• Villanova Sports Law Blog

Now What? The Next Steps in the Anthony Davis Saga

By Joe Manganiello:

Anthony Davis delivered what many described as a candid interview on Saturday over NBA All-Star weekend.[1] Davis, selected as an All-Star for probably the final time as a representative of the New Orleans Pelicans, answered an array of questions regarding his January trade demand while vaguely disputing harboring preferences for major market teams (Los Angeles Lakers, New York Knicks) over “smaller” markets (Boston Celtics, Milwaukee Bucks).[2] Although Davis will not be an unrestricted free agent for another full season — Davis cannot sign with any other team until the summer of 2020 — the All-NBA forward spoke with the confidence of a man who controls the destiny of the entire league because, well, he arguably does.


This is the NBA in 2019. Davis is a great player, and the seismic influence that elite talents have on wins and losses in professional basketball is unique to the sport. Davis demanding a trade with one-and-a-half seasons remaining on his contract with New Orleans, coupled with Davis’ unwillingness to sign a long-term extension with any other team besides the Lakers, is about star players exercising their power.[3] Davis’ demands truncate the Pelicans’ already limited leverage in any potential Davis trade.


It is easy to feel sympathetic for the Pelicans because their options are few and far between. The Pelicans would objectively benefit from sitting Davis for the remainder of the regular season in order to guarantee the health of the organization’s most valuable trade asset. But the NBA denied the Pelicans agency in the matter, threatening a maximum $100,000-per-game fine should Davis be openly benched for the team’s remaining 25 games.[4] In 2017, the NBA adopted an anti-rest guideline which is meant to discourage the resting of otherwise healthy players by granting NBA commissioner Adam Silver discretion to fine teams — and particularly

when the resting occurs in high-profile, nationally televised games.[5] With 25 games remaining on the schedule, the Pelicans faced a fine of $2.5 million before dealing him over the summer.[6]


Article 13(g) of the NBA Constitution prohibits “tanking,” which is the buzzword describing when teams intentionally take steps to lose games to increase the odds of landing a quality selection in the draft lottery.[7] Article 13(g) dictates that an “attempt to lose or control of the score” of a game can lead to penalties as severe as expulsion for the owner of the team.[8] In addition, the commissioner is offered broad power under Article 24 to take any necessary action to protect “the best interests of the Association,” with any such actions deemed “final, binding, conclusive, and unappealable.”[9] Furthermore, the commissioner can invoke Article 35A in order to indefinitely suspend or fine up to $1 million any non-player who is found to be “guilty of conduct prejudicial or detrimental to the Association.”[10]


While it is difficult to dispute that benching Davis would constitute tanking, the Pelicans have a legitimate gripe with the NBA coming down hard on them while looking the other way for other apparent violations of the anti-resting guideline. The Memphis Grizzlies were not reprimanded for holding Chandler Parsons, a player desperate to repair his individual value, out of games, even after the forward was cleared to play on December 21.[11] The Grizzlies claimed they preferred letting Parsons work his way back in the G League before allocating minutes in its NBA rotation to the diminished swingman.[12] Similarly, the Knicks argued that Enes Kanter was not a meaningful upgrade over their younger centers like Mitchell Robinson, which is a choice that rebuilding teams are empowered to make when the affected players count as fungible assets — and not franchise players like Davis.[13] https://twitter.com/McCannSportsLaw/status/1094993589023711232 https://twitter.com/McCannSportsLaw/status/1094992110418362369


If the Pelicans sat Davis, the National Basketball Players’ Association could file a grievance on behalf of Davis under Article XXVI of the collective bargaining agreement arguing that keeping Davis out of games is a form of punishment similar to an administrative suspension.[14] Although Davis was fined $50,000 by the NBA for making a public trade demand, he has not violated any known team rules, which does not justify a potential benching by the Pelicans.[15] Davis could be reputationally stigmatized by sitting out games because fans may hold it against Davis that he earns a substantial salary in excess of more than $25 million per season regardless of whether or not the Pelicans play him.[16]


The Pelicans are within their rights to attempt more subtle methods of limiting Davis’ individual influence on winning and losing games for the remainder of the regular season. Head coach Alvin Gentry, who, unlike former general manager Dell Demps, will remain with the organization, is allowed to reduce Davis’ minutes to minimize the odds of injury.[17] Occasional rest days for Davis are permitted because all teams are allowed to strategically rest players to some extent. Davis and the Pelicans have agreed that Davis will not play games on back-to-back days, with Davis choosing which particular games on back-to-backs he will sit.[18] However, the Pelicans would not likely be permitted to sit Davis for prolonged periods with merely a mild injury, or to play Davis for an unreasonably low amount of minutes in contrast to his ability and established role on the team.[19]

https://twitter.com/McCannSportsLaw/status/1094994658139299841 https://twitter.com/McCannSportsLaw/status/1094990334889783296


One factor that could be influencing the NBA here is the league’s embrace of the lifting of the federal ban on sports betting in the 2018 ruling by the U.S. Supreme Court in Murphy v. NCAA.[20] The NBA has requested “sports betting right and integrity fees” as part of any accompanying legislation, which can be interpreted as the NBA demanding extra cash for its

cooperation in an industry where possible corruption lurks as a significant downside risk of further investment.[21] The league will remain mindful of the optics of outright tanking or anti-competitive maneuvering as it continues to workout the specifics of making sports betting an accepted part of the NBA.[22]


References:

[1] Tim Bontemps, Candid Anthony Davis says Celtics part of trade list, ESPN (Feb. 16, 2019), http://www.espn.com/nba/story/_/id/26011206/anthony-davis-says-celtics-all-teams-pelicans-trade-list

[2] Id.

[3] Id.

[4] Brian Windhorst, NBA stressed rest rule, $100K fine to Pelicans over Anthony Davis, ESPN (Feb. 9, 2019) http://www.espn.com/nba/story/_/id/25954077/nba-stressed-rest-rule-100k-fine-pelicans-anthony-davis

[5] Jeff Zillgitt, NBA's Adam Silver can now fine teams $100K for resting healthy players for national TV games, USA TODAY SPORTS (Sept. 28, 2017), https://www.usatoday.com/story/sports/nba/2017/09/28/nba-adam-silver-fine-teams-resting-healthy-players-national-tv-games/714760001/

[6] Michael McCann, Could Pelicans Run Afoul of NBA's Anti-Tanking, Anti-Resting Rules After Keeping Anthony Davis?, Sports Illustrated (Feb. 10, 2019), https://www.si.com/nba/2019/02/10/pelicans-violate-anti-tanking-anti-resting-rules-keeping-anthony-davis [7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Zach Lowe, Ten things I like and don't like, including this MVP race, ESPN (Feb. 15, 2019), http://www.espn.com/nba/story/_/id/25995187/10-things-like-including-mvp-race-nba

[12] Id.

[13] Id.

[14] Michael McCann, Could Pelicans Run Afoul of NBA's Anti-Tanking, Anti-Resting Rules After Keeping Anthony Davis?, Sports Illustrated (Feb. 10, 2019), https://www.si.com/nba/2019/02/10/pelicans-violate-anti-tanking-anti-resting-rules-keeping-anthony-davis

[15] Id.

[16] Id.

[17] Adrian Wojnarowski, Pelicans part ways with GM Dell Demps in wake of Anthony Davis saga, ESPN (Feb. 15, 2019), http://www.espn.com/nba/story/_/id/26004117/pelicans-part-ways-gm-dell-demps-wake-anthony-davis-saga

[18] Brian Windhorst, NBA stressed rest rule, $100K fine to Pelicans over Anthony Davis, ESPN (Feb. 9, 2019) http://www.espn.com/nba/story/_/id/25954077/nba-stressed-rest-rule-100k-fine-pelicans-anthony-davis

[19] Michael McCann, Could Pelicans Run Afoul of NBA's Anti-Tanking, Anti-Resting Rules After Keeping Anthony Davis?, Sports Illustrated (Feb. 10, 2019), https://www.si.com/nba/2019/02/10/pelicans-violate-anti-tanking-anti-resting-rules-keeping-anthony-davis

[20] Id.

[21] Id.

[22] Id.


*Joe Manganiello is a first year student at Villanova University Charles Widger School of Law and a staff writer for the Sports Law Society Blog.