ELIMINATING THE INCENTIVE TO LOSE: A UNIQUE PROPOSAL TO REFORM THE NBA DRAFT’S LOTTERY SYSTEM By: Andrew Smith

During our country’s revolution from British tyranny over 200 years ago, Thomas Paine opined in his famous pamphlet Common Sense, that “a long habit of not thinking a thing wrong, gives it a superficial appearance of being right, and raises at first a formidable outcry in defense of custom.”1 In a progressive society, it is important to never be satisfied with the status quo and understand that no matter how successful an entity may be, there is always room for improvement. The National Basketball Association’s draft process has received some scrutiny the last two seasons, as several teams have been accused of not giving maximum organizational effort in their games, so that they would have the best opportunity to be awarded the first overall draft selection. It was not the first time that the NBA had to confront questions on the success and legality of their draft, and more recently, its lottery process. The best way to remedy an ailing process is to get to the root of the problem. In this paper, I will analyze the history of the NBA Draft and the reasons for its existence in the first place. Then, I will explain why all of the key parties involved in the situation, the owners, coaches, players, and the league itself, would be pleased with my innovative draft process which would address every weakness with the current system and explain why my proposed changes would be beneficial for all of the interested parties.

LEGAL HISTORY Before I break down the NBA’s draft system it is important to look at its legal history and how it has progressed to its current state. The amateur draft is present in
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Paine, Thomas. Common Sense. Philadelphia: printed. And sold by W. and T. Bradford [1776]; Bartleby.com, 1999. www.bartleby.com/133. 2

every major sport because of the importance of competitive balance. In every sport, organizations have understood the necessity for evenly distributed talent. Obviously, the main goal of every team is to win games, but the main goal of the organization as a whole is to be successful and for some owners, teams are financial investments. There are a handful of owners who would certainly sacrifice organizational revenue in order to improve the team that they field, but there are still some who operate the organization simply as a financial asset. This is what makes sporting leagues so inimitable. For example, in the fast food industry, McDonald’s does not want Burger King to be successful. They want to increase revenue while at the same time pushing any competitors out of the market. In sports though, “the success of a professional team depends greatly on the success of its league.” 2 This necessity for an equal balance of talent adds to the unique excitement of sports. Obviously, there are a number of factors that go into being a successful team, such as player development, coaching, style of play, and personality traits of players, but the draft has proven in the past to be the most effective way of assuring that all teams have a chance to acquire talented players. The NBA Players Association in the landmark antitrust case of Robertson v. National Basketball Association challenged this thought.3 This was a case brought by current basketball Hall-of-Famer Oscar Robertson, who at the time was the players’ union representative. In this case, the players’ union contended that their new collective bargaining agreement violated the Sherman Antitrust Act. The union challenged the

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Roger G. Noll, Sports, Jobs, and Taxes: The Economic Impact of Sports Teams and Stadiums 27 (1997) 3 Robertson v. National Basketball Association, 556 F.2d 682 3

legality of the draft, the merger with the ABA, and the league’s reserve clause that prohibited free agency. The union’s argument was put in layman’s terms in an essay by sports agent Leigh Steinberg, “A standard analogy, repeated so regularly by some lawyers and agents, is a system in which an attorney graduates from law school and is drafted by, and forced to work for, a law firm in Biloxi, Mississippi, rather than a firm in San Francisco for whom the lawyer wants to work.” 4 In 1976, six years after the suit was originally brought, the NBA finally settled by eliminating the option clause and creating free agency but upholding the merger between the two leagues and of course, the legality of the draft.5 One of the two other main cases is Bridgeman, et al. v. NBA, et al., 675 F.Supp. 960, a case in which the United States District Court for the District of New Jersey held that plaintiffs (NBA players) were not entitled to summary judgment on the issue of whether the NBA draft, salary cap, and right of first refusal were violative of anti-trust provisions; by virtue of the fact that there was a factual issue of whether the NBA’s collective bargaining agreement which treated the issues and thus exempted them from anti-trust scrutiny had in fact, expired. The other case is Wood v. NBA, et al. 602 F.Supp. 525, in this case the United States District Court for the Second Circuit denied plaintiff’s motion for a temporary injunction in a lawsuit which alleged that the practice of requiring an NBA draftee to accept the minimum salary or forego playing for one year was violative of anti-trust

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Leigh Steinberg, Negotiating Contracts in the National Football League, C627 A.L.I.A.B.A. 617, 619-20 (1991). 5 NBA.com official biography of Oscar Robertson, http://www.nba.com/history/players/robertson_bio.html 4

provisions, holding that “plaintiff failed to establish irreparable harm.”6 The court inferred that the practice in question was part of the collective bargaining agreement by which all players are bound. There are a litany of cases, including Robertson, where courts have upheld the draft against antitrust claims by using the argument of competitive balance and the necessity of such for a league to stay afloat. The lone opposing decision was Smith v. Pro Football, Inc. 420 F.Supp. 738, in which the National Football League gained “the notoriety of losing the only case directly challenging the legality of a professional sports draft.” 7 This decision though was specific to the NFL, and the Washington D.C. District Court’s analysis has not only been scrutinized a great deal, but has never been used by another court in a similar case. In general, “the court questioned the correlation between the draft and on-field competition, suggesting the existence of a stronger relationship between competition and other factors such as the sharing of television revenues and the ability of individual coaches.” 8 In his 1995 article in the Marquette Sports Law Journal titled The Amateur Sports Draft: The Best Means To The End, Jeffrey Rosenthal opined that the court’s reasoning suggests, “no pro-competitive effects that increase athletic competition are ever of significance.”

In my opinion, this case was the end-all decision showing the power of the collective bargaining agreement. Leon Wood, a draftee of the Philadelphia 76ers in the 1984 NBA Draft, declined to accept a one-year contract offer that would have paid him $75,000. His argument centered on the argument that “in signing a salary not commensurate with his talents he would be exposing himself to a career ending injury.” The court ruled that once a player is drafted he is immediately bound to the regulations of the CBA, and that the salary limitation clearly fell within the terms and conditions pursuant to Section 8 (a) of the National Labor Relations Act, 29 U.S.C.S. 158 (d). 7 Jeffrey A. Rosenthal, The Amateur Sports Draft: The Best Means To The End?, 6 Marw. Sports L.J. 1 (1995). 8 Ibid., Page 4 5

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In an analysis of the other court decisions in which the antitrust elements of the amateur sports draft have been ruled on, it does not seem to be a coincidence that no other court has followed the Smith decision. In order for the talent that enters every professional league on a yearly basis to be spread out evenly, and not placed into an open market and signed by the wealthiest team or team in the most desirable location, the amateur draft is a necessary entity. The legality of the amateur draft though is not what is at issue in my argument. My paper will focus on whether or not the arrangement of the amateur draft in the National Basketball Association is the best means to reach the league’s intended goal.

COLLECTIVE BARGAINING AGREEMENT AND DRAFT RULES Each of the four major professional sports, baseball, basketball, football, and hockey hold an amateur draft in the off seasons of their respective sports. Each draft has their own set of rules pertaining to the draft, but the NBA’s draft is unique in its brevity. The two-round draft gives every organization two picks, one in each round, every pick can also be traded to other organizations, which sometimes gives certain teams more or less than the standard two selections. The NBA players’ association, led by its chief Billy Hunter, agreed to some modifications to the draft in the most recent collective bargaining agreement, which was signed after the 2005 season. The most important change from past drafts was the amendment that high school players would only gain draft eligibility one year after their graduating class has finished high school, and only if they are also at least 19 years of age

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as of the end of the calendar year of the draft.9 The age requirement of 19 is also the same for international players. The players’ union agreed to the league’s proposal for the age requirement because of the immaturity and lack of skill that many of the league’s early-entry players possessed. There have been a small number of high school players who have made an immediate impact in their first season, but even well known players like Kobe Bryant and Tracy McGrady struggled in their first couple of seasons as a professional basketball player. Unfortunately, this rule has opened up a whole other can of worms for college basketball, as players are now entering a school with the mindset that it will be a one-year stop, which essentially defeats the purpose of amateur athletics at the college level. This is an issue that I will not address in this paper though. The rest of the draft’s rules are fairly basic. All United States-born players are automatically eligible upon the end of their college eligibility. All other players who wish to be drafted and meet the age requirement, must declare their eligibility no later than 60 days before the draft. After this date, prospective draftees may attend up to two of the four major NBA pre-draft camps, where teams send their scouts to evaluate the available talent. Potential draftees are also invited to many individual team workouts. Throughout this period, the players who still have college eligibility can obtain feedback regarding their projected draft position, and if they so choose, they can return back to their schools. Each player is only allowed to use this test period once if they would like to retain

National Basketball Players Association, Collective Bargaining Agreement, Article X Section 1, Paragraph (a) 7

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amateur status, as the NCAA does not allow student-athletes to play at the college level if they withdraw from the draft twice.10 The most complex aspects to the draft’s section in the collective bargaining agreement pertain to the negotiating rights and the sliding salary scale. Pursuant to Article X, Section 4, Paragraph (a) of the Collective Bargaining Agreement, a “team that drafts a player shall, during the period from the fate of such NBA Draft to the date of the next Draft, be the only Team with which such player may negotiate or sign a Player Contract…If a Team has made a required tender contract to such a player and the player has not signed a player contract within the period between the two drafts, the team that drafted the player shall lose its exclusive right to negotiate with the player and the player will then be eligible for selection in the subsequent draft.” 11 This issue was at the crux of the players’ association’s antitrust argument, but it is an argument that courts have ruled against, as stated before for the policy of a balance of talent among leagues. This negotiating rights clause is necessary so that any holdouts can be avoided by giving players very little leverage. Article VIII of the collective bargaining agreement lays out the framework for the Rookie Salary Scale. This scale establishes that “a first-round pick’s applicable rookie scale amount is determined by the player’s selection number in the NBA Draft.”12 Every first-round pick is restricted to negotiating with only the team that drafted them for the subsequent 12 months until the next draft. As far as salary goes, there is very little leverage given to the players in the negotiating of these contracts, they can be awarded

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Ibid., Article X, Section 8 Ibid., Article X, Section 4, Paragraph (a) 12 Ibid., Article VIII 8

significant money in a signing bonus. There is no leverage though given to the players when it comes to contract length. Section 1, Paragraph A of Article VIII states that “Each Rookie Scale contract between a team and a first round pick shall cover a period of two seasons, but shall have an option in favor of the team for the player’s third season and a second option in favor of the team for the player’s fourth season.” This was another win in the collective bargaining agreement for the league, as they wanted to avoid having players pick and choose their destinations, and also allow for teams to be rewarded for good draft picks with more service time under contract. The NBA’s draft though puts a great deal of pressure on every organization because there is so little room for error. There have been many well-known blunders in NBA Draft history, selections that have hindered organizations for years into the future and cost them millions of dollars in ticket sales, media coverage, and other sources of revenue. The most notable of these selections came in 1984, when the Portland Trail Blazers selected 7’1” center Sam Bowie with the second overall selection. Despite having modest success with Portland, as well as the New Jersey Nets, Bowie was hampered by leg injuries throughout his eleven-year career, and more importantly, this selection allowed the Chicago Bulls to select Michael Jordan with the third pick. Obviously hindsight is twenty-twenty, but six NBA Championships later for the Bulls, and it is safe to say that Portland has regretted their decision. The Sam Bowie pick though is just one of several notable gaffes since the NBA Draft’s inception in 1947. In recent memory, there was the selection of 18-year old Darko Milicic by the Detroit Pistons with the second overall pick in the 2003 NBA Draft. Led by a solid core of veteran players, the Pistons achieved great success in the years after the

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pick, winning two Eastern Conference titles, and one NBA title. But, the Pistons passed on the league’s leading scorer in 2006, Carmelo Anthony, who was selected by the Denver Nuggets one pick later. Anthony, who won an NCAA Championship as a freshman at Syracuse University, has established himself as one of the league’s premier offensive players, while Milicic is now playing for the Memphis Grizzlies, his third team in four seasons. These are just examples illustrating the fact that scouting talent in the months leading up to the NBA Draft is not an exact science, and there are just as many players selected among the top ten selections who do not pan out, as there are players selected late in the second round who turn into all-stars. The draft’s unpredictability is just one of the many reasons why the NBA should consider reforming the draft system. So, the courts have ruled that the draft is a legal entity because all antitrust issues are outweighed by the necessity for competitive balance. We also know that the collective bargaining agreement weighs heavily in favor of the league, and the league seems to have the upper hand in any potential negotiations, which would lend one to believe that if the league intended to adopt a new policy, they would be able to incorporate it into the new collective bargaining agreement. The next steps are explaining the NBA’s motive in establishing a lottery system that was so different from other professional sports, and whether or not it actually achieves what the NBA had originally intended. Also, I intend to explain how alternative dispute resolution methods would be the most effective route in putting my proposal into effect.

THE LOTTERY

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As mentioned previously, the NBA Draft is unique in its short length. Here is a graphic displaying the number of players drafted in 2007 in each of the respective major professional leagues. MLB: 1,453 NBA: 60 NFL: 265 NHL: 21113 The draft is shorter in length because of the fact that NBA teams do not have minor league systems as do MLB and NHL organizations, and the NBA only allows its teams to have active 15-man rosters, a much smaller allowance than teams are given in the other sports. In every other sport though, the order of selections is based on record in a simple worst-to-first order, and this order remains the same in every round. Now, let us look at how the NBA progressed to the decision to hold a lottery. The NBA’s inaugural draft took place in 1947 and its system has changed several times throughout its 60-year history, which may be a sign that the NBA is willing to continue progressing until the best possible system is found. From 1947-1965, the NBA allowed teams to forfeit their first-round pick in order to select a player from its immediate area. These “territorial picks” were created in an effort to drum up local support in a time when nearly every NBA organization was struggling to get consistent fan attendance.14 From 1966-1984, the NBA used a coin flip between the two worst teams to determine the first pick of the draft. This completely random procedure gave off the
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These numbers were gathered from various websites listing all of the drafted players in 2007. 14 Evolution of the Draft and Lottery, available at http://www.nba.com/history/draft_evolution.html 11

appearance that the league simply could not come up with a better solution, so they just went to an unsystematic, juvenile method. In 1979, the Chicago Bulls lost the coin toss to the Los Angeles Lakers, it was their wrong call of “heads” that cost them the opportunity to draft Michigan State wunderkind Earvin “Magic” Johnson, who led the Lakers to an NBA Championship in his rookie season before obviously going on to an illustrious career. 15 There is no justification for making a coin toss the ultimate determining factor in who selects first overall, but it was not until the Houston Rockets’ end-of-season meltdown in 1984 that the NBA rightly decided to trash this process for the 1985 NBA Draft. On March 13, 1984, the Houston Rockets sat at 26-39 with 17 games remaining in the regular season. The Rockets had won the coin toss in 1983 and drafted 7’4” phenom Ralph Sampson out of the University of Virginia, despite Sampson’s first-year campaign which garnered him the Rookie of the Year award, the Rockets were not a playoff contender. Meanwhile, at the same time, 7’0” center Akeem Olajuwon was leading the University of Houston to the NCAA Final Four. As New York Daily News sportswriter Filip Bondy wrote in his book, “Tip-Off: How the 1984 NBA Draft Changed Basketball Forever,” The league in 1984 was in its last throes of a stubborn plutocracy, dominated by a powerful ruling triumvirate: the Boston Celtics, the Los Angeles Lakers and the aging Philadelphia 76ers. The rosters of too many other teams were paper-thin in marketable
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Filip Bondy, Tip-Off: How the 1984 NBA Draft Changed Basketball Forever, 4 (2007). This book did a fantastic job of running down Portland’s decision to draft Sam Bowie after they lost the coin toss to the Houston Rockets. Not only did the Portland organization pass up on Michael Jordan, but John Stockton and Charles Barkley, also NBA Hall-of-Famers were passed on in order to draft Bowie. Hindsight is definitely 2020, but it is just one more example why the draft is viewed by many as a crapshoot. 12

stars. The coin flip to determine the first draft pick on May 22 represented a chance for either the Houston Rockets or the Portland Trail Blazers to change all that, to transform the trio of elite teams into a quartet. Olajuwon wasn't a particularly glamorous figure. He wasn't even American. But the Nigerian star figured to have an immediate impact. He was big, smart, agile and owned surprising court savvy considering his inexperience. Title teams were built around such centers, guys like Kareem Abdul-Jabbar and Robert Parish. Olajuwon looked like a franchise player who figured to win a championship or two.16 The Rockets seemed intent on doing whatever it took to obtain Olajuwon, the local hero, with a “territorial pick” of their own. So, over the final 17 games of the regular season the Rockets promptly posted a 3-14 record. There was no incentive for the Rockets to play out the final weeks of the regular season with any passion, their fans wanted Olajuwon, and the organization made it very apparent that they did as well. After all, what team wouldn’t? But, sport should exist solely for teams to compete to win, whenever losing has an incentive, the whole purpose of competition is voided.17 In the inaugural lottery system in 1985, all seven teams who missed out on the postseason were given an equal shot at the first overall pick. The New York Knicks had the third-worst record in the NBA in the 1984-85 regular season, yet they won the randomized lottery, earning the first pick in the draft and ultimately the rights to the consensus best available player, 7’0” center Patrick Ewing from Georgetown University.

Ibid., Page 4. There have been several arguments as to why the NBA Draft should be modified. But, none have addressed the fact that there should never be an incentive for losing, and none have ever created a new model developed solely to avoid this tenet of competitiveness which is at the crux of why sports exist.
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Still to this day, there is great controversy over the “frozen envelope” scandal, an alleged attempt by the NBA to rig the lottery and allow Ewing to play in New York, the country’s largest market.18 Immediately, this system drew ire from the Golden State Warriors and Indiana Pacers, the two teams who tied for the worst record in the league. They wondered how a system in which two teams who each finished 22-60 and a team, the Atlanta Hawks, who finished 34-48 had equal opportunity to earn the first pick in the draft could ever be considered equitable. Over the next eight years, the lottery was adapted three more times, until finally in 1993, the NBA developed the weighted lottery system which is still being employed today. Although the percentage points that determine the likelihood of each pick has changed as more expansion teams have been added to the league has changed, the general idea of the system has remained the same. To put it in layman’s terms: “1000 different outcomes of an experiment exist and are equally likely to occur. A certain amount of outcomes is assigned to each non-playoff NBA team. The largest number of

There will always be a minority of conspiracy theorists who question the actions of an entity that has little, if any, oversight. Blogger Seth Cohen summed up the feelings of the doubters at his blog, www.cubeside.com. “Prior to the ’85 draft, the team with the worst record in the NBA would always get the number 1 pick in the draft. However, commissioner David Stern decided that it was too enticing for a mediocre team to purposely throw games in an attempt to land the next year’s top draft pick. So in ’85 it was decided that the 8 worst teams would have their names put in an envelope and then Stern himself would swirl them around a big plastic ball, bingo style and pick them out at “random.” Everyone knew that Patrick Ewing was the pick that year, to put it in perspective the 2nd pick was Wayman Tisdale…yeah ,you haven’t heard of him. The theory goes that Stern wanted the lowly Knicks to land the franchise player and help boost revenue in the major market of New York, so he decided to freeze the envelope so that when he reached into the big plastic globe he’d know which one it was by its cold touch. To put even more mystery into it, Stern did it behind closed doors with no television cameras allowed to watch the selections, so no one really knows what took place back there. The Knicks landed Ewing and made two finals appearances during his tenure.” 14

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outcomes is assigned to the team with the worst record. The team with the second worst record gets the second largest number of outcomes, and so on for each of the 14 teams in the lottery. The experiment is conducted, and the team to which the winning outcome was assigned receives the 1st pick in the NBA Draft. The experiment is conducted again. If the winner is the same team that already won, the experiment is performed over again until there is a different winner. The winner of the second experiment receives the 2nd pick. The winner of the third experiment receives the 3rd pick. After the 1st, 2nd, and 3rd picks are determined, the 4th-14th picks are assigned to teams based on weakness of record. The lottery is conducted with witnesses verifying that all 14 balls are represented once as they are placed in the lottery machine. The balls are placed in the machine for 20 seconds to randomize prior to having the first ball drawn. The remaining three balls are drawn at 10-second intervals. NBA officials determine which team holds the winning combination and that franchise is awarded the #1 overall draft pick. The four balls are returned to the machine and the process is repeated to determine the second and third picks. In the event that a combination belongs to a team that has already won its pick (or if the one unassigned combination comes up), the round is repeated until a unique winner is determined. When the first three teams have been determined, the remaining picks are given out based on regular season record with the worst teams getting the highest picks. This assures each team that it can drop no more than three spots from its projected draft position.”19 From the standpoint of the teams with the worst record each season, this system has not been successful. The team with the worst record in the regular season has only

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http://en.wikipedia.org/wiki/NBA_Draft_Lottery 15

earned the first pick in the draft twice over the fourteen-year period that the weighted lottery system has been implemented, and this has been the cause of many sour grapes being spilled.20 But, from the standpoint of the NBA, this has been the intended result, they did not want to reward the team with the worst record. The lottery was put into practice because of the league’s desire to avoid having teams purposefully lose games in an effort to obtain the first overall pick. But judging from the late-season effort given by the Minnesota Timberwolves and Boston Celtics in 2007, the New York Knicks, Milwaukee Bucks, and Seattle Sonics in 2008, as well as a number of other teams in previous seasons, it appears that the weighted lottery system is not deterring teams from losing on purpose. So, in an effort to avoid the tanking of games by non-contending teams, the NBA has first unsuccessfully implemented a coin toss, and now, in my opinion, unsuccessfully implemented a weighted lottery system. In 1996-97, the Boston Celtics finished with a franchise-worst 15-67 record, and in 2001 the then-Celtics general manager M.L. Carr admitted that the team had purposefully tanked games in order to try and secure the first overall pick and select Wake Forest University center Tim Duncan. “That was part of the orchestration,” Carr said, in an interview for the Boston Herald on February 1, 2001. It turned out that the San Antonio Spurs beat the odds and were awarded the first overall pick, while Boston picked third.

Since the implementation of the weighted lottery system, only twice has the first pick been awarded to the team with the worst record in the previous season. (2003: Cleveland Cavaliers- LeBron James; 2004: Orlando Magic; Dwight Howard) 16

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The Celtics were again the center of a similar controversy in 2007 when they were accused of doing the same thing, and the numbers don’t lie. The Celtics finished the season losing 11 of their final 13 games, and were hit by what was coined as “a sudden rash of injuries,” as their usual starting players were held out of the final games. This effort to lose was even evident by the actions of Celtics general manager Danny Ainge. Last March, Ainge was fined $30,000 for sitting next to the mother of Texas freshman Kevin Durant during the Big 12 Conference Tournament; this is deemed excessive contact under the NBA Rules and Regulations.21 Jon Krawczynski documented the last several games of the Timberwolves a season ago and found a similar meltdown.22 Hosting the Memphis Grizzlies in the final game of the season, the Timberwolves sat out superstar Kevin Garnett with “right knee tendonitis,” and promptly lost 116-94 to a Memphis team that had entered the game with a league-worst 21-60 record. As it turned out, the Celtics’ and Timberwolves’ efforts were ironically squandered as they were respectively awarded the 5th and 7th picks by the weighted lottery system.23

Last year’s draft was the cause for many teams’ perceived interest in losing because of the consensus top two players. Texas freshman Kevin Durant and Ohio St. freshman Greg Oden were, and still are, viewed by scouts as future NBA superstars. Oden was selected first by the Portland Trail Blazers, but is out for the season with an injured knee. While, Durant was chosen second by the Seattle Super Sonics, and has lived up to his potential early on, averaging 20 points per game on 43% field goal shooting in his first NBA season. 22 Jon Krawczynski is an Associated Press sportswriter. His article was found on ESPN.com and was a basic game summary of the Timberwolves’ game against the Dallas Mavericks on April 10, 2007. The link to his article can be found at http://sports.espn.go.com/espn/wire?section=nba&id=2834029. 23 There were fourteen non-playoff teams in the NBA in the 2006-07 season. I calculated the records of these teams after the trading deadline of February 22, 2007. The following are the records of the non-playoff teams in order of winning percentage, and I’ll explain this footnote more in my detailed proposal. 17

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Although it could never be totally confirmed that teams deliberately try to lose games, enough evidence exists that shows certain teams have done so. But, the fact that the thought has crept into the minds of people around the league should be enough for the NBA to accept its system’s faults and be willing to make a necessary change.

PROPOSAL As my paper stated in the “Lottery” section, the NBA has made several adaptations to its draft over its history, and in more recent years, made several adjustments to the lottery system. When addressing a problem, one must evaluate it in its entirety and try to address the situation by tackling it at its roots. The NBA has developed the lottery system with two goals in mind: 1) To redistribute talent in the most equitable manner by giving the worst teams the best opportunity to acquire premium talent; and 2) To avoid the tanking of games by teams in an effort to gain the first pick in the draft. My proposal addresses both of these issues and solves all of the problems that have arisen from the lottery system.

Philadelphia 76ers 17-11 Los Angeles Clippers 15-15 New Orleans Hornets 13-14 Charlotte Bobcats 12-16 Boston Celtics 11-18 Milwaukee Bucks 9-18 Minnesota Timberwolves 7-21 New York Knicks 9-18 Atlanta Hawks 9-19 Sacramento Kings 9-19 Seattle Super Sonics 9-19 Memphis Grizzlies 8-18 Portland Trail Blazers 8-18 Indiana Pacers 6-23 18

Let us first address the concept that the lottery is the best possible route to redistribute talent in the most equitable manner. NBA legend Jerry West, who has been incredibly successful both as a player and executive, served as President of the Memphis Grizzlies until June 30, 2007. West was extremely upset with how the lottery played out last year, as the Grizzlies were awarded the fourth pick in the draft despite having the worst record in the NBA. “It’s like pitching pennies. It’s grossly unfair to the team, but I’ve said it before, I don’t think the lottery is fair. I never liked it. It’s not sour grapes. I just think it’s a terrible system and it needs to be addressed. Every other league in the other professional leagues, they all draft according to how they finish the season. There have been a lot of picks in the lottery that have failed. There are two in the lottery this year (Greg Oden and Kevin Durant) that are not going to fail. There are two superstars in this draft. I think for the teams fortunate enough to get them, the fortunes of their franchises have changed forever.”24 Well, Mr. West is right in that the lottery is a terrible system that needs to be addressed, but West is wrong in stating that his statement is not sour grapes. If the system had played out and given the Grizzlies the top pick, I am sure that West would have stated a different response. Before I get into the crux of my proposal, it is important to explain why the NBA is unique in its draft and cannot follow the basic worst-to-first order that all of the other major professional leagues follow. As evident by the Tim Donaghy scandal that rocked the NBA, basketball games are the easiest of any other to have the outcome altered.25 In a

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http://sports.espn.go.com/nba/draft2007/news/story?id=2879568 On August 15, 2007, NBA referee Tim Donaghy pleaded guilty to two federal charges resulting from an FBI investigation revolving around allegations that Donaghy bet on 19

game of basketball, if a player wanted to attempt to lose the game, they could do so by missing a free throw or allowing an opposing player to score by playing weak defense. To even the most ardent fans, this could go unnoticed and just look as it is a normal part of the game. The physical nature of football and hockey do not lend itself to the same opportunities, if a player were to “take a play off” in either of these sports, it could result in serious physical injury. While, in baseball, despite the infamous Black Sox Scandal of 1919, baseball has progressed to the point that in the final weeks of the regular season, the non-contending teams are usually fielding minor leaguers who are playing to impress their coaches and organization. Also, baseball draft picks do not make as an immediate impact as they do in basketball, as the majority of baseball draftees have to work their way up the minor league system. One counter-argument to this line of thinking is that any organization in any sport could simply sit their star players in an effort to lose, just as the Minnesota Timberwolves and Boston Celtics were accused of doing last year. This is certainly true, but I think its importance is outweighed by not only the benefits that would come from a new, unique drafting system, but also the fact that the game is still won and lost by the players on the field. Let us now look at the concept of talent distribution and why the NBA attempts to maintain competitive balance by giving the best players to the worst teams. There is no doubt that there is a certain batch of players who can be labeled “special.” These are the

games he officiated over a span of two seasons and made calls affecting the point spread of these games. There have also been a number of point-shaving scandals involving players, although these were mostly at the collegiate level. 20

players whose presence alone can compel a team from mediocrity to greatness. Shaquille O’Neal, Tim Duncan, Yao Ming, and LeBron James have all been no-brainer decisions to be selected with the first overall pick, and all of them have led their teams to levels of greatness in one form or another. O’Neal and Duncan have combined for eight NBA championships (Four titles each). James has led his Cleveland Cavaliers on a four-year steady rise from being the worst team in the league in 2003 to Eastern Conference Champions in 2007. While, Yao26 has firmly established himself as one of the premier centers in the league, and helped place the Houston Rockets in the upper echelon of the Western Conference. By no means do I want to single out Mr. West’s aforementioned comments, but it seems to be an epidemic of negativity that has worked its way around a number of teams that has not been successful in recent memory. The Memphis Grizzlies went 22-60 a season ago, what exactly makes them more deserving of the number one pick, then say, the Boston Celtics (24-58), Milwaukee Bucks (28-54), or as I will argue, the Philadelphia 76ers (35-47). If the draft is such an important entity to the success of a team, then what is the Memphis Grizzlies’ excuse for losing when they had a starting five that consisted of all top ten draft picks, the only team in the NBA to do so.27

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Despite his Americanized name being Yao Ming. When referred to, he goes by his real last name, which is Yao. 27 In the 2006-2007 season, the most common starting lineup used by the Memphis Grizzlies consisted of Damon Stoudamire (7th overall pick in 1995), Mike Miller (#52000), Rudy Gay (#8-2006), Pau Gasol (#3-2001), Stromile Swift (#2-2000). Therefore, their most used starting five averaged out to be a #5 pick. Using this calculation, I ranked every NBA team according to the average draft pick of their most used starting five. Ironically, the defending champion San Antonio Spurs averaged out to a 41.6, the highest in the NBA. Here are the rest of the rankings with an asterisk denoting whether or not the team made the playoffs in 2006-07: Memphis- 5 21

Two examples of how the draft has played out in opposite directions are the Atlanta Hawks and the San Antonio Spurs. The Hawks have the longest tenure in terms of the most consecutive seasons without a playoff appearance (eight). They also hold the longest drought of not drafting an All-Star player in all professional sports.28 Since 2000, the Hawks have drafted among the top six positions on five separate occasions, they traded away their first round picks in 2001, 2002, and 2003. Obviously, having high draft

*Detroit- 7.6 *Orlando- 8.4 New York- 8.4 *Denver 10 New Orleans- 11 *Houston- 12 *New Jersey- 12.4 Portland- 12.4 *Dallas- 12.6 Seattle- 14.2 *Cleveland- 15.2 Indiana- 15.6 Boston 16.4 *Golden State 17.2 *Washington 17.4 *Miami 18.4 Atlanta- 18.8 Philadelphia- 19 *Chicago- 21.4 Sacramento 21.6 *Los Angeles Lakers- 22 *Phoenix- 23 *Toronto- 23 Charlotte- 24 *Utah- 24.4 Milwaukee- 25.8 Los Angeles Clippers- 26.6 Minnesota- 34 *San Antonio- 41.6 (Since 60 players are drafted, any undrafted player in a team’s starting lineup was considered to be 61st.) 28 The last All-Star player that the Hawks drafted was Kevin Willis in 1984. (Information found at http://en.wikipedia.org/wiki/Atlanta_Hawks) 22

picks goes hand in hand with having losing seasons. There are a number of other important facets to a successful team; astute scouting, talented players, good coaching, and players with good character are all essential factors, and in my opinion, the Hawks lack the scouting, coaching, and high-character players necessary to compete at a high level in the NBA. On the other hand, the San Antonio Spurs have established themselves as the model franchise in the NBA. Tim Duncan is not only one of the best players in the game today, but one of the all-time best players. He has been the centerpiece of the Spurs dynasty in which they have three championships in the last five seasons. Duncan was drafted first overall in the 1997 NBA Draft, and although he is the most prominent player on the team, the Spurs’ success is due to a team chemistry that is unmatched by any of its rivals. In their most frequently used starting lineup in last year’s championship season was All-Star point guard Tony Parker (28th overall selection in 2001), Manu Ginobili (57th pick in 1999), and Bruce Bowen and Fabricio Oberto (both undrafted players). The Spurs have a head coach in Gregg Popovic that has convinced all of his players to buy into his system and style of play, they have scouts who shrewdly selected Parker and Ginobili late in their respective drafts, and they have players who have teamfirst attitudes. Henry Abbott, the moderator of the blog TrueHoop that is featured on ESPN.com, commented on the new trend of what scouts were looking for at last year’s pre-draft camp:

“What teams are shopping for are complementary players. Role players. Guys who can fit in to the team’s larger goals, while contributing very specific things. Playing really good

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perimeter defense and hitting the occasional three, for instance. Rebounding and blocking shots without getting the ball much. Players who can shine without the spotlight, and who will not be a disturbance in the locker room if they don’t get a lot of minutes. These are guys who might play 15 years without scoring 30 points, or faking someone out of their socks. I talked to ESPN’s David Thorpe, who is in Orlando, and he points out that you could stick any of those Spurs I just mentioned (Bowen, Oberto, etc.) in the predraft camp, and no one watching would be certain that they were sure-fire NBA players. Because they just do not have the skills to thrive in this hyper, ball-hog, show-yourmoves environment. Wouldn’t it be smarter to develop, nurture, and evaluate who will make the best role players?”29 The Spurs were ahead of the trend in understanding the need for role players, but maybe if teams like the Atlanta Hawks were not given the fallback option of suffering through a bad season and getting a high draft pick, then teams would make a gung-ho effort to play every game to their fullest potential. The trading deadline serves as a chance for teams that are contending for a title to add players who can benefit them for the stretch run, while the non-contending teams have an opportunity to get younger or save money by trading a more expensive veteran player. Last season, the struggling Philadelphia 76ers traded their superstar Allen Iverson to the Denver Nuggets at the trading deadline. This act of concession by their organization could have given their players an easy excuse to give up their season and try and lose in order to get the top pick. But, the 76ers’ young players led them to a postdeadline record of 17-11, and they only missed the playoffs by five games. This type of

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play should be rewarded. The Minnesota Timberwolves who went 7-21 after the deadline, including seven consecutive losses to end the season, and the Memphis Grizzlies who went 8-18 after the trade deadline should not be rewarded for an organizational effort to try and lose games in order to earn the top pick in the draft. My proposal suggests that the fourteen teams who miss the playoffs should be ranked by their post-trading deadline records. This would not only give the contending teams an incentive to win a championship, but the non-playoff teams would now be fighting to win a high draft pick, not fighting to lose. More importantly, it would eliminate the simple appearance that teams are attempting to lose.

LEAGUE Judging from the NBA’s recent actions in trying to “clean up” the image of the league, Commissioner Stern’s goals would be twofold in adapting a new draft policy: 1) Avoid any controversies; and 2) Maximize Profits and Enhance the NBA “brand.”30 I would explain to Commissioner Stern that nearly every controversy would be eliminated by my proposal. Two hypothetical scenarios could sum up why this would benefit the league. On April 18th 2007, the Golden State Warriors visited the Portland Trail Blazers in a must-win situation. The Warriors needed to win in order to secure the eighth and final playoff spot in the Western Conference. The Trail Blazers were stuck in
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After the now-infamous brawl that took place between the Indiana Pacers and Detroit Pistons on November 19, 2004, and more recently the officiating fiasco with Tim Donaghy, Commissioner David Stern has made a conscious effort to repair the image of the league. Through more strict suspensions, a zero tolerance policy with player-referee interactions, and even a dress code, Commissioner Stern has made a dedicated effort to repair the league’s image. 25

limbo, as they were out of playoff contention, yet only had the fifth worst record in the NBA, so there chances at getting the first pick were minimal.31 The Warriors ended up defeating the Trail Blazers 120-98 in a game that the Trail Blazers can benefit from in two ways, winning and spoiling the Warriors’ season, or losing and increasing their percentages at getting the top pick. This is a choice that would not have to be made under my proposal. If you do not give teams any possible incentive in losing, the benefits will be seen on the court with more competitive gameplay and off the court with higher ticket sales and television ratings. The NFL is the model sports league in that it has a level of parity unmatched in any sport.32 A cover-story article in the January 27, 2003 edition of Business Week magazine discussed the ever-powerful brand that the NFL has developed. The article stated that in the 2003 season, “By the final regular-season weekend, 19 teams still had a shot at the playoffs and a record 24 games had been decided in overtime. Those photo finishes helped boost TV viewership by 5% over 2001.”33 In 2007, the Dallas Mavericks went 67-15, the best record in the NBA, while the Memphis Grizzlies went 22-60. The Grizzlies certainly have a talented group of players, evident by their high draft picks. Last year, they missed their leading scorer Pau Gasol for several months due to an injury, but every team battles through injuries over the course of

As it turned out, the Trail Blazers defied the odds and earned the first pick despite only having an 8.8% chance. 32 Newark Star-Ledger sports reporter Rob Gebeloff researched the changes in standings in the NFL on a year-to-year basis. He found that in the NFL “the chances for any given team making a major move – two or more sports in the standings, in either direction – are highest in football or hockey. Since, the NFL plays in 4-team divisions, and the NHL in five, the volatility of change is much greater in the NFL. Information can be found in the Newark Star-Ledger, September 7, 2007, page 91. 33 http://www.businessweek.com/magazine/content/03_04/b3817001.htm 26

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a season. I am confident that if my proposal would be put into effect. this forty-five game difference would be substantially reduced by the fact that even the non-contending teams would have an incentive to leave everything they have on the court for all 82 games. In all, the parity of the league would be greater. The NBA could counter my proposal with this hypothetical situation: It is the last day of the regular season, and Team A needs to win to make it to the playoffs. If they lose, their post-deadline record would garner them the first pick in the draft. Their owner sees the top player in the draft as the savior of the franchise who can take them to the championship and demands that his coach rest his star players, after all, his team will probably lose in the first round. If this situation were to play out, I do not think any owner would sacrifice his duty to the fans and players in his organization, which is to put out a team, or “product,” that has the best chance of winning. Not to mention, last year’s eighth-seeded Golden State Warriors pulled off one of the greatest upsets in NBA history by defeating the top-seeded Dallas Mavericks in the first round of the playoffs. There is no athlete that would ever sacrifice the ability to play in the postseason for a selfish owner. Another reason for the NBA’s willingness to change could be that this new proposal would wipe out any threat of controversy or scandal on behalf of the league. Whether or not the “frozen envelope” scandal is true, the thought still does exist in the eyes of many. My proposal would make the lottery be decided on the court where teams could play hard to earn the right to gain the top selection, not decided by a percentage of ping-pong balls.

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Another component that my proposal would add to the league is that the teams that are squeezed out of the postseason are usually just one player away from being a title contender. Under the new rules, 40-win teams could become 55-win teams, which may be of more benefit than turning a 15-win team into a 30-win team. This would add a new team to the dramatic NBA playoffs every season and give every city’s fans hope for the upcoming season.34 In the end, I think the league can benefit a great deal by the proposal. At the very least, the league should give it a trial run for one season, there are only benefits to gain, it is a win-win situation for the league. OWNERS The next group to discuss the proposal with would be the NBA owners. In a mediation, it is important to allow the party that has entered into the discussion to express their desires first. This would be a very short request. The owners want to win and the owners want to make money, and not necessarily in that order. The reasons why my proposal would satisfy the owners’ requests goes hand-inhand with why it would benefit the league. The contending teams would get better competition from the lesser-talented teams in the league because all teams would be playing to win, thus every single game would be of importance to both participants.

The incredibly competitive Western Conference in the 2007-08 season has created the possibility that a 50-win team could miss the playoffs for the first time ever. As of April 4th, the Golden State Warriors would be on the outside looking in. Imagine giving the Warriors the opportunity to add Michael Beasley from Kansas St. or Derrick Rose from Memphis to their roster next season. The Warriors have been a very successful team this season and would be given no playoff appearance and a pick in the middle of the first round as the fruits of their labor. It does not seem fair that other teams who have put forth miserable late-season efforts would be rewarded with the opportunity to add a more talented player to their roster. 28

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The owners of non-contending teams would salivate at the thought of having their teams playing important games from October to April. Under the current system, at the end of the season, non-playoff teams are playing in meaningless games where losing actually benefits them. Under the new system, a sellout crowd could come to watch a non-contending team at the end of the season just to root for their team getting the opportunity to add the best possible player in the upcoming draft. I am confident that this proposal would have owners salivating at the idea of having a more balanced league that would increase revenue by a great deal. All you have to do is eliminate the incentive to lose. COACHES & PLAYERS This proposal is a no-brainer benefit for the coaches and players. One of the most difficult jobs an NBA coach has is keeping his players motivated. Although many fans argue that the money they make should be enough, the long road trips away from home, the incredible physical demand, and the scheduling all take its toll on the players. It is difficult to keep players positive and focused when they play a hard-fought game in Cleveland and have to leave right after the game to fly to Phoenix for a game the very next night. Mississippi College School of Law Professor Michael McCann commented on last year’s mind-numbing quote from Boston Celtics forward Ryan Gomes on his Sports Law Blog. “First off, aren't players prideful about competing and winning games? And even if they aren't--let's say they are completely selfish--wouldn't they care about their stats for their purposes of future contract and endorsement opportunities? So why would a player play

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worse to help a team lose? Or why would he not play in games, or parts of games, due to what are really phantom injuries, thus potentially making him appear less durable and less tough (which again would seem to jeopardize future contract and endorsement opportunities)? Those arguments certainly have some logic to them. But to counter them, I bring you Boston Celtics forward Ryan Gomes, a graduate of Providence College and the Celtics' second round pick in the 2005 NBA draft. Gomes was one of the Celtics’ better players, averaging 12 points and 6 rebounds a game, making him the Celtics 4th leading scorer and 3rd best rebounder. Of interest to this topic, Gomes and starting point guard Rajon Rondo were curiously benched for the fourth quarter of the Celtics home game against the Milwaukee Bucks last night--a game the Celtics lost by two points, thereby securing the second worst record in the NBA this season, and preventing the Bucks, holders of the third worst record, from "overtaking" them for that honor/dishonor. When asked why he didn't play in the fourth quarter, Gomes surprisingly admitted the obvious: "I probably (would have played), but since we were in the hunt for a high draft pick, of course things are different. I understand that. Hopefully things get better. Now that we clinched at least having the second-most balls in the lottery, the last three games we'll see what happens. We'll see if we can go out and finish some games."35

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Professor McCann is one of the moderators of the Sports Law Blog, this specific column can be found at http://sports-law.blogspot.com/2007/04/ryan-gomes-and-huntfor-high-draft-pick.html. In a twist of irony, the Celtics failed to get the top pick in the draft and were awarded the fifth pick overall which they traded to the Seattle Super Sonics for All-Star guard Ray Allen. Gomes was then traded to Minnesota for All-Star forward Kevin Garnett who has led Boston to the best record in the Eastern Conference through the first month of the NBA season. Gomes and the five other Celtics who were 30

The above quote may be the seminal factor in accepting the fact that the system needs to change. The faulty system is most apparent when players aren’t playing to their full potential and accepting losing as a benefit. If anything, this quote is a clear sign that the players do pay attention to the incoming players, and maybe it could be the incentive they need to give 100% effort in every game. As far as coaching goes, they would embrace the fact that their players would have another reason to be focused and energetic to win on a nightly basis. CONCLUSION There is no question that the NBA’s lottery system is flawed. It remains to be seen whether or not this proposal is also flawed, but it is certainly worth trying. The benefits that can stem from this proposal both financially and as an addition to the competitive nature of the sport have the potential to bring the NBA to a level of popularity that it has not reached since the incredible Lakers-Celtics rivalry of the 1980’s. Sports have given people a reason to cheer for thousands of years. Sports give everyday fans a chance to feel the highs and lows of competitive athletics at its highest level. When teams are given an incentive to lose, it takes away from what the game is supposed to be about: two teams going head-to-head with the better team on that night coming out victorious. This proposal has taken into consideration every issue that has arisen in the past, and could potentially occur in the future.

traded to Minnesota for Garnett sit at the bottom of the Western Conference at the end of November. Be careful what you wish for! 31

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