Could Teams Clearly Ignoring Free Agency Tampering Rules Be a Problem for NBA?

After an action-packed free agency Sunday in which it seemed very clear that teams neglected to follow league rules, it seems that the current free agent timing rules aren't working, and unless they are meaningfully enforced, there is no reason to expect that dynamic to change.

A rule is a rule—unless it’s one that isn’t followed and that doesn’t lead to meaningful repercussions for violating it.

For NBA fans, the start of free agency on Sunday at 6 p.m. ET has been electrifying. The excitement actually started days before free agency began. Since the middle of last week, respected NBA journalists have reported with certainty as to where soon-to-be free agents would sign.

Twitter has been a major beneficiary of this dynamic. Fans are regularly checking their timelines for the latest updates. News companies, including Sports Illustrated, also benefit when readers crave the latest updates and analysis.

The NBA and its players, who evenly split most forms of revenue with the league and its governors, also stand to gain by the intense news cycle for free agency developments. Pro sports leagues often find offseasons to be challenging in terms of sustaining fan interest while games aren’t played. The NBA clearly doesn’t have that problem. Between the drama of the NBA draft and now free agency, the NBA seems almost as popular over the summer as it is during the other seasons.

And yet there is still a problem that the NBA ought to address: teams and players aren’t adhering to agreed-upon start dates for free agent negotiations.

Free agent timing rules that operate more like mere recommendations than strict NBA “Canon”

Let’s go back to Friday, May 24, a time when the conference finals were occurring. On that day, the NBA and the National Basketball Players’ Association issued a joint statement with respect to days and times at which teams could begin to schedule meetings with free agents and, later on, conduct negotiations.

Here is the language of that statement:

Teams and players will now be permitted to begin free agent negotiations at 6 p.m. ET on June 30 -- six hours earlier than the previous start time of 12:01 a.m. ET on July 1.

By league rules, teams also will be permitted to communicate with free agents or their representatives beginning at 6 p.m. ET on June 29 solely for the purpose of scheduling a meeting to take place at or after 6 p.m. ET on June 30.

Notice that the revised rules forbid teams and players from negotiating until 6 p.m. ET on Sunday, June 30. That means a team can’t reveal to the player or his agent the contractual terms that the team intends to offer until 6 p.m. ET on June 30. Even hints of details from an impending offer should not take place. Any discussion or exchange of financial terms would constitute “negotiation.” And, by rule, negotiation can’t begin until 6 p.m. ET on June 30.

That’s not to say the team and player (or the player’s agent) can’t talk at all prior to 6 p.m. ET on June 30. The revised rules permit teams to communicate with the player or his agent for the first time 24 hours earlier—on Saturday, June 29 at 6 p.m. ET. However, any Saturday night communication can occur “solely” for the purpose of scheduling a meeting for after free agency begins. The communication thus can’t concern any details about a forthcoming offer.

To illustrate, neither Boston Celtics president of basketball operations Danny Ainge nor anyone who works for him should have made contact with Kemba Walker or his agent, Jeff Schwartz, about the Celtics’ interest in offering Walker a contract (let alone any details about a proposed contract) prior to June 29 at 6 p.m. ET.

As to between 6:00 p.m. ET on June 29 and 5:59 p.m. ET on June 30, the only type of permissible contact between the Celtics and Walker would have been about scheduling a meeting on or after 6 p.m. ET on June 30. That type of exchange could have been transmitted in a brief text or email, such as, “Hi Kemba and Jeff, we would like to speak with you at 6 p.m. sharp tomorrow about an offer, the details for which I can’t discuss until that time, per NBA rules. Could you let me know if that time works? Thanks, Danny.”

That is clearly not what happened. On Thursday, June 27, ESPN’s Stephen A. Smith reported that Walker had informed the Charlotte Hornets and its governor, Michael Jordan, that he would not re-sign with the Hornets. Smith also explained that, according to a source, Walker was certain to sign with the Celtics. Likewise, at 8:53 am ET that day, ESPN’s Adrian Wojnarowski tweeted that the Celtics—even though the rules said they couldn’t negotiate with Walker—were somehow the “frontrunner” to sign him.

Other journalists published similar accounts, which became more and more definitive as the following 48 hours played out. At 4:38 p.m. ET on June 29, The Charlotte Observer's Rick Bonnell confirmed that Walker had informed the Hornets that he would be signing with the Celtics. Wojnarowski, The Athletic's Shams Charania, The New York Times’ Marc Stein and Stadium's Jeff Goodman all offered similar accounts that Walker would sign with the Celtics and that it would be a max, 4-year deal worth $141 million.

How could all of this have happened before 6 p.m. ET on June 29, let alone before 6 p.m. ET on June 30?

Yes, that is a rhetorical question.

The Celtics are hardly the only offenders. Timelines from journalists who cover the NBA indicate the Detroit Pistons, who signed Derrick Rose, the New Orleans Pelicans, who signed JJ Redick, and the Brooklyn Nets, who signed or will acquire in sign-and-tradesKevin Durant, Kyrie Irving and DeAndre Jordan, have also broken the timing rules. In reality, most if not every team active in NBA free agency this year probably didn’t adhere to the letter of the rules.

You might argue that none of this really matters and that you can’t blame the team or player

One understandable reaction to the commentary above would be something to the effect of, “Who cares?”

At first glance, you would have a point. As mentioned above, the anticipation of deadlines and associated rumors have only snowballed fans’ engagement in the NBA’s offseason. That interest might augment the size of the NBA’s fan base and lead to greater investment—both monetarily and emotionally—in the NBA during the rest of the year.

It is also worth pointing out that if a team knows that other teams are violating the timing deadlines, the team could become unfairly disadvantaged if it doesn’t do the same. Stated differently, adhering to rules could prove franchise-damaging. Teams that would otherwise obey the rules thus have incentives to break the rules.

The Celtics might be a good example of that phenomenon.

Ainge has known for some time that Irving, who had a problematic season with his Celtics teammates and with coach Brad Stevens, would not re-sign as a free agent. The “Irving to Nets” rumors have been reported for weeks and have proven true. The Celtics also came up short in attempting to trade for power forward Anthony Davis, whom the Los Angeles Lakers acquired instead. There were also disheartening reports that power forward Al Horford didn’t intend to re-sign with the Celtics. Those reports proved accurate, as the 33-year-old five-time All-Star has reportedly signed a 4-year, $109 million contract with the Philadelphia 76ers.

Collectively, these developments no doubt worried Celtics officials. This is a franchise that a year ago was expected to compete for an NBA title. Particularly after the Horford news broke, the Celtics seemed to be headed for a mediocre or even lottery season in 2019-20.

These events also didn’t occur in a vacuum. To that end, diminished expectations for an upcoming NBA season impact far more than the moods of team employees and diehard fans. It can also pose adverse economic consequences.

For instance, diminished expectations can lead to lower-than-projected season ticket renewals as well as less lucrative sponsorship and broadcasting deals. Further, in a highly competitive media market such as Boston, where the New England Patriots, Boston Red Sox, Celtics, Boston Bruins and New England Revolution all to some degree compete for the attention of local sports fans and regional media, gloom-and-doom over the Celtics’ upcoming 2019-20 season could eventually cause lasting damage to the franchise.

Enter Kemba Walker. The All-Star point guard for the Hornets and graduate of nearby UConn would be a natural replacement for Irving. There is some debate as to whether Walker is quite as talented as Irving. Walker, 29, is also a couple of years older than Irving and unlike Irving, Walker has never won an NBA title. On the other hand, Walker is regarded as well-liked by his teammates. He also doesn’t seem to have the kinds of personality quirks that led to troubles for Irving in Boston. It’s obvious, then, why the Celtics would have eyed Walker to replace Irving. He would bring fans hope and restore faith that the 2019-20 season would be a good one.

But the Celtics, like others who follow the NBA, realized there would be stiff competition for Walker as a free agent.

For one, under the collective bargaining agreement, the Hornets could have offered Walker a longer and far more lucrative contract than any other team. The Hornets could have signed Walker to a 5-year, $221 million deal. This dollar amount reflects the fact that Walker was recently named to the All-NBA Team, a distinction that made him eligible for a “supermax” contract worth $221 million rather than the “max” amount of $190 million. Meanwhile, the most that other teams could offer Walker is a 4-year deal worth $141 million.

Although there had been speculation that Walker would re-sign with the Hornets, that ended with reports that the Hornets were not prepared to offer him more than $160 million over five seasons. Even with the Hornets removed from the equation, the Celtics probably anticipated stiff competition from other teams with both reported interest in singing Walker and with the ability to offer him a max contract. Those teams included the Lakers, Nets and Knicks.

If the Celtics believed that the Lakers, Nets and Knicks were going to ignore the timing rules for making contact with Walker, then the Celtics might have also concluded that they would be harmed if they didn’t break the rules too.

Imagine the following. Say the Celtics actually waited until Sunday at 6 p.m. to offer Walker a contract. By that point, Walker might have already decided to sign with one of the other teams that had, in violation of rules, already reached out and built a rapport with him, his family and his representatives. Therefore, if the Celtics had waited to make a move after other teams (one of which, the Lakers, have been fined several times for tampering), it may have been too late.

The same logic applies to Walker, too. If he and his representatives had followed the timing rules and refrained from negotiating until June 30 at 6 p.m. ET, some of the teams that he would expect to offer him a max contract could have already committed to other star free agents who were, unlike Walker in this hypothetical, willing to break the rules.

Perhaps Walker would have then been left with no choice but to accept a lesser deal from other teams or re-sign with the Hornets to an offer that would have paid him less than the max (a 5-year, $160 million deal, as reportedly offered by the Hornets, would have paid Walker on average $32 million a year, whereas a 4-year, $141 million deal would pay him on average $35.5 million a year).

But NBA rules do matter and there are reasons why

The preceding section makes the case that it’s both logical and rational for NBA teams and players to violate timing rules on free agent communication and negotiation. It also suggests that the NBA and NBPA benefit from heightened interest in the NBA offseason and thus have no real incentive to crack down on rule-breakers.

That just begs a question: Why would the NBA and NBPA even negotiate timing rules if they serve no purpose? Wouldn’t it be easier if players and teams could begin to negotiate immediately after the playoffs conclude or perhaps after the Draft is conducted? Why bother to specify “6 p.m. ET” on the last Saturday and last Sunday in June if those days and times were just for show?

The answer is that the timing rules do matter. They are intended to enhance important league interests in organized and fair dealings.

Keep in mind, the NBA is a pro sports league that openly restrains how competing businesses—the 30 privately-owned NBA franchises—engage in competition. This is apparent in numerous aspects of the NBA’s business model. Take NBA anti-tampering rules, which forbid teams from attempting to induce employees who are under contract to other teams to join them (even though competing businesses in other parts of the economy routinely poach one another’s top employees). Or consider how the NBA rewards the worst teams with the exclusive right to draft the most coveted new players (even though the most coveted new members of most industries tend to be hired by the best, not worst, companies in that industry). Or take how teams share many forms of revenue, even though larger market teams typically generate more revenue than smaller market teams.

The NBA’s core goal is to maximize the overall health of the league so that it functions optimally, even if getting to that outcome might advantage certain teams and disadvantage others in how they compete. An optimal league is one where every team has a credible opportunity to compete and where fans believe the competition is genuine, as opposed to scripted or pre-determined. This is why tanking is worrisome to the NBA, as is resting players in advance of the playoffs: It creates the appearance that while the league markets itself as a competitive product, there are times when individual franchises are incentivized to suppress competition in the short-term (tank for better NBA lottery odds) for long-term gains (being awarded a top draft pick in the lottery and thus the chance to draft a potential franchise player).

The timing rules for free agency are important in that very light. They communicate to teams and players that while teams can—and should—compete for free agents, the competition should be done in an orderly way that doesn’t create the appearance of unfairness in the process. A start time for communicating and a start time for negotiation should—if followed—mean that teams operate in an equal space with respect to process. That doesn’t mean some teams aren’t advantaged in terms of financial wherewithal and available salary cap space, or desirability as a place to live, or are located in states without a state income tax, and so on. It just means that teams play by the same set of rules.

Whether and how the NBA chooses to enforce the timing rules remains to be seen. Perhaps the rules are simply unenforceable, particularly given how skilled some NBA journalists are at developing inside sources and not giving them up. If a general manager is in talks with an agent, it seems bound to be reported on Twitter.

Yet with some fans upset by the extent to which star players join hands to create “super teams”—and thus leave other teams with less heralded players—it might behoove the NBA to evaluate ways of enforcing free agent timing rules. To that end, NBA commissioner Adam Silver could make an example of several franchises by severely fining them or stripping away future draft picks. Or maybe the NBA should move up the free agency process so that it precedes the NBA draft and occurs soon after the season ends.

What’s clear is that the current free agent timing rules do not seem to be working, and unless they are meaningfully enforced, there is no reason to expect that dynamic to change.

Michael McCann is SI’s Legal Analyst. He is also an attorney and Director of the Sports and Entertainment Law Institute at the University of New Hampshire Franklin Pierce School of Law.