Senior Writer

Snarky letter for LeBron's shady exit? Maybe try an injunction


As much as I enjoyed Dan Gilbert's e-mail rant after LeBron James set sail for Miami, that wouldn't have been my only response if I owned the Cleveland Cavaliers, a basketball team whose value could plummet as much as $250 million, according to some experts, due to James' departure.

Did LeBron, Wade and Bosh have some illegal contact before joining forces? (Getty Images)  
Did LeBron, Wade and Bosh have some illegal contact before joining forces? (Getty Images)  
Sure, I would've sent the same kind of snarky e-mail to rally support among my team's fan base -- support that obviously will be needed to persuade those tortured people to pay for tickets, parking, concessions and memorabilia in the After LeBron era. But I would've done something else in an effort to help my team recover from the swift kick to the solar plexus that James delivered with his stunningly crude departure.

As I'll explain, it probably wouldn't have worked. But at least it would've shone the light of real life and actual legal principles on the NBA's subversive culture of back-channel deals -- not to mention winks, nods and nefarious handshakes.

At 9:30 p.m. ET last Thursday night, within minutes of James' "decision" to take his talents to South Beach to join Dwyane Wade and Chris Bosh, I would've had an army of lawyers lined up at U.S. District Court in Cleveland to request an injunction to prevent James from negotiating and signing with the Heat. As the owner of a business that will be forever and irreparably harmed by James' potentially tamper-ridden departure, this would've been my best immediate recourse in the smoke-filled room that is the NBA.

"Legally speaking, they could have and it would have been a relatively simple motion to do that," said Oran Whiting, a Chicago-based sports and entertainment lawyer who has been involved in NBA tampering litigation in the past. "Honest to God, I would've thought that it would've been successful. They could've gotten an injunction on this."

Would a lawsuit have been successful in keeping James in Ohio? Far from it; you can't force anyone to sign a contract they don't want to sign or work where they don't want to work. It wouldn't have been successful at all, in fact, and here's why: Commissioner David Stern defended the actions of James, Wade and Bosh on Monday in Las Vegas, and by doing so defended the corrupt system that resulted in the three best players on the market winding up on the same team -- by chance and arm's length negotiations, we are led to believe.

Stern said the players were "totally within their rights" to perpetrate this ambush on a nearly $4 billion industry, and he would know. Stern, under the very collective bargaining agreement he wants to set aflame like Clevelanders are doing to LeBron jerseys, is the sole and final arbiter of all matters tampering.

If I owned the Cavaliers -- or another team trying to compete against the Heat, Lakers, Celtics, Knicks or the other bullies of basketball -- I would've enjoyed testing that authority in a court of law. If nothing else, a lawsuit -- or lots of them -- could have pushed this too-good-to-be-true transaction out of the shadows of the NBA's permissive culture and before an impartial judge. The proof would've been in the court transcripts and depositions: The NBA's collectively bargained tampering policy is badly in need of revision.

"You sue everybody," said Whiting, who has represented NBA team personnel in tampering cases. "That's what happens."

While Stern came out swinging Monday after the Board of Governors meeting against James' "ill conceived" television announcement and against Gilbert's rant (he fined the Cavs $100,000), sources say he is open to changes in the league's tampering rules. I should hope so. Though he came out strongly on the side of players and their rights as free agents, one person familiar with Stern's thinking said the commissioner is intrigued by the idea of an NFL-style franchise tag, which gives teams more protection against losing top players.

That's great, but such changes will do no good for the Cavaliers and Raptors and will do nothing to restore the competitive balance that has been trivialized by three friends who wanted to play on the same team -- and evidently spoke openly among themselves about it for months, or even years, while under contract with employers paying them millions. Such conversations among friends are almost impossible to police, especially when everybody knows what the end result would be.

"Who knows what goes on behind closed doors?" said Gabe Feldman, a sports law exert and director of the prestigious Tulane University Sports Law Program.

But the $100,000 Gilbert will pay to the league for his vitriol would've been better spent on attorney fees. Based on conversations with sports law experts and key figures on both sides of the tampering debate, here's how a legal case presented by the Cavs would've taken shape:

The Cavs would've filed an motion in federal court asking a judge to prevent James from negotiating and signing with Miami based on two alleged violations of contract law. First, the team would've alleged breach of contract by James based on the idea that he engaged in conversations with members of other teams about playing for them while still under contract with the Cavs. Second, the organization would've alleged that Wade, acting as a recruiter for the Heat, committed "tortious interference" with James while both were under contract with their respective teams.

Before you cringe at the term "tortious interference" and stop reading, know that the laymen's definition is to mess with an employee of a competing business while he or she is under contract -- and know that this kind of thing happens daily in the NBA, which you spend your hard-earned money to watch.

The basis of such claims would be extremely difficult to prove, one of many symptoms of the NBA's competitive balance being broken. Through depositions and possibly the subpoena of e-mails and text messages (Yo Pat, talk to ya on the 1st lol ;)), lawyers representing the Cavs would've sought to prove that conversations among the three players amounted to a violation of James' contract and interference on Wade's part to lure a player under contract with another team. Certain questionable meetings and conversations already are a matter of public record, as outlined in the Cleveland Plain Dealer Sunday. As far back as November, the Plain Dealer reported, James attended a meeting with Heat president Pat Riley and Hall of Famer Michael Jordan during a Cavs road trip to Miami. No one other than those present can say for sure what was discussed in the meeting, but it appears to have been related to the Heat's decision to retire Jordan's No. 23 at the Nov. 12 game. After the game, one of the last duels between James and Wade that we'll see, James proclaimed his intention to give up No. 23 next season and recommended that the NBA retire it permanently.

Of more significance was a meeting detailed by the Plain Dealer during the last week of June, when Wade and Bosh flew to Ohio and met with James in Akron. The three players, still under contract with their teams, allegedly discussed joining forces as free agents. If true, this would be a blatant violation of the NBA's tampering rules, which are outlined in the Uniform Player Contract. Punishment includes a definite or indefinite suspension, a maximum fine of $50,000 or both.

"You could certainly come up with an argument that LeBron was under contract when the negative event happened," Whiting said. "That's a straight breach of contract. ... A 6-year-old could look at that and say, 'That's not right.'"

Leon Rose, who represents James, did not respond to calls and text messages from seeking comment on the meetings. Henry Thomas, who represents Wade and Bosh -- under the same Creative Artists Agency umbrella with Rose -- declined to comment.

Punishment for management officials engaging in such activities is far more severe, ranging from forbidding the person tampered with to sign with the offending team to forfeiture of draft picks and fines up to $5 million, according to a league memo sent to all 30 teams in December 2008 -- a memo that was designed, and apparently failed, to prevent the kind of activities that led to the unholy alliance of the top three free agents landing on the same roster.

"This kind of thing happens all the time," said an NBA team executive who was not involved in the pursuit of James, Wade or Bosh. "A GM will call and say, 'Well, you know I'm calling you about the draft, but what's going on with Player X?’"

Since player contracts and the NBA Constitution call for tampering cases to be handled through arbitration, the impact of such a lawsuit would've quickly evaporated. Even if Gilbert's lawyers had been granted an injunction in federal court, the judge almost certainly would have ruled that he or she had no jurisdiction over the league's CBA.

"The players and the owner agreed to operate under a certain set of rules, and these rules govern these types of situations," Feldman said. "If they're not happy with the rules, they can change them. But it's not up to a judge to change them."

Another problem: You can't have a tampering case in the NBA without a team filing charges, and the Cavs obviously have no intention of doing that. In fact, the Cavs have become complicit in James' departure to Miami by agreeing to a sign-and-trade scenario that provides them draft picks and additional cap space to begin the rebuilding. The Raptors did the same with Bosh. Giving in was seen as a faster and cheaper option than going to court.

But not a better option, if it were me. Stern gave his blessing Monday to the latest and biggest example of teams and players circumventing the rules that everybody agreed to in 2005, when the CBA was ratified. That doesn't mean the Cavs had no case, or that what happened was right -- or even legal. It just means business as usual in the NBA.

"There's nothing you can do about it," the NBA team executive said. "It's an incestuous, friend-ridden business."

And with friends like these ...

Before joining, Ken Berger covered the NBA for Newsday. The Long Island, N.Y., native has also worked for the Associated Press and can be seen on SportsNet New York. Catch Ken every Saturday, when he hosts Eye on Basketball from 6-8 p.m. ET on

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