Why teams may be apprehensive about enforcing tampering

Spears: Elite players using their power in trade demands (1:35)

Marc Spears says the elite players are understanding the power they have in trade demands and they should act fast before it's taken from them. (1:35)

Editor's note: This piece has been updated from its original publication on Thursday after Friday's Board of Governors vote. The NBA's Board of Governors on Friday unanimously approved a series of measures to more strictly enforce compliance with tampering and salary cap circumvention.

The NBA power brokers descending on New York this week for the league's board of governors meeting have reacted to the league's beefed-up anti-tampering proposal with a mix of skepticism about its potential deterrent effect and concerns of privacy.

In conversations with numerous league officials, team owners, general managers and agents, some uncertainty was expressed about the means the NBA might use to investigate alleged rules violations. Atop those concerns for team officials is what league sources insist was commissioner Adam Silver's toughest decision in bringing new rules to a vote: an annual, random auditing of five teams' communications with rival front offices and player agents.

Some teams believe that the league is rushing the process of changing the rules.

In reaction to the blatant disregard of free-agent tampering rules and an angry owners meeting in July, NBA owners were faced with a vote on Friday that could reshape -- even if only in mechanics -- how the business of player procurement is conducted.

The push to strengthen tampering rules -- including a huge increase in the amounts of potential fines -- was born out of a historic free-agent period that witnessed several stars change teams in an acrimonious climate. The recruitment of Kawhi Leonard became fraught with charges that his uncle and advisor, Dennis Robertson, requested benefits outside the boundaries of the salary cap, league sources said.

Whatever apprehensions exist in the rank and file of the league, the league's owners made it clear at a July board of governors meeting in Las Vegas and privately with Silver that they wanted change that would help level the playing field.

Approval of the league's anti-tampering proposal required a "yes" vote from 23 of 30 teams. The league rarely brings such matters to a vote unless it is confident it has requisite support; the failure of the league's initial proposal to tweak the lottery odds in 2014 was a rare public defeat.

Small-market teams, fearing the free-agency allure of big-city rivals, might line up Friday to support the league's proposal -- as well as teams embittered by recent free-agency defections. Those who voted against the new measures would have risked the perception that they condone cheating, even if other reasons colored their decision.

Even so, teams and league officials will address questions about privacy and the specifics of enforcement.

Silver appears to have put himself in an enviable political position by thrusting the onus onto owners. Even if he fails, he will still be seen as having tried to clean up tampering.

Silver has insisted the league's intent is not to establish a police state. In meetings and direct conversations, the message has been to regulate each other: behave as partners, not pirates. Silver wants the owners accountable for creating a culture of compliance, yes, but the league recognizes its golden era of popularity has come at the cost of a viciously competitive and sophisticated era of free agency.

Some in the league wonder if the proposals would mark any meaningful change.

The reality is, Silver already has enormous authority to investigate allegations of tampering -- including reviewing text messages and other forms of communication -- and snatch draft picks if such an investigation reveals evidence of malfeasance. (That power is outlined in, among other places, Articles 24 and 35a of the NBA's constitution and bylaws, where it is worded in expansive and vague language similar to that used in the proposals that are at issue this week in New York.)

The $6 million fine for "unauthorized agreements," including side benefits designed to circumvent the salary cap, is already included in the NBA's collective bargaining agreement.

The new set of proposals would require governors and top basketball operations officials to "certify annually" -- i.e., sign documents -- that they did not tamper with free agents ahead of the July 1 start date of free agency or offer any "unauthorized benefits" to free agents. That sounds new and foreboding -- almost like a loyalty oath -- but top officials already sign documents each season vowing to abide by all NBA rules and regulations, sources say.

In substance, the changes really amount to:

  • an increase in fines (from a maximum of $5 million for tampering to $10 million) that mostly mirrors the increase in franchise values and player salaries over the past two decades;

  • allowing Silver to (in theory) take draft picks as punishment for any "conduct detrimental to the NBA";

  • the annual random audits of five teams and a brief mandate that "where cause exists" the league may "undertake more in-depth investigations";

  • the requirement that top team officials save communications with agents for one year.

For the most part, the increased fines have not unnerved teams. The sort of tampering at issue -- the kind that leaves angry rivals in its wake -- concerns the league's best players, and most teams will absorb a $10 million fine if it means acquiring one of those players in his prime for several seasons. Rarely is any team going to file an allegation of tampering concerning a role player.

Snatching picks is the punishment teams fear -- the one that hurts. The league already has authority and discretion to do that. Some front-office executives believe these proposals would create more compliance had the league included language that the forfeiture of at least one first-round pick was automatic -- not discretionary -- in any case of proven tampering. The NBA did not take that step.

(The league can, in theory, invalidate contracts, but that creates a hornet's nest of questions -- not the least of which is, "What happens if a contract is invalidated in mid-July and there is no cap room left around the league?")

Perhaps the act of proposing this new set of rules is a signal Silver will be more willing to levy the harshest punishment possible in the event investigators can prove tampering. Even if the letter of the law doesn't change much, the discussion and attention surrounding tampering might cause some minor behavioral changes. If it eliminates the most brazen flaunting of the timing rules -- deals reported prior to the starting gun -- and sends governors fleeing from the very idea of circumventing the cap, the league would likely count just that as a success.

Pre-June 30 discussions between teams and agents would migrate away from text messages and emails if the league gets the right to audit five teams per year at random. That one clause will likely engender a lot of discussion Thursday and Friday, league sources say. Teams are curious: What would an audit entail? How much access would the league get to the cell phones of GMs and governors? What happens if officials go looking for tampering and find other information of interest -- intel on players and coaches, financial plans, one off-color joke?

Silver can cull texts and emails and call records, but this isn't the NSA: The NBA won't be monitoring calls, so communications promise to move exclusively to phone and face-to-face conversations. It would be nearly impossible for any investigator to prove that a phone call between a GM and an agent in mid-May had anything to do with an impending free agent. It could concern another client of that agent already on the GM's team; a prospect in the upcoming draft; or any number of unrelated matters.

"I don't think he should have any right to get into my phone," one GM told ESPN. "I wish my owner would vote no, but I doubt he will. You'll only make yourself a target for investigation if you do."

Some in the league wonder if the proposals would mark any meaningful change. (This could, bizarrely, engender support: Why vote against the league, and risk alienating it, if you think the proposal doesn't matter?)

Some executives and agents are already planning to wean themselves off electronic communication --- including less traceable communications messaging services like WhatsApp and Telegraph. Some front offices scrubbed devices of those communications, too, and insist this now: Only the reckless will get caught, and perhaps that's how the NBA wants it.

"I don't think [Silver] should have any right to get into my phone. I wish my owner would vote no, but I doubt he will. You'll only make yourself a target for investigation if you do." NBA general manager to ESPN

Trust will become paramount, and general managers and agents with history and relationships will rely on those in clandestine talks more than ever.

The NBA had considered rules that mandated team executives immediately report player agents who approach them for conversations about pending free agents before June 30, but changed course, league sources told ESPN. In conversations with league executives, the NBA realized that pressure on teams would complicate and compromise relationships with agents.

Front-office executives insist that there's no motivation for them to turn in high-profile agents with whom they do volumes of business, even if they know of a deal done prior to free agency. For starters, it could destroy a relationship with someone who controls significant NBA talent -- and risk putting your own team under scrutiny for its machinations.

Teams and agents both have an incentive to know the lay of the land before free agency starts. As one prominent agent told ESPN: "There's a big difference between having conversations about how a team wants to build its roster, what it prioritizes in free agency and whether they have interest in your player -- or having a deal done on June 20. Both sides are in the information-gathering business; that's the nature of the job."

Teams with a better grasp of that information at the draft have an important tactical advantage in making trades. That is one reason several teams have suggested starting free agency before the draft -- and officially allowing teams to begin negotiating with free agents after the end of the NBA Finals.

The Houston Rockets last year presented a revised calendar with free agency before the draft, but only 10 teams supported it when the NBA polled teams in July, sources have told ESPN.com. (Several teams responded in that polling that they did not care either way, and proponents of the change are hopeful the discussion will continue, sources say.)

Most teams and agents discuss business before the Finals now, and will still do so even if these proposals pass. The league justifiably has qualms about such discussions occurring as the free-agent-to-be in question competes in a high-stakes playoff series -- especially if the chatter filters down to the player -- but squashing it is unrealistic.

The same is true for player-to-player recruitment. The league has never policed that. The new proposals would include a renewed prohibition of one player inducing another player under contract to request a trade, but enforcement would be difficult. In the future, the NBA wants to pursue cases if it can be proved that a player has acted at the behest of his organization to interfere with a player on a roster elsewhere, league sources said.

The NBA is not going to find a perfect workable solution. Friday's vote will not end the discussion about what the league's free-agency landscape and calendar should look like. But it is a starting point, and the results might hint at what comes next.