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Examining the NBA’s Formerly Secret Constitution

Nate Duncan looks at some of the more interesting provisions of the formerly secret NBA constitution, which was just released.

Nate Duncan

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The Donald Sterling fiasco has shined an unexpectedly severe spotlight on a document most had never heard of until a few days ago.  The NBA Constitution and By-Laws were secret league documents that suddenly captured the nation’s fascination since they governed the potential punishment of Sterling.  These documents were kept so close to the vest that not even the players’ association appeared to know their full contents, as one of Kevin Johnson’s talking points on Sunday afternoon was a need to understand the full extent of the punishment the league could levy.

But as part of dealing with the Sterling situation and perhaps as part of a new era of transparency under Adam Silver, the league unexpectedly decided to release the entire Constitution and By-Laws on Tuesday.  This was Christmas in April for CBA nerds for all the information it provided completely unrelated to the Sterling situation.  Over the past 24 hours I conducted a quick review of the Constitution, and found a number of interesting provisions.

Want to Own an Expansion Team?

You’d better not have any skeletons in the closet, at least not these days. Under Article 4(a), Applying for “Membership” to own an expansion team essentially means that you have to furnish whatever information the Commissioner of the NBA requires. The relevant language:

…the Commissioner shall have the right to require from the applicant and each Prospective Owner, and the applicant and each Prospective Owner shall furnish to the Commissioner, such information as the Commissioner shall request about the application, the applicant and each Prospective Owner, any persons or Entities with which the applicant or any Prospective Owner is associated or affiliated, and such other matters, whether or not confidential, as the Commissioner shall deem relevant in his sole discretion.

Membership is “[t]he rights, privileges,and benefits granted to a Member by the Association, including, without limitation, the right to organize and operate a professional basketball team to play in the league operated by the Association.” The Commissioner can also direct any Prospective Owner to cause essentially any other party the Commissioner deems necessary to sign “such documents in such forms as the Commissioner shall prescribe.” These include “respective controlled subsidiaries and affiliates,” but presumably could also include the Prospective Owner’s family members or pretty much anyone else the Commissioner deems relevant.

The Commissioner then conducts an investigation of the Prospective Owner that he deems appropriate. After the investigation is concluded, the commissioner submits the application to the Governors of each franchise, and a three fourths vote is required to approve the Prospective Owner under Article 4(d).

Oh, and did we mention you need money to own an NBA team? A mere application to purchase an expansion team has to be “accompanied by a certified check in the amount of $1,000,000,” the “application fee.” This is used to pay for the NBA’s vetting process, with any amount remaining after that going toward the purchase price of the team.

What About Ownership Transfers?

The process is much the same. The Commissioner may make similar demands for information and document execution of any Prospective Owner for a “transfer of membership,” i.e. a sale of the team. That is governed by Article 5, and likewise requires the approval of three fourths of the Board of Governors. The denial of approval by the Board is what ultimately sunk the Maloofs’ attempt to sell to Chris Hansen’s Seattle group.

Then there is the provision that may ultimately sink Sterling: Article 5(c). That paragraph states:

(c) Any agreement to transfer an interest in a Member or Membership, and any application requesting approval of such transfer, shall include a binding agreement of the proposed transferee and each of its Prospective Owners stating that if the transfer is approved by the Association, the proposed transferee and each of its Prospective Owners (and each of their respective controlled subsidiaries and affiliates) shall be bound by the Constitution and By-Laws, rules, regulations, resolutions, and agreements of the Association, and any modifications or amendments thereof.

Much as Sterling may complain about the unfairness of the Constitution, he and all other Owners agreed to be bound by it.

Sterling May Provide One Example on How to Lose a Team. What Are Some Others?

Under Article 13, the Membership of a Member (team) or the interest of any Owner may be terminated by a three fourths vote of the Board of Governors under quite a few circumstances. The most nebulous is if the Owner willfully violates “any of the provisions of the Constitution and By-Laws, resolutions, or agreements of the association,” per Article 13(a).

Another way to potentially lose a team is if the owner tries to sell the team or part of the team without complying with the provisions of the Constitution, which of course includes the three fourths vote. This is why an attempted transfer of ownership by Sterling to, say, a family member is unlikely. One of his best arguments to fight the sale of the team is that he never violated the constitution and that therefore the three fourths vote to remove him should not be allowed to happen, so he will want to make sure he avoids running afoul of it any further.

We also likely won’t see Sterling refuse to pay his fine, as failure to “pay any dues or other indebtedness owing to the Association within thirty days after Written Notice from the Commissioner of default in such payment” is also grounds for franchise termination, per Article 13(d).

Other grounds for termination* include betting on basketball, allowing gambling activity on owned premises, fixing games, disbanding the team, misrepresenting material facts during the ownership application process and failing to “present its Team at the time and place it is scheduled to play in an Exhibition, Regular Season, or Playoff Game.” The last of these might have been another way to oust Sterling if the Clippers’ players had in fact boycotted games. In fact, while a boycott would have been a black eye for the NBA, it might well have made excising Sterling from the league easier.

*Others have covered Article 13(d) in relation to Mr. Sterling, in which a termination vote may occur if the Owner “[f]ail(s) or refuse(s) to fulfill its contractual obligations to the Association, its Members, Players, or any other third party in such a way as to affect the Association or its Members adversely.”

What Happens After Termination?

Others have covered how the termination vote would occur. But what happens after that? “When the Membership of a Member is terminated, such Member and its assets, properties and operations shall be placed under the management and control of the Commissioner…,” who essentially takes the place of ownership, per Article 14A(a). These powers include “any management or voting rights” and the right to sell the team “at such prices and on such terms as the Commissioner shall deem reasonable and appropriate,” per Article 14A(b).

Who Gets the Money from a Sale by the Commissioner?

Mostly Donald Sterling, assuming the Clippers are in good financial health, as they are reported to be. The profits from the sale first go “discharge the liabilities and obligations to all creditors,” and second “any balance shall be remitted to the Member (or Owner).”

The Commissioner’s Powers

The Constitution provides the NBA Commissioner with extremely broad powers. A few of the more interesting:

  • “The Commissioner shall have exclusive, full, complete, and final jurisdiction of any dispute involving two (2) or more Members of the Association,” per Article 24(f). This is why you will never see one NBA team sue another, which of course would be terrible for the league.
  • Commissioner Silver is empowered to “incur any expense which, in his discretion, is necessary to conduct and transact the business of the Association…” However, that is limited to expenses that are similar to those incurred over the past five years. If they go beyond that, Silver needs approval from the Board of Governors, per Article 24 (g).  Presumably, a major expansion of the NBA’s business such as its efforts in China or India would be subject to Board approval under this provision.
  • The commissioner also can withhold any revenues due to a team if he determines that the team failed to discharge its financial obligations to the NBA or any other team. This is another reason that Owners always pay their fines.
  • He can set the date and time of all games consistent with the availability of arenas, the league’s media contracts and “what in the Commissioner’s judgment are the best interests of all Teams involved.”

Distribution of Gate Receipts for Regular Season and Playoff Games

Owners are, of course, required to provide money to help keep the NBA itself running. This amount includes providing capital contributions to the NBA of six percent of all gate receipts from regular season games. Immediately after each regular season game, a team has to send the league a check for payment of the six percent.

For playoff games, that amount increases to 45 percent of gross gate receipts. That amount then contributes to the playoff pool for the players (with an equal share going to the team’s head coach), the travel costs of each team and the referee costs. The remainder is then split equally among the teams. This provision means that the profits for a team making the playoffs are quite a bit less than is commonly believed.

Game Fixing

The penalty for fixing games is extremely harsh. If the Commissioner finds that any person fixed or tried to fix games, he must ban him or her from the NBA for life. In other words, once that finding is made the league constitution requires that individual be banned. The relevant language:

The Commissioner shall direct the dismissal and perpetual disqualification from any further association with the Association or any of its Members, of any person found by the Commissioner after a hearing to have been guilty of offering, agreeing, conspiring, aiding, or attempting to cause any game of basketball to result otherwise than on its merits.

Protesting Games

We have often heard of the idea of “protesting” the outcome of a game. Teams have 48 hours to protest the outcome of a regular season game (or until midnight of the last day of the regular season, whichever is earlier), and until midnight the day of the game to protest a playoff game.* Once a protest is received, the Commissioner immediately notifies the opposing team and each team has five days to present any relevant evidence. The Commissioner then decides the question within a further five days after receiving the evidence.

*Note that the applicable time zone is “the local time then current in the city in which the game was…played.”

Also, protesting cannot be done with complete capriciousness. The protesting team must pay a “Protest Fee” of $10,000, which is refunded if the protest is granted.

This is just a preliminary look at the Constitution, as there is of course much more to the 58-page Constitution and 20-page By-Laws. We will examine these more in the weeks to come.

Nate Duncan is an NBA analyst and attorney. He writes regular features for Basketball Insiders and chats weekly at 11 Eastern on Tuesdays.

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ICYMI: Atlantic Division

To kick off our new “ICYMI” series, Basketball Insiders’ Ariel Pacheco breaks down what you might have missed from the Atlantic Division this season.

Ariel Pacheco

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Here at Basketball Insiders, we’re introducing a new series called “ICYMI” where we’ll fill you in on some of the NBA’s biggest storylines that you may have missed, division by division. Today, we’ll focus on the Atlantic Division. 

So far, the Atlantic has been arguably the most competitive division in the league. If the playoffs started today, all five teams in the division would at least make the play-in game. But what’s gotten those teams to that point? Who or what might have flown under the radar? Let’s take a look.

Chris Boucher: Sixth Man Of The Year Candidate

After a cold start to the season, the Toronto Raptors have started to figure it out, winning 5 of their last 7 games. And a huge part of that success has been due to the rise of Chris Boucher.

In just 23.7 minutes per game, he is averaging 14.3 points, 6.6 rebounds to go along with 2.2 blocks per game. He’s also shown touch from beyond the arc, shooting 45.3% from three-point range on almost four attempts a game. On the year, Boucher also has 4 double-doubles.

Boucher has provided a much-needed spark for the Raptors. In fact, while Nick Nurse has been reluctant to do so, many have been clamoring for Boucher to start. Still, as a starter or off the bench, Boucher has done more than enough to mask the loss of both Serge Ibaka and Marc Gasol. And doing so has placed him squarely in the middle of the Sixth Man of the Year conversation.

Is Immanuel Quickley the Knicks Point Guard Of The Future and Present?

The Knicks entered the season with a conundrum at the point guard position. Former Lottery picks Dennis Smith Jr. and Frank Ntilikina have both disappointed while Elfrid Payton, a proven but flawed NBA rotation player, has only exacerbated the team’s issues, especially their need for spacing.

Enter Immanuel Quickley, a rookie out of Kentucky that has not only shown the ability to shoot, but also defend and facilitate at a high level and has developed a floater game that has become his signature.

There’s no question that Quickley is currently the best point guard on the Knicks’ roster. While his 11 points and 2.6 assists per game might undersell his play, lineups with RJ Barrett, Julius Randle and Mitchell Robinson that feature Quickley have outscored opponents by 20 points, albeit in just 30 total minutes. That same lineup with Payton in Quickley’s place have been outscored by 6 points in 371 minutes. Quickley is simply a better fit.

While the Knicks point guard situation in the last decade has been lousy, the Knicks may not have only found their point guard of the future, but of the present as well. 

Doc Rivers, the Tobias Harris Whisperer

After a disappointing year, Tobias Harris is in the midst of a bounce-back season. This should come as no surprise, however, with Doc Rivers now at the helm. Harris played some of the best basketball of his career as a member of the Los Angeles Clippers with Rivers as his head coach. Now, reunited in Philadelphia, Harris’ play has surged once again.

Harris has been an uber-efficient scoring option for the first place 76ers, averaging 19.8 points, 6.7 rebounds and 2.8 assists per game on a 61.5 true shooting percentage. Rivers, meanwhile, has done an excellent job of putting Harris in the best position to succeed. With Brett Brown, Harris was used more as a floor-spacer and spot-up shooter, something that Harris is certainly capable of — he’s shot 45.8 percent from three-point range this season — but doesn’t exactly suit his game. But, under Rivers, Harris has attacked the basket and has been far more decisive with the ball in his hands. It also helps when Harris is shooting a scorching-hot 45.8 percent from three-point range.

Where other coaches have faltered, Rivers has seemingly unlocked Harris’ ultimate ability and, with the type of player he has shown himself to be, Harris might just be enough to push Philadelphia to a title. He’s certainly got them in the conversation.

Jeff Green’s Role in Brooklyn

The Brooklyn Nets’ trade for James Harden hurt their defense and their depth significantly. They’re betting on sheer star power and their new powerhouse offense to get them far in the playoffs.

They will need role-players to step up and knock down shots, however. Jeff Green has done just that.

Shooting 48.2 percent from three, Green has been playing a bunch of his minutes at center. And, with how the roster is currently constructed, the team may rely on him to play that spot throughout the season. Green, of course, is no stranger to the situation, having played the very same role with the Houston Rockets last season. 

Since the Harden trade, he’s averaging 33 minutes per game. Green has also scored in double figures off the bench in 7 straight games. He’ll continue to play a major role for the Nets as the season goes and, if he can continue to perform at this level, Brooklyn will have someone in the rotation beyond the big-three that they can trust.

Be sure to check back throughout the week as we break down what you may have missed from the other divisions.

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NBA Daily: Khris Middleton Should Be The Bucks’ Closer

Bobby Krivitsky breaks down Khirs Middleton’s season and explains how the Milwaukee Bucks second star has earned more opportunities in crunch time.

Bobby Krivitsky

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For the Milwaukee Bucks, being one of the NBA’s best regular-season teams doesn’t mean much. In each of the last two seasons, the players and their fans have enjoyed this movie’s rising action but, as winning the title is the ultimate goal, left the theatre disappointed.

In order to get that satisfying conclusion, Milwaukee must make some changes. And, to start the 2020-21 season, they’ve tried to do just that. As expected, Mike Budenholzer is more flexible in his approach this season than in year’s past. They’ve reshaped their five-out offense, which now features someone, often Giannis Antetokounmpo, occupying the dunker spot. Those are the two areas just outside the paint along the baseline, where a player can catch the ball, take one or two steps, and dunk.

The Bucks are also pursuing their missed shots far more aggressively than they used to; two seasons ago, Budenholzer’s first at the helm, Milwaukee ranked 26th in offensive rebounding percentage, last year, they ranked 28th. But, through the first 16 games of this season, they’re snatching up 29.2 percent of their misses, good for the sixth-highest percentage league-wide.

Another meaningful difference, arguably the most meaningful, is how the team has allowed Khris Middleton to initiate the offense far more frequently at the end of games. In the final three minutes of games within five points, Middleton’s usage rate has spiked from 30.1 percent in 2019-20 to 40 percent this season.

Once again, Middleton has put together a fantastic season that’s receiving little fanfare. After he averaged a career-high 20.9 points per game last season, he’s improved to 21.8 points through the Bucks’ first 16 games. Middleton is also taking 5.9 three-point attempts per game (knocking them down at a 42.6 percent clip, the second-best mark of his career) and has increased the amount of two-point field goals he’s attempting to 9.8 per contest, making 58 percent of them. 

That combination has produced an effective field goal percentage of 60.2 percent. Additionally, Middleton has shot 92 percent from the foul line on an average of 3.1 free-throw attempts per game, giving him a true-shooting percentage of 63.7 percent. Those shooting percentages mean Middleton has a legitimate chance to join the 50-40-90 club; only eight NBA players have accomplished that feat. Middleton’s also gone from averaging 4.3 assists per game the last two years to dishing out 5.8 dimes this season and has grabbed 6.3 rebounds per game. 

Add it all up and you have a two-time All-Star that ranks fourth in the NBA in offensive win shares, fifth in total win shares and has delivered a compelling opening statement as to why he should make an All-NBA team for the first time in his career.

While it may not seem so noteworthy that one of the best wings in the NBA is off to a hot start, the way Middleton has responded to shouldering more responsibility in crunch time should serve as an ingredient to the elixir that can cure the postseason issues that have plagued them in recent seasons. Out of every player that has made more than one appearance in crunch time, which is defined as the last five minutes of the fourth quarter or overtime of a game within five points, the sharpshooting Middleton is eighth in points per game. He’s also yet to turn the ball over in that span.

 

As the pressure mounts and the clock counts down, Middleton’s approach doesn’t change from how he’s played the game’s previous 43 minutes. Whether he’s attacking off a screen from Antetokounmpo or Brook Lopez, shooting off the catch, or using a jab step to create the necessary space for him to rise and fire, Middleton knocks down his shots with the same ruthless efficiency.

That said, he could stand to be a bit more assertive in the game’s waning moments. Yes, his usage rate has jumped in the fourth quarter, but there have been instances where Middleton has taken a backseat; in Milwaukee’s recent 112-109 win over the Dallas Mavericks, Middleton managed just two shots in the entire fourth quarter, back-to-back threes that turned a two-point deficit into a four-point lead the Bucks never relinquished.

Of course, there’s a balancing act that Budenholzer must work out between Antetokounmpo, Middleton and Jrue Holiday. Late in the game, Budenholzer can’t simply take the ball away from Antetokounmpo, the reigning MVP, and Holiday, a fantastic player in his own right, needs opportunities to have an impact.

But Middleton has done more than enough to show he’s deserving of even more opportunities than what he’s taken for himself this season. And, if the Bucks want to win a title in the near future, it may be in their best interest if Middleton’s the player primarily in charge of initiating their late-game offense.

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NBA Daily: Gordon Hayward Realizing His Potential in Charlotte

No one envisioned Gordon Hayward joining the Charlotte Hornets in free agency. Not many people believed he could return to being an All-Star caliber player. Chad Smith puts the spotlight on Hayward’s resurgent season in Buzz City.

Chad Smith

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Many eyebrows were raised when Gordon Hayward decided to join the Charlotte Hornets this offseason. Most figured a return home to play for the Indiana Pacers was where the next chapter of his career would take place. But, when a potential deal with Indiana fell through, the Hornets became a reality. Maybe it was the lure of playing for Michael Jordan or just the opportunity for a fresh start where he could realize his full potential.

Either way, Hayward has proved himself to be the guy once again.

Shortly after Thanksgiving, Hayward signed a four-year deal with Charlotte for $120 million. At the time, it seemed like a heavy price to pay for a player in his 30’s that has endured so many injuries so recently in his career. Hornets fans went through this in 2019 with Terry Rozier’s sign-and-trade deal from the Boston Celtics for $56.7 million. The move for Charlotte almost felt desperate, like some sort of gamble they were willing to take.

But this signing has been different. Even before their deal, Hayward underwent a minor surgical procedure on his left foot to alleviate some discomfort he dealt with last year; the team was aware and still wanted to move forward with the deal, which speaks volumes as to how they felt about him as a player and how he would recover.

While Rozier was younger and seemed to have a high ceiling, Hayward is an established wing that has been an All-Star and the face of a franchise before. And, as we enter the quarter-mark of the 2020-21 season, it appears as though the team’s gamble has paid off quite nicely. Hayward is looked resurgent, averaging career-high numbers across the board after his injury-plagued stint in Boston.

With the Celtics, Hayward averaged 13.9 points per game, shot 36 percent from behind the arc, and got to the free throw line just 2.7 times per game. So far this season he is averaging more than 24 points per game, which is a career-best. His free throw attempts have nearly doubled and he is knocking down 43 percent of his three-pointers.

Hayward’s minutes have also increased significantly this year. And, in addition to his high percentage shooting, his 21.07 Player Efficiency Rating (PER) is a career-best.

The roster crunch at certain positions was a concern heading into the season, but head coach James Borrego has built a solid rotation that has allowed his team to maximize their potential. The Hornets have the ability to play big or go with a smaller lineup should the need arise. In fact, one of the major benefits of having Hayward is the ability to play him at multiple positions; having played alongside Jaylen Brown and Jason Tatum in Boston, Hayward is well versed in switching and matching up against both bigger and smaller opponents.

Charlotte’s defense has also been much better this year with Hayward on the floor. They rank in the top ten in terms of opponents scoring and top five in steals. Borrego has used various full-court press coverages, as well as an unusual zone defense in the half-court that eventually turns back into a man-to-man scheme.

Using different lineups, the Hornets have been able to utilize guys like PJ Washington and Miles Bridges who, in turn, have ignited their offense. If LaMelo Ball is not in the game, Charlotte can still play their two smaller guards, Rozier and Devonte’ Graham, with Hayward often serving as the primary ball-handler. With him running the offense, it allows those two to do what they do best: shoot the ball.

As a team, the Hornets aren’t exactly elite offensively. They are strong in certain areas, but they also rank near the bottom of the league in scoring, field goals made, field goal percentage and free throw percentage. In order to win close games, there are times where they need Hayward to just take over — and he’s proven on multiple occasions that he is still more than capable of doing just that. Hayward has actually been on quite a roll lately, scoring the ball at an incredible clip. Two weeks ago he put up 34 points in a blowout of the New York Knicks. Later, he had another 34-point performance against the Chicago Bulls. He also scored 39 points, including the game-winning layup, against the Orlando Magic. His season-high came earlier in the month where he posted 44 points in a victory against the Atlanta Hawks.

The individual scoring by Hayward has been impressive, but it hasn’t hampered their offensive rhythm at all. In fact, the Hornets currently average 28.3 assists per game, which is the best in the league.

It hasn’t all been sunshine and rainbows in Buzz City. The success on the court hasn’t necessarily translated to winning. After 17 games, their 7-10 record has them sitting in 12th place in the Eastern Conference standings. And, looking at their upcoming schedule, there could be some more bumps in the road.

Charlotte’s next two games are against the aforementioned Pacers. Later, the Hornets will host the Milwaukee Bucks and then head south to face the Miami HEAT, who should have their key pieces back on the floor. After that, they will have to face the Philadelphia 76ers, who own the best record in the conference. Following that game is a matchup with the red-hot Utah Jazz, who have won nine games in a row. Withstanding that rough stretch will be pivotal for this team, as they have now lost four of their last five games. These Hornets are a young group, but Hayward’s experience and the return of fellow Indiana-native Cody Zeller should allow them to win some of those games. Their season just might depend on it.

The Hornets are a fun team to watch. The jaw-dropping passes from Ball and the ridiculous highlight dunks by Bridges are must-see television, but their leader is proving he is worth every penny. Sure, Hayward has the massive contract, but he also has earned the opportunity to be a franchise player once again.

He isn’t the same All-Star player that he was in Utah. This version of Hayward is even better.

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