June 15, 2024

Can Adam Silver veto a Damian Lillard trade to the Heat? Why history suggests not to count on it

The Damian Lillard sweepstakes took another turn on Friday when it was revealed that the NBA sent all 30 teams a memo in regards to the conduct of both Lillard and his agent, Aaron Goodwin. The memo points to public comments made by Goodwin “indicating that Lillard would not fully perform the services called for under his player contract if traded” to a team besides the Miami Heat. Goodwin told the Miami Herald’s Barry Jackson earlier in July that “truthfully, [Lillard] wants to play in Miami. Period,” while stating explicitly that he had shared that message with other teams.

The league went on to clarify that “Goodwin and Lillard affirmed to us that Lillard would fully perform the services called for under his player contract in any trade scenario,” but that any language publicly or privately suggesting otherwise “will subject Lillard to discipline by the NBA.” 

The cost of making public trade demands has always been relatively straightforward: a fine. Anthony Davis was fined $50,000 in 2019 when Rich Paul went public with his desire to be traded away from the Pelicans. The new CBA allows for fines up to $150,000, and suspensions are technically allowable. Notably, however, Paul never publicly indicated that Davis would not fulfill his contractual obligations if traded to an undesirable location, stating only to ESPN’s Adrian Wojnarowski that Davis “wants to be traded to a team that allows him a chance to win consistently and compete for a championship.”

The league-wide assumption, at that time, was that Davis, like Lillard, only had a single destination in mind. For Lillard, it’s Miami; in Davis’ case, it was the Los Angeles Lakers. He had a bit more leverage in getting his wish as he was only a year removed from free agency when he asked for his trade. Lillard signed a contract extension last offseason is under Portland’s control for three more seasons. But ultimately, we don’t know what Paul needed to say to make Davis a Laker. We have a fairly good idea of what Goodwin is saying behind the scenes because, well, he’s said it publicly as well.

What’s less clear is what the NBA can really do to punish these sorts of single-destination trade requests. Fines aren’t exactly deterrents in a world in which an NBA player just signed a $300 million contract. How much further can the league really go? Fans have even begun to wonder if the commissioner has the authority to veto a trade sending Lillard to the Heat. There are two answers to that question, the theoretical one and the practical one.

Can the commissioner block a Lillard trade?

Take a deep breath, people. If we are being absolutely technical, the commissioner does, in fact, have the authority to veto a trade between the Heat and the Trail Blazers that would send Lillard to Miami. According to Article 24, section (i)(i) of the NBA’s constitution and bylaws, “The Commissioner shall have the power to declare null and void any Player transaction made by and between Members of the Association or by and between Members of the Association and any organization outside of the Association.”

The constitution does not lay out specific scenarios in which the commissioner has the authority to nullify a transaction. It simply grants him the blanket authority to do so as he sees fit. However, there is a reason that the commissioner practically never exercises this power. It is, essentially, the nuclear option. 

Doing so risks unrest among teams, whose governors hold the right to fire the commissioner with a 3/4ths vote at any time, and the player’s association, who holds no direct influence over the power of the commissioner, but represents the league’s labor pool and would surely be furious if a player was denied his preferred destination in a trade that was agreed upon by the two teams involved. The NBA and the NBPA only just agreed to a new collective bargaining agreement. It is simply extremely unlikely that the commissioner would risk it by torpedoing a single transaction even if he does consider it harmful to the league.

But didn’t the commissioner veto Chris Paul’s trade to the Lakers?

Yes, but that was a very different set of circumstances. In 2011, then-commissioner David Stern blocked an agreed-upon three-way trade between the Los Angeles Lakers, New Orleans Hornets and Houston Rockets that would have sent All-Star point guard Chris Paul to the Lakers. However, it is important to note that Stern was not acting exclusively in his capacity as commissioner when he made that decision.

In 2010, Hornets owner George Shinn desperately needed to sell the team but could not find a buyer. In response, the league collectively purchased the team with the intent of selling it later. They eventually did so, but between Dec. 2010 and April 2012, the Hornets were owned by the NBA. That made Stern, as the NBA’s chief executive, effectively the team’s governor. 

He therefore did not block the Paul trade using the powers granted to the commissioner by the constitution and bylaws, he did so as the de facto owner of the Hornets. Lakers owner Jeanie Buss said as much in a 2021 appearance on Showtimes “All the Smoke.” “David Stern did not reject the trade as commissioner, he rejected the trade as governor of [Hornets],” Buss said. Stern himself cited basketball reasons for not making the deal. 

In fairness, Stern’s position was unique. He had a responsibility to the Hornets as their governor, but the owners of the other teams are ultimately his bosses, and in the wake of LeBron James, Chris Bosh and Dwyane Wade forming a super team in Miami, many of them would have been less than thrilled to see Paul land with the Lakers. Cavs owner Dan Gilbert said as much in a letter to Stern.

Ultimately, though, Stern had the authority as governor of the Hornets to block that trade without wielding the power of the commissionership. Silver is in no way, shape or form the governor of the Trail Blazers or the Heat. If he did decide to block a Lillard trade, he would only be doing so as commissioner. For the reasons we outlined above, that is exceedingly unlikely.

Okay, so what transactions does the commissioner actually veto?

Commissioners rarely actually use their power to block transactions. When they do, it is typically because the transaction violates either the letter or the spirit of a rule laid out within the collective bargaining agreement. There are four notable examples of this, and coincidentally, our first involves the Heat.

In 1996, the Heat agreed to a seven-year deal with free agent forward Juwan Howard. The contract called for Howard to receive a $9 million salary for the 1996-97 season, but the league office determined that because of bonuses in the contracts of Tim Hardaway and P.J. Brown, the Heat did not actually have the cap space to sign him to that contract. The deal was invalidated and Howard ultimately returned to the then-Washington Bullets.

Three years later, in 1999, free-agent forward Joe Smith signed a suspiciously small one-year contract with the Minnesota Timberwolves. In 2000, the league found out that Smith and the Timberwolves had agreed to a cap circumvention scheme that involved Smith signing three one-year contracts for well below market value so that the team could gain the Bird Rights it would need to go above the cap and re-sign him to a new, $86 million deal. The league voided Smith’s one-year contract for the 2000-01 season and stripped the Timberwolves of five first-round picks for the scandal (eventually restoring one of them).

The third instance is a bit fuzzier. In 2008, the then-New Jersey Nets agreed to trade Jason Kidd to the Dallas Mavericks. Veteran guard Jerry Stackhouse would have been part of the trade as necessary matching salary, but would have been waived as soon as the trade was completed. At the time, league rules dictated that a player could not return to his original team after being waived as the result of a trade for 30 days. Stackhouse flouted this rule by saying on the record that he would be returning to Dallas. “I get 30 days to rest, then I’ll be right back,” Stackhouse told The Associated Press at the time. “I ain’t going nowhere.”

Fortunately for the league, there was another road block in the deal. Devean George, another player involved, had the right to veto the trade because he would have lost his Early Bird Rights if he had been dealt. He did so. ESPN reported at the time that Stackhouse would not be allowed to re-sign with the Mavericks if he was in the trade. The league denied involvement, but when a revised agreement was struck, Stackhouse was not in it. Ironically, the Mavericks found another creative way to skirt the rules in making the deal by signing Keith Van Horn out of retirement only to trade him to the Nets, who paid him $4.3 million without him ever actually playing a game. The league would subsequently change its reacquisition rules so that a team cannot reacquire a player it has traded in the same season.

Finally, in 2019, the Houston Rockets signed veteran forward Nene to a creative contract meant solely to serve as salary ballast in a trade. The deal was guaranteed for only the veteran’s minimum of $2.56 million, but could have risen to $20 million over two years based on “likely” incentives, which count against a cap upon signing, but are not paid if they are not met. The NBA considers an incentive “likely” if a player (or his team) reached the benchmark in the prior season. So the Rockets gave Nene a contract with incentives based on both playing time and wins. Considering they could control his playing time, they could effectively prevent him from reaching those incentives, and because they won 52 games in the previous season, trading him to an inferior team would have meant that his team likely would not reach that milestone either. In other words, the Rockets crafted a contract that would cost them only the minimum in terms of cash, but would be worth several times that for trade purposes.

The NBA and the NBPA jointly allowed the contract to be signed… but determined that the inflated cap figure could not be used as extra outgoing salary in trades. In this instance, as with the Stackhouse trade, the decision was made to protect the spirit of the rules rather than the letter.

So what does all of this mean for Lillard?

The moves we outlined above all represented either factual or spiritual violations of very technical league rules. There is no indication at this time that a trade between the Heat and Trail Blazers would do so. While such a trade may be lopsided in terms of value, there is nothing stopping Miami and Portland from making a trade that fits within the legal parameters dictated by the collective bargaining agreement. They can match salary properly. The Heat have legally tradable first-round picks. They have tradable players. Divorce yourself from your perception of Lillard’s trade value and you’ll see that no proposed trade we know of would actually violate the CBA.

One might argue that saying publicly or privately that a player only wants to play for a specific team constitutes either literal or spiritual breach of contract, but in the memo the league sent out Friday, Lillard and Goodwin affirmed that he would fully perform the services called for under his contract regardless of where he gets traded. All this really means is that Lillard would report to any new team and play for them. Contracts can’t mandate that he play hard or cooperate within a locker room. He could use a new team as a waystation to Miami by making life miserable in the interim if he really wanted to. Even if it violates the spirit of league rules, it’s effectively unenforceable.

So even if the commissioner technically has the power to block a Lillard trade, and even if there is precedent for the league intervening on certain transactions, there is no precedent whatsoever for a veto like this. The league might try to stick its thumb on the scales behind the scenes. It might search for ways to prevent outcomes like this in the future. But if the Heat and Trail Blazers ultimately get on a trade call with the league and announce that they have agreed on a deal that fits within all of the CBA’s legal parameters, the odds of it not actually going through are infinitesimal. 

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