts of tanking. In January 1982, ill-advised remarks by San Diego Clippers owner Donald Sterling during a luncheon were captured on an audio recording. Sterling had been caught saying, “maybe I have to lose the battle to win the war. ... I don't think we'll have to work that hard to have the worst record in the league. ... We must end last to draw first to get a franchise-maker.” Back then, NBA draft order was determined solely by inverse order of record, meaning the worst team always landed the top pick.

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The NBA commissioner at the time, Larry O’Brien, took action. He invoked Article 35A and fined Sterling $10,000 for conduct detrimental. The Clippers would finish the 1981-82 season with the second worst overall record. They then drafted DePaul forward Terry Cummings with the second overall pick. Meanwhile, the defending NBA Champion Los Angeles Lakers, which had acquired the rights to the Cleveland Cavaliers 1982 first-round pick and which turned out to be No. 1 overall, selected UNC forward and future Hall of Famer James Worthy while the Atlanta Hawks drafted UGA forward and future Hall of Famer Dominique Wilkins third overall. Sterling, of course, went on to cause the NBA many other headaches, including moving the Clippers to Los Angeles over league opposition and, most infamously, making racist remarks that were captured on an audio recording. 

The NBA has also tried to discourage teams from tanking individual games. In November 2012, Spurs coach Gregg Popovich reasoned that his team would be well-served for the remainder of the season by him resting most of his starting lineup for the final game of a six-game road trip. Popovich sent home Duncan, Tony Parker, Manu Ginobili and Danny Green while the rest of the team showed up for a game in Miami. The NBA commissioner at the time, David Stern, fined the Spurs $250,000 for violating the best interests of the NBA. Silver described Popovich’s actions as a “disservice to the league and our fans.”

The Spurs incident also led to a consumer lawsuit. Miami Heat ticketholder Larry McGuinness sued the Spurs, arguing that that the team had breached Florida's Deceptive and Unfair Trade Practices Act. McGuinness, an attorney, claimed that the Spurs had engaged in a bait-and-switch, in that the team marketed Duncan and other stars in hopes of (among other things) attracting fans to purchase tickets and yet those players were home resting in San Antonio. McGuiness further emphasized that ticket prices to the Heat-Spurs game were higher than those of other Heat games because the Spurs were among the best teams and thus commanded a premium price. From that lens, McGuinness stressed, the Heat’s justification for the higher price was nullified by Popovich’s decision to rest his stars.

The lawsuit was ultimately dismissed. The core reason: a ticket to a Heat-Spurs game only guarantees the ticket holder the right to watch the game from a particular seat. It does not guarantee the right to watch specific players on the Heat or Spurs.

The complicating role of legalized sports betting and a healthy NBA star being kept out

As the NBA reviews the Davis matter, the league might also be concerned about the impact of healthy stars missing games due to the relationship between those games and sports betting.

More so than other leagues, the NBA has embraced the lifting of the federal ban on sports betting as ruled by the U.S. Supreme Court last year in Murphy v. NCAA. As individual states determine whether to legalize sports betting, the NBA has requested “sports betting right and integrity fees” as part of any accompanying legislation. These fees would reflect the derivative aspects of sports betting (i.e., bettors and casinos free ride off of games produced by the NBA and its players) and the integrity compromising aspects of sports betting (i.e., more betting means more opportunities for bribed players, coaches and referees and thus a greater need to monitor them).

With the NBA trying to carefully incorporate sports betting into its culture, league officials are surely mindful of the optics of teams resting healthy stars and how that practice could be misused to alter the outcomes of games.

Important interests of Davis and role of the NBPA

At first glance, Davis resting for the remainder of the 18-19 season might not seem damaging to him. For one, Davis would still be paid. Also, avoiding games would decrease Davis’s chances of suffering a serious injury that could harm his financial prospects. Davis is poised to sign a five-year, $207 million contract extension this summer if he is traded to another team; if for some reason he changes his mind on the Pelicans, he could instead sign a five-year, $240 million deal with New Orleans. If Davis is hurt over the last couple of months, such a deal might not materialize. Missing games would also allow Davis to avoid the “wear-and-tear” of game action.

Yet missed games could nonetheless damage Davis’s professional interests as an NBA player and interfere with his career.

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First, judges have found that healthy players missing games can amount to “irreparable harm,” meaning the kind of harm that cannot be adequately remedied by money damages. In Dallas Cowboys running back Ezekiel Elliott’s ultimately unsuccessful litigation against the NFL over his suspension, U.S. District Judge Amos Mazzant, III, ruled that Elliott missing Cowboys games constituted irreparable harm. Judge Mazzant noted that Elliott would have been “deprived of the ability to achieve individual successes and honors” and help his team win games. The judge also emphasized how professional athletes often have a “short and precarious” window of life to play at the highest level, and ineligibility from games takes away their chances. 

Here, Davis missing the last two dozen games of the 18-19 season would deprive him of games in which he could produce statistics that advance his legacy. For instance, Davis is currently ranked 77th all-time in blocked shots with a total of 1,096 blocks. Given that he is only 25 years old and could play another decade—or more—Davis could climb high on the all-time block list.

During his career, Davis has averaged 2.4 blocks per game and, until this unusual season, had played on average 68 games per season. This means if Davis plays another decade and continues to 2.4 blocks per game and play in 68 games per season, Davis would add about 1,632 blocks to his total. He would then have a total of 2,778 blocks, which would place Davis 8th all time in the NBA, right between the impressive company of Patrick Ewing and Shaquille O’Neal. To be sure, there are a ton of “ifs” in that analysis and averages usually change, but the larger point is clear: missing games would deny Davis the chance of not only helping his team win but accumulating numbers that define his legacy.

Davis could also be reputationally stigmatized by sitting out games. Even if fans and media would know that Davis sitting was at the behest of the Pelicans, a healthy player being kept out could lead some to wonder why he is being paid to not play. Davis’s desire to compete might then be called into question, particularly if the dominant narrative became that Davis was more or less comfortable with sitting out Pelicans games. That kind of discussion would not improve Davis’s marketability and could potentially even disadvantage his prospects for lucrative endorsement deals. Consider how Parsons reacted to being excluded from the Grizzlies: he openly complained to media that he was being held out despite good health.

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As detailed above, the NBA made clear to the Pelicans that the franchise would suffer if it sat Davis. Yet if the Pelicans went ahead and sat Davis, the player and his union, the National Basketball Players’ Association, could file a grievance under Article XXVI of the collective bargaining agreement. Article XXCI refers to team rules and team discipline. The NBPA could argue that Davis being kept out of games is a form of punishment akin to an administrative suspension (where an employee is excluded from work activities but still paid).

To be sure, the Pelicans have substantial authority over who plays in games. No grievance arbitrator would endorse players grieving over lack of playing time. Yet here, the team would be sitting its best player who is healthy and, though fined $50,000 by the NBA for making a public trade demand, has not violated any known team rules.

Challenges for league in monitoring Davis situation

The Pelicans claim they will play Davis the rest of the season. Still, expect the NBA to be watching closely. Excluding a player from a team’s final two dozen games would be the most dramatic and obvious form of resting and, correspondingly, tanking.

Yet there are more subtle methods available. For instance, if Davis suffers a mild injury, the team could hold him out much longer than necessary. Alternatively, Gentry might play Davis fewer minutes and thus decrease the odds that Davis suffers an injury. Gentry, however, would need to be careful not to reduce Davis’s playing time to such an extent that the NBA regards the reduction as violating the spirit of the anti-resting guideline or undermining the anti-tanking policy.

The Pelicans could also “rest” Davis in the same vein that playoff teams occasionally rest players prior to the playoffs. In 2017, FiveThirtyEight’s Todd Whitehead studied the increased frequency of NBA teams sitting out healthy players simply to rest them. The study was conducted prior to the NBA adopting the anti-resting guideline, but it’s likely we’ll still see periodic resting of stars. The Pelicans won’t be able to sit Davis every game but keeping him a game here and there might fall within a permissible range. We’ll see.

The Crossover will keep you updated on the Davis situation.

Michael McCann is SI’s legal analyst. He is also Associate Dean of the University of New Hampshire School of Law and editor and co-author of The Oxford Handbook of American Sports Law and Court Justice: The Inside Story of My Battle Against the NCAA.