When NBA tampering is discussed, normally the accused owner, general manager or coach acted in an intentional way.
When Mark Cuban revealed to CNNMoney.com that he wanted his Dallas Mavericks to sign Cleveland Cavaliers star LeBron James, there was no doubt Cuban made the statement.
When Magic Johnson half-kiddingly told Jimmy Kimmel that the Los Angeles Lakers would be better off if they acquired Oklahoma City Thunder’s Paul George, Johnson’s words were clear.
When Doc Rivers gushingly compared Toronto Raptors forward Kawhi Leonard to Michael Jordan, those watching ESPN heard him say it.
If, as a new lawsuit alleges, Jerry West sought to influence Leonard’s impending free agency decision in 2019 by forming a friendship with a “friend of an uncle,” West would have done so with a goal in mind.
What happens if the person accused of tampering didn’t intend the action?
The answer was revealed on Monday when the league fined Philadelphia 76ers president of basketball operations Daryl Morey $50,000 for tampering.
Except Morey didn’t say anything. Nor did he write or draw anything.
Morey’s mistake: using an automated, third-party app that tweeted on Morey’s behalf about Houston Rockets guard James Harden. Morey was the Rockets’ general manager from 2007 to October of this year.
According to Basketball News’s Alex Kennedy, Morey’s use of the app “onthisday.me” triggered the infraction. This app automatically publishes memorable tweets. On Dec. 20, 2019, Morey tweeted about Harden breaking Calvin Murphy’s franchise assist record. On the one-year anniversary (Dec. 20, 2020) the app retweeted, with a comment and hashtag #OnThisDay, the Harden tweet.
Here is the “since deleted social media post” from December 20 that caused the NBA to fine Daryl Morey $50,000 for violating anti-tampering rules. It appears it was an automated tweet: pic.twitter.com/MMuG0SF9hS
— Alex Kennedy (@AlexKennedyNBA) December 28, 2020
Morey took the retweet down within minutes and, according to ESPN, explained to the league that he hadn’t tweeted it. The explanation didn’t persuade the NBA, an outcome which underscores the nature of the NBA’s anti-tampering rule.
The rule is found in Article 35A of the league constitution, and it sets a low bar for tampering. Under Article 35A, any attempt—no matter how innocuous or ineffectual—to entice, induce or persuade a person who is under contract with another team to join can constitute tampering. NBA commissioner Adam Silver and his staff have discretion in whether or not to find that a particular act constitutes tampering.
The NBA’s anti-tampering rule is constructed as a strict liability offense. This means a person can run afoul even if he or she lacked intent or awareness. A relatable example: getting a ticket for speeding. It doesn’t matter why the driver drove too fast. What matters is whether the transgression occurred.
This framework is designed to promote taking precautions: If a person can be punished for an innocent mistake, that person should be more careful to avoid mistakes. Although Morey didn’t intend to tweet about Harden—let alone tweet in a way that could be construed as recruiting—Morey is ultimately responsible for his social media accounts.
The NBA’s decision to fine Morey likely also reflects Harden’s unique circumstances. Harden is the focus of various trade rumors, including with the 76ers, and reportedly would like the Rockets to deal him. Rockets CEO Tad Brown notably tweeted a “thinking face” emoji shortly after Morey’s tweet. If the automated tweet had concerned a lesser player, it’s unknown if the league would have exercised its discretion in fining Morey.