Tapping-up (tampering) of sports players: How the NBA rules compare to the English Premier League

Published 03 October 2017 By: Sean O'Toole

Agent playing with basketball

Tapping up, or tampering as it is referred to in America, is the practice of attempting to persuade a person under contract to move without the knowledge or permission of the other contracting party. It most commonly happens in sports where a club attempts to persuade a player under contract with another club to move.

Tapping up was a hot topic during the 2017 summer football transfer window and hit the headlines on the other side of the Atlantic in basketball.

This article compares the tapping up rules of (and practices) in two of the major leagues in football and basketball: the English Premier League (EPL) and the National Basketball Association (NBA). Specifically, it looks at:

  • Why sports want to control tapping up when is (generally) doesn’t infringe local laws
  • A comparison of the EPL and NBA’s rules on tapping up
    • Sources of tapping up rules
    • Who cannot be tapped up?
    • Who can be accountable to the league for tapping up?
    • What conduct constitutes tapping up?
    • What is the enforcement procedure?
    • What sanctions are available?
  • Examples of tapping up in Summer 2017 – the rules in practice
    • Virgil van Dijk (Southampton FC and Liverpool FC)
    • Paul George (Indiana Pacers and LA Lakers)  

 

It (generally) doesn’t infringe local laws, so why control tapping up?

Tapping up outside a sporting context does not by itself[1] infringe any laws in England and Wales. So why is the position different in sports?

There are usually three key reasons put forward for controlling tapping up in sports:

  1. The sanctity of contracts;

  2. Respect between clubs: professional leagues are generally a joint venture of its clubs to comply with certain rules. If one club interferes with another club’s player’s contract, then the contracting club’s position with the player is weakened, as is every other club that might have been interested in signing the player; and

  3. Unsettling of players under contract.

The author endorses the control of tapping up in sports. There is however a school of thought that says that tapping up should not be controlled:

  1. It generally doesn’t infringe any local laws;

  2. Rather than largely unsuccessfully attempting to control it, allow it;

  3. Clubs retain control of their contracts by having the power to reject any offers made (see the failed transfers of Diego Costa and Philippe Coutinho in the Summer 2017 transfer window);

  4. Clubs do not want to waste time scouting, team planning and then agreeing terms with a club, only to learn that a player is not interested in the transfer;

  5. Allowing tapping up might create a more open and honest environment. For example, Barcelona FC’s president Josep Maria Bartomeu, commented this week, “Officially, we learned he [Neymar] was leaving when he told us… at the end of July we saw things weren’t going well, but his father told us it was nothing… We believed his father’s word but there should have been more honesty...[2]

 

A comparison of the EPL and NBA’s rules on tapping up

Sources of tapping up rules

The relevant tapping up rules are contained in

Who cannot be tapped up

The NBA Constitution prohibits players from tapping up any other member of the association (Article 35(e)). That would include, for example, coaching staff. Persons other than players, however, are only prohibited from tapping up players (Article 35(A)(f)).

By contrast, the EPL Rules only prohibits the tapping up of players. Section T of the EPL Rules deals only with players; there is nothing in the EPL rules prohibiting other members of staff being tapped up by players or by clubs.

The rationale behind only controlling the tapping up of players is that they are the key personnel contracts within the club. Members of staff are greater in number; is unlikely to have as much of an effect on the field of play; and controlling tapping up of them is unlikely to be manageable. But are there certain members of staff, such as managers, who fit better with players when looking at the reasons for controlling tapping up?

Who can be accountable to the league for tapping up?

The NBA casts the net wide, potentially making any member who taps up a player accountable under its rules.

Article 35(e) of the NBA Constitution only applies to players, but Article 35(A)(f) relates to tapping up by persons other than players. Persons other than players include all members, owners, officers, managers, coaches, referees, employees, agents or representatives of members, owners, or the association.

The EPL adopts a much narrower stance – only a club can contravene the EPL tapping up rules and therefore be accountable to the EPL (Section T.3 of the EPL Rules). A club however can tap up through itself, or by any of its officials, players, intermediaries, or by any other person on its behalf or by any other means whatsoever. A player is also accountable if he, or any person on his behalf, when under contract, directly or indirectly makes any such approach to a club without having obtained the prior written consent of his club (Section T6 of the EPL Rules).

What happens in practice in the EPL is that clubs often reach out to third parties to find out whether a player would be interested in a prospective transfer. If the player is, then clubs make a formal approach to the contracting club. This practice however is likely to be non-compliant with Section T of the EPL Rules, although it is viewed as a way of ensuring that a player is interested in a potential move before time is spent agreeing terms with the contracting club.

What conduct constitutes tapping up?

The NBA rules on tapping up are widely drafted.  Tapping up includes where the person directly or indirectly entices, induces, persuades or attempts to entice, induce, or persuade:

  • In the case of tapping up by a player, any person under contract to any other member of the NBA to enter into negotiations for or relating to his services or negotiates or contracts for such services (Article 35(e) of the NBA Constitution);
  • In the case of any other person,

    • any player who is under contract to, or whose exclusive negotiating rights are held by, any other member of the NBA to enter into negotiations for or relating to his services or negotiate or contract for such services or

    • otherwise interfere with any such employer-employee relationship (or prospective employer-employee relationship in the case of a player subject to exclusive negotiating rights) of any other member of the NBA (Article 35A(f) of the NBA Constitution).

The EPL Rules are drafted more simply - clubs are not allowed to directly or indirectly make “an approach” for a player, unless an exception applies (Section T.3 of the EPL Rules). The exceptions are

  1. making an approach with the prior written consent of the club to which the player is contracted; and
  1. making an approach to a player under contract after the third Saturday in May in any year and before the 1 July where the player will become an out of contract player on the 1 July of that year; and the player has received no offer from his club under Rule V.17.2, or has received but has declined such offer.

There is no need for there to have been any influence in either league. The fact of an attempt to persuade or an approach being made is sufficient. Further, both leagues’ rules prohibit indirect conduct, such as public statements of interest.

The NBA rules are however far more prescriptive than the EPL rules – an attempt to entice, induce or persuade being a higher bar than making an approach. Making a public remark in a press conference that a player would look great in another club’s uniform would be tapping up in the NBA (Sacramento Kings’ head coach made such remarks about LA Clippers’ Chris Paul, which led to the club being fined in 2013[3], but might not be sufficient to be an indirect approach for the purpose of tapping up in the EPL.

What is the enforcement procedure?

If a complaint is made, or the NBA decides to investigate conduct, the commissioner will run an investigation into whether a person has violated the anti-tampering rule. The commissioners ruling is widely considered final and are not appealable.

The EPL disciplinary procedures are set out at Section W of the Premier League rules. The principles are similar to those in the NBA.

What sanctions are available?

A player in the NBA found guilty of tapping up may be suspended and/or fined up to US$50,000. In respect of any other person found guilty of tapping up in the NBA, the commissioner shall have the power, in his or her sole discretion, to (without limitation) suspend of the person definitely or indefinitely, prohibit the affiliated club from hiring players or forfeiture of its draft picks, and/or the imposition of a fine upon the offending person and/or the affiliated club in an amount not to exceed $5,000,000.

Since only a club can tap up a player, the EPL sanctions are restricted to those that affect clubs. They include the imposition of a fine unlimited in amount, deducting points, or any other order that it thinks fit. That could include a transfer ban.

 

Summer 2017 – Tapping up rules in practice 

The topic of tapping up featured in both the EPL and NBA during the summer.

Virgil van Dijk

The most publicised incident of tapping up in the EPL during the summer involved Southampton FC defender Virgil van Dijk.

Van Dijk, now 26, signed a six year deal with Southampton FC during 2016. Fast forward one year and the relationship between player and club became very different.

Southampton FC complained to the EPL in July 2017 about Liverpool FC attempting to tap up its player. This followed speculation of Liverpool FC being interested in signing van Dijk. Southampton FC’s actions show that a club dubbed as a selling-club will only be pushed so far. The conduct complained of has not been confirmed, but is believed to have involved a meeting in Blackpool with Liverpool FC manager, Jürgen Klopp, as well as regular messages between them[4]. If any such conversations were taking place, Liverpool FC was in breach of EPL Rule T.3; van Dijk had another five years left on his contract with Southampton FC and Southampton FC had not consented to any such conversations taking place.

Liverpool FC has of course enjoyed a strong business relationship with Southampton FC over the past few years, purchasing several players from it: for example, Liverpool’s £60m raid of four Southampton players in 2015.

Shortly after the complaint was made, Liverpool FC issued a statement of regret over “any misunderstanding” and withdrew its interest in the player.[5] Van Dijk however did still express his desire to leave the club and join Liverpool FC.

Liverpool FC’s apology came in the wake of an EPL investigation; it clearly took the matter serious enough to back down. It is believed that Liverpool has escaped punishment[6].

Paul George

Tapping up was also a hot topic in the NBA during the summer.

Paul George was under contract with the Indiana Pacers until 1 July 2018 when he was to become a free agent. George, 27, is a four-time NBA All-Star and has been named three times to the All-NBA Team and NBA All-Defensive Team.

Despite being under contract with another club, on 20 April 2017, the LA Lakers’ president, Magic Johnson, discussed his interest in signing George on a TV show.  In that interview, Mr Johnson explained that in order to learn how to be a team president, he went to tampering school. He remarked:

You can’t tamper with somebody else’s player… We [Johnson and George] going to say hi because we know each other, you just can’t say, ‘Hey, I want you to come to the Lakers,’ even though I’ll be wink-winking like, ‘You know what that means, right?’”[7]

The NBA issued a warning to the Lakers following Mr Johnson’s conduct, since it amounted to indirect (since it was not made direct to the player) tapping up contrary to Article 35A(f) of the NBA Constitution.

The NBA’s warning did not however deter the club. The Lakers’ general manager, Rob Pelinka, later engaged in tapping up through communications with George’s agent, Aaron Mintz. The Pacers complained to the NBA who conducted an independent investigation. The Lakers were fined US$500,000 for its conduct, the largest fine in the NBA for tampering players. The level of the penalty reflected the fact that the Lakers had already been issued with a warning.

George was traded to Oklahoma City Thunder during the summer.[8]

Despite the EPL Rules on tapping up being more relaxed than the NBA’s, Liverpool FC was evidently more deterred from pursuing their interest. A public apology and withdrawal of interest presumably satisfied Southampton FC’s objectives.

The NBA’s warning and subsequent fine of the Lakers, however, is unlikely to be enough a deterrent; the Lakers are after all one of the most profitable in the league. In order to be an effective deterrent, the NBA would need to issue more severe penalties, such as taking away a team’s first-round pick or prohibiting a team from signing a particular player (e.g. the Lakers from signing Paul George when he might become available as a free agent next summer).[9]

 

Concluding remarks 

The topic of tapping up is likely to continue to be a prominent feature in sports as clubs look to get their transfer targets and players look to move despite contractual commitments. The difficulty of the ‘victim club’ will be proving that tapping up has actually occurred; but clubs, inspired by the likes of Southampton FC and the Pacers, might take a more bullish approach by making complaints.

Leagues need to ensure that if they prohibit tapping up, they also ensure that the enforcement of those rules is likely to deter future misconduct. The case study of Paul George provides a good example of the enforcement action being unlikely to deter future wrongdoing, notwithstanding the league rules being tightly drafted.

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Author

Sean O'Toole

Sean O'Toole

Sean is an associate in the sports law team at Beswicks Legal. He acts for clients across a broad range of commercial and regulatory disputes, with a particular focus on acting for clubs and sportspersons.