Why Charles Barkley's Collusion Comments Are Misguided
Charles Barkley has never been one to mince words, so it should come as no surprise that the Hall of Famer and TNT analyst would offer blunt and unsolicited advice for NBA commissioner Adam Silver. “Adam Silver should block that trade,” Barkley told TNT co-hosts Shaquille O’Neal, Ernie Johnson, Jr. and Kenny Smith on Thursday night. Barkley was referring to a hypothetical deal involving New Orleans Pelicans star Anthony Davis and the Los Angeles Lakers.
“I don't like what the Lakers are doing. It's collusion!" Barkley said.
Barkley’s sentiments followed several days of intense media coverage on the trade demand issued by Davis, through his agent Rich Paul, to the Pelicans—a request that led the NBA to fine Davis $50,000 for issuing a public trade demand in contravention of the collective bargaining agreement. As I explored in a The Crossover column earlier this week, the NBA is investigating whether other teams’ players, officials and/or owners have violated the league’s anti-tampering policy in their pursuit of Davis.
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The Lakers appear to be the focus of the Davis investigation. LeBron James, who also employs Paul as his agent, has publicly expressed a desire for his team to acquire the 25-year-old former Kentucky star. Some speculate that James has “conspired” with Paul to push Davis away from the Pelicans and toward the Lakers. Barkley stressed this point on TNT when insisting, “We cannot have players and agents colluding to stack super teams.”
Further, given the NBA recently sanctioned the Lakers for tampering in regard to Paul George and Giannis Antetokounmpo, the league’s tampering probe is no doubt scrutinizing the comments and behavior of Lakers president of basketball operations Magic Johnson and GM Rob Pelinka. Meanwhile, Johnson has reportedly made multiple trade proposals to Pelicans GM Dell Demps. Most likely, Demps will decline to trade Davis before the NBA’s Feb. 7 trading deadline in hopes of receiving a superior offer over the summer. By then, the 2019 NBA Draft order will have been determined and the Boston Celtics, who could probably offer the most appealing combination of young talent and draft picks, could trade for Davis without having to include Kyrie Irving in the deal.
Yet the Celtics and the New York Knicks—the other team most closely linked to Davis—may no longer be willing to surrender as many assets for Davis, who can sign a five-year contract extension this summer or become a free agent in the summer of 2020. Early signs suggest that unless he is dealt to the Lakers, Davis intends to test the waters in 2020.
To that point, Davis’s representatives have leaked information to journalists indicating that Davis would only sign an extension this summer if he is traded to the Lakers. This means that if the Pelicans trade Davis to the Celtics or to the Knicks, he would presumably be a mere “rental” for them in the ’19-’20 season. Such a sentiment makes it less likely that either Celtics president of basketball operations Danny Ainge or Knicks president Steve Mills would present Demps with a trade package that eclipses one offered by the Lakers. Davis, then, advances a self-fulfilling prophecy: by signaling a desire to play for the Lakers, Davis makes it less likely that other teams will trade for him and thus more likely the Lakers will acquire him.
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“Collusion” in the pursuit of Davis wouldn’t constitute “collusion” as defined by the NBA
Assume, for a moment, that some combination of Johnson, Pelinka, James and Paul are colluding in a quest to land Davis. Let’s say that they are coordinating their actions. James, for example, might be calling and texting Davis—and promising Davis what life in Los Angeles would mean for him and his career. At the same time, Paul could be dispatching franchise-damaging demands to the Pelicans and, perhaps, strategically leaking information to the media suggesting that Davis would only sign a deal with the Lakers. Maybe James and Paul are also influencing the views of Davis’s family members. On Friday, Anthony Davis, Sr., told ESPN’s Ramona Shelburne that he doesn't want his son to play for the Celtics because the franchise lacks, in his view, loyalty. Davis Sr. says was that was shown when the Green traded away Isaiah Thomas after the diminutive guard played on an injured hip in 2017.
Meanwhile, Johnson and Pelinka might be taking turns pressuring Demps into accepting a mediocre trade offer. Johnson and Pelinka could remind Demps that Davis has made it known that he wouldn’t sign with any other franchise and thus those other franchises aren’t going to offer Demps a better deal than one pitched by the Lakers.
Such a hypothetical scenario might meet the dictionary definition of “collusion.” Merriam-Webster, for instance, defines collusion as a “secret agreement or cooperation especially for an illegal or deceitful purpose.” Here, the agreement would be carried out in secret since the conspirators know that it violates the NBA’s anti-tampering policy. Also, while the agreement’s purpose wouldn’t be illegal in a criminal sense, it would violate a league contract and reflect deceit of sorts.
The dictionary definition of collusion may be interesting to apply, but it is not the determinative definition for the NBA. The governing definition is found in Article XIV of the CBA. Article XIV is the NBA’s anti-collusion provision and it forbids two or more teams from conspiring in ways that economically harm players. For example, if two or more teams agree to not negotiate with a particular player, there would be collusion (as an analogy, NFL teams allegedly agreeing to exclude Colin Kaepernick is the thesis of Kaepernick’s collusion grievance against the NFL).
Even when viewed in the most damning light, a Lakers “plot” to acquire Davis wouldn’t run afoul of the NBA’s anti-collusion provision. First, only one team would be “colluding”: the Lakers. A team obviously can’t collude with itself. Along those lines, Paul is not a representative of another NBA team. If Paul is conspiring with James and the Lakers, he would be doing so at their behest. There would be no other team in the conspiracy and thus no collusion.
Second, Davis is not harmed by efforts to bring him to the Lakers. It appears that he genuinely wants to play for the Lakers and relocate his professional life to Los Angeles. Also, if the Lakers acquire Davis, he would presumably then sign a “max” five-year, $207 million extension this summer (if Davis instead remains with the Pelicans, he would be eligible to sign a “supermax” five-year, $240 million extension over the summer—but Davis, whose trade demand referenced a desire to compete for a championship, doesn’t seem motivated by obtaining the highest possible salary).
It’s not (always or entirely) about the money and that seems true of Davis
Barkley is not alone in hoping that Silver would veto a trade of Davis to the Lakers. This sentiment has appeared on social media and reflects a long-standing critique of the NBA that star players gravitate toward “big market” teams. In turn, small and medium-sized teams tend to experience fewer opportunities to win a championship.
To the NBA’s credit, the league, along with the National Basketball Players’ Association, have pursued economic rules that incentivize superstars to remain with their original teams. This is most apparent in Article II, Section 7 of the CBA. It enables teams to re-sign stars to contracts that occupy 35% of a team’s salary cap. In contrast, other teams can “only” offer these players 30% of the salary cap. Davis signing a five-year extension with the Pelicans versus signing one with Lakers illustrates the impact of this salary cap provision: the pre-tax difference in value would be $33 million ($240 million if he signs with the Pelicans versus $207 million if he signs with the Lakers).
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The degree of difference is even more pronounced when considering the impact of state income taxes. California’s income tax rate for its highest earners is 13.3% (the highest in the nation) whereas Louisiana’s is only 6%. According to calculations by Robert Raiola, the Director of the Sports & Entertainment Group of the CPA and Advisory Firm PKF O’Connor Davies, the difference in take-home (after tax) pay for Davis over the next five years is approximately $34 million.
Money isn’t the whole story, though. If a player like Davis wants to sacrifice tens of millions of dollars in order to play for a different team, it indicates a compelling non-monetary preference on the player’s part. As Raiola and I detailed for SI in 2016, Kevin Durant forwent $30 million in take-home pay in order to sign with the Golden State Warriors instead of re-signing with the Oklahoma City Thunder. Gordon Hayward passed up millions of dollars by signing with the Boston Celtics instead of remaining with the Utah Jazz. Like for many people, maximizing money isn’t always the top priority in NBA stars’ employment decisions. The fact that they will become super rich regardless of where they sign is, of course, also relevant. No matter where they sign, they will join the wealthiest of the wealthy.
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NBA trades are rarely rescinded and significance of the collapsed Chris Paul trade
No NBA trade occurs unless it has been approved by the league office. Before there is approval, the league will confirm that the transaction complies with the numerous trade rules detailed in the CBA and in the league’s constitution and bylaws. For example, a trade must comport with the constraints of the salary cap. Most of the time, this process goes smoothly. Teams employ talented “capologists” and other personnel who understand the CBA and trade rules. They would not submit a deal to the NBA that would run afoul of the rules.
Occasionally, however, problems surface that cause a trade to be rejected or even rescinded after the fact. Over the years, trades have been undone due to failed physicals. Ten years ago, for example, the Pelicans (then called the Hornets) traded Tyson Chandler—who had recovered from a left big toe injury—to the Thunder for Joe Smith, Chris Wilcox and DeVon Hardin. After a physician had examined Chandler, the Thunder concluded that even though he had recovered, there was an unexpectedly high chance of reinjury. The Thunder thus revoked the trade. A couple of years ago, the Celtics and Cleveland Cavaliers almost saw the deal involving Isaiah Thomas and Irving undone due to uncertainties over Thomas’s knee injury. Likewise, trades have been rescinded from time-to-time when a player refuses to report or refuses to sign. In 1998, the Utah Jazz thought they had traded for Orlando Magic center Rony Seikaly, but he allegedly refused to report, thus leading the Jazz to terminate the deal (Seikaly maintained he wanted to report but that the Jazz called off the trade).
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Each of those situations involve a team trying to back out of a trade. None, then, is similar to the current situation involving Davis, the Pelicans and the Lakers. If the Pelicans trade Davis to the Lakers, Davis would pass a physical and gladly appear in Los Angeles. The Lakers obviously wouldn’t try to unwind the deal since Davis is the player they most covet.
A situation somewhat more on point is the one that coincidentally involved both the Pelicans and Lakers franchises. In 2010, the NBA—and, by extension, the ownership groups of all of the NBA’s teams—purchased the Pelicans from George Shinn. The Pelicans (then called the Hornets) had been besieged by financial problems. The NBA intended to buy the team, financially stabilize it and then sell to a local ownership group. With the league in control of the franchise, NBA commissioner David Stern faced an inherently awkward situation: he had to look out for the best interests of one team and the best interests all teams, and those best interests were not always aligned.
This conflict came to a head in December 2011, when executives for the Pelicans, Lakers and Houston Rockets negotiated a proposed three-way deal that would have sent All-Star point guard Chris Paul to the Lakers. Had the trade gone through, Paul and Kobe Bryant would have formed a formidable background for the Purple and Gold. The Pelicans would have received a first-round draft pick and four players (Kevin Martin, Luis Scola, Lamar Odom and Goran Dragic).
The trade was never approved. Stern, while acting as the person responsible for the Pelicans, rejected the proposed deal.
There are conflicting accounts as to why the deal fell apart. Cleveland Cavaliers owner Dan Gilbert sent an email to Stern complaining that if the deal went through it would have been a “travesty.” Gilbert insisted that the deal would have been unfair to he and other owners who, for the time being, owned the Pelicans. There were additional reports that other teams’ owners were furious with the trade since it would have sent another superstar to a big market team.
The NBA, however, rejected any insinuations that Stern was pressured by owners into nixing the trade. At the time, Stern released a statement making clear that his decision was not made as commissioner of the NBA but rather as the person responsible for one team:
“Since the NBA purchased the New Orleans [Pelicans], final responsibility for significant management decisions lies with the Commissioner’s Office in consultation with team chairman Jac Sperling. All decisions are made on the basis of what is in the best interests of the [Pelicans]. In the case of the trade proposal that was made to the [Pelicans] for Chris Paul, we decided, free from the influence of other NBA owners, that the team was better served with Chris in a [Pelicans] uniform than by the outcome of the terms of that trade.”
To this day Stern has dismissed the theory that owners, who were technically his boss, influenced his decision. Stern recently told SI’s Chris Ballard that he rejected the Paul trade because it would have netted an inferior return for the Pelicans. Stern went so far as to call Demps a “lousy general manager” and that Demps had been badly out-negotiated by Rockets GM Daryl Morey and Lakers GM Mitch Kupchak.
Odds of Silver blocking a trade of Davis to the Lakers are extremely low
The history of NBA trades reveals that the league commissioner, at least while acting as the commissioner (and not as de facto team president), has never rejected a deal that the trading teams wished to advance.
Never in the past, though, doesn’t mean never in the future.
With that in mind, Article 24 of the league’s constitution makes clear that the commissioner has sweeping authority to take necessary steps in order to advance the league. Article 24 refers to the commissioner’s responsibility to look out for the “best interests of the Association.” Under this authority, the commissioner has the discretion to take actions that are necessary for the health of the league. Actions taken under this power are also “final, binding, conclusive, and unappealable.”
At least in theory, Silver could invoke Article 24 to prevent the Pelicans from trading Davis to the Lakers. Silver could reason that the trading dynamic for Davis has been irreparably compromised by tampering as well as by Davis’s impermissible trade demand. Silver could also surmise that Davis, James, Paul, and Lakers officials shouldn’t be rewarded for their supposed scheme to extract Davis. From the vantage point of some, these men have conspired to essentially force the Pelicans into trading Davis to the Lakers. If the Pelicans don’t trade with the Lakers, they might to accept an inferior trade offer by a team that knows it would only “rent” Davis. Or worse, if Davis remained a Pelican until he became a free agent in 2020, the Pelicans would obtain nothing at all in return for their franchise player.
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In reality, Silver will almost certainly not invoke Article 24 to block a Davis to Lakers trade.
First, Silver doesn’t need to invoke Article 24 to block a trade. As I explained earlier this week, Articles 35 and 35A of the NBA constitution empower the commissioner to prohibit a player trade if there is a finding of tampering. While the commissioner has never imposed such a penalty, it is within his powers to do so. Use of Articles 35 and 35A would also position Silver to avoid having to rely on the more ambiguous authority contained in Article 24.
Second, Silver would be inclined respect the wishes of the Pelicans if they decide to trade Davis to the Lakers. The Pelicans presumably know what is in their best interests. If the Lakers offer the Pelicans a sufficiently attractive trade offer before by next Thursday’s trade deadline, it would be unprecedented for the NBA to tell the Pelicans, in essence, “we know better than you” and that the Pelicans must wait to see what the Celtics and Knicks offer over the summer. The role of the commissioner is not to second-guess transactions by teams. To that end, if the Pelicans could not trade Davis to the Lakers, then the Pelicans would be denied the ability to leverage one potential trading partner against another.
Third, Silver voiding a trade between the Pelicans and Lakers could be interpreted as commissioner favoritism for the Celtics and Knicks, both of which hope to trade for Davis. The Celtics and Knicks (and their fans) would, of course, love to see the Lakers shut out of the Davis sweepstakes. The commissioner taking an action that would lead to such a consequence would strike some as advantaging a small group of teams by disadvantaging another team.
Fourth, there is always the risk of the slippery slope. Once the commissioner vetoes a deal that the trading teams wish to see happen, there would be an expectation the commissioner could, and should, do so again. Some Knicks fans, for instance, might wonder why Silver didn’t veto Thursday’s blockbuster trade involving Kristaps Porzingis to the Dallas Mavericks. After all, the deal could be interpreted as damaging the Knicks franchise which could, in turn, damage the league’s image. The trade removes the Knicks’ most promising young player from their roster and indicates that the Knicks are gambling on winning the draft lottery and signing two max free agents thus summer. Celtics fans might also object to the Porzingis trade since forthcoming free agent Irving could be more inclined to sign with the Knicks, especially if the Knicks use one of the other two max free agent slots on a player Irving prefers. Silver doesn’t want to play the “I’m a better GM than the team’s GM” game. His responsibility is to oversee the league and to impartially look out for the league’s best interests.
Fifth, there is no reported evidence that the Lakers have done anything wrong. While there is speculation, as alluded to by Barkley, that the Lakers are somehow conspiring with James and Paul, that speculation hasn’t been verified. It could be the Lakers are simply trying to exploit a favorable circumstance where a superstar on another team wants to play for them. If Johnson and Pelinka fail to take advantage of this scenario then they wouldn’t be doing their jobs.
Sixth, the NBPA could object to Silver blocking a trade involving Davis. The union would stress that the free movement of players is an essential ingredient to the NBA’s bargaining relationship with the NBPA. If Davis is being essentially punished for trying to play for the Lakers, the NBPA might insist union-management relations have been damaged.
Long story short: if the Pelicans decide to trade Davis to the Lakers, it’s very unlikely the NBA would stand in the way.
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.
