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Superstars, Superteams, and the Future of Player
Movement
William W. Berry III*
Abstract
Disgruntled stars have existed since the dawn of professional sports.
Historically, though, top athletes had little recourse other than holdouts,
which typically did not achieve an improvement in salary or circumstance.
Beginning with The Decision, LeBron James charted a new path for
stars in the National Basketball Association (NBA)
—
creating “super-
teams” through moves in free agency. To be sure, the two most recent NBA
dynasties
—
the Miami Heat and the Golden State Warriors
—
assembled
their championship rosters through decisions of free agents to combine their
talents. Part of the strategy has been to agree to shorter contracts such that
the flexibility exists to switch teams. These moves have resulted in players
eschewing the higher pay of staying with their current teams under the Bird
Rule.
During the past three years, this phenomenon has reached a new level,
with players under contract using their star power to make lateral moves to
form super-teams prior to free agency. Anthony Davis successfully forced a
trade from the New Orleans Pelicans to the Los Angeles Lakers, resulting in
a championship for the Lakers. James Harden accomplished the same move
last year, forcing a trade from the Houston Rockets to the Brooklyn Nets,
with similar championship aspirations. While teams might trade disgrun-
tled players, the ability of a superstar to force a trade has rarely happened, as
teams are reluctant to give up their best player.
* Associate Dean for Research and Montague Professor of Law, University of
Mississippi. Many thanks to Erin Savoie, Eli Nachmany, and the rest of the JSEL
editorial team for their excellent work on the article.
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200 Harvard Journal of Sports & Entertainment Law / Vol. 13
On the heels of the success of NBA stars forcing trades to build super-
teams, National Football League (NFL) quarterbacks have tried the same
approach during the past two years. Initially, they were less successful.
These attempts of star players to switch teams raises questions as to
whether such trade demands will become the norm, the degree to which
players can grab this kind of power within the confines of the current collec-
tive bargaining agreements, and whether such movements are desirable.
In light of these questions, this Article explores the benefits of the
creation of a more open free market for pro athletes to allow for increased
movement between teams. Specifically, the Article suggests that players
should explore the concept of opt-out provisions in future collective bargain-
ing agreements to allow for more free movement and competition in the
market.
Part One of the Article explores the common myths of the single team
star who spends an entire career with one franchise. In Part Two, the Article
describes the recent super-team phenomenon. Part Three advances the cen-
tral argument of the Article, making the case for an expansion of player
rights in free agency through collective bargaining and opt-out contract pro-
visions. It also concludes the Article by explaining the value of increased
player movement in professional sports.
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2022 / Player Movement 201
Introduction .............................................. 202
R
I. The Myth of the Single Team Star ................... 206
R
A. Home Town Hero vs. Fantasy Star .................... 207
R
B. Parity v. Dynasty .................................. 209
R
C. Socialist Paternalism v. Capitalist Free Markets ......... 211
R
II. The Rise of the Super-Team .......................... 215
R
A. The Tool of Free Agency ............................. 215
R
1. LeBron James................................. 215
R
2. Kevin Durant ................................ 216
R
3. Tom Brady ................................... 217
R
B. Forcing Trades ..................................... 218
R
1. Anthony Davis ............................... 219
R
2. James Harden ................................ 221
R
3. The NFL Movement (Watson, Wilson, Rodgers) . 222
R
III. Rethinking Player Movement ...................... 226
R
A. Reforming Free Agency .............................. 227
R
B. Contractual Opt-Outs ............................... 228
R
C. Basketball As a Unique Situation? ................... 229
R
D. Exploring the Value of Player Movement ................ 230
R
Conclusion ................................................. 231
R
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202 Harvard Journal of Sports & Entertainment Law / Vol. 13
Introduction
From a labor and employment law perspective, the story of professional
sports in the United States has been a slow but steady movement toward
athlete free agency.
1
The evolution has, to be sure, been uneven, and restric-
tions still remain.
2
And the path has varied across the three major team
sports of baseball, football, and basketball.
3
Nonetheless, the landscape has
shifted significantly since the early years of professional sports.
4
1
See generally Paul C. Weiler, et Al., Sports and the Law: Text, Cases
and Problems (6th ed. 2020).
2
First-round draftees in the NFL get four-year contracts with a fifth-year team
options, while picks from the second through seventh rounds get four-year con-
tracts; NBA rookie contracts last two years, with team options for a third and fourth
years; MLB rookie contracts are six years. See Nat’l Football League & Nat’l
Football League Players Ass’n, Collective Bargaining Agreement 27 (March
15, 2020), available at https://nflpaweb.blob.core.windows.net/website/PDFs/CBA/
March-15-2020-NFL-NFLPA-Collective-Bargaining-Agreement-Final-Executed-
Copy.pdf [https://perma.cc/UF4B-8CAL]; Nat’l Basketball Players Ass’n,
Collective Bargaining Agreement 265 (Jan. 19, 2017), available at https://
nbpa.com/cba [https://perma.cc/S5QA-LZRC]; MLB Collective Bargaining
Agreement 92 (December 1, 2016), available at https://www.mlbplayers.com/cba.
This article cites the previous MLB collective bargaining agreement. At the time of
writing, MLB and its players union recently agreed to a new collective bargaining
agreement. See Mark Feinsand, MLB, MLBPA Agree to New CBA; Season to Start
April 7, MLB (Mar. 10, 2022), https://www.mlb.com/news/mlb-mlbpa-agree-to-cba
[https://perma.cc/AM5R-DGF7].
3
The big three sports in the United States outpace all other sports in annual
revenue, with Premier League Soccer, Indian Premier League Cricket, and the Na-
tional Hockey League a step behind. See, e.g., Bradley Geiser, America Only Has 4 of
the Most Profitable Sports Leagues in the World, Sportscasting (April 11, 2020),
https://www.sportscasting.com/america-only-has-4-of-the-most-profitable-sports-
leagues-in-the-world/ [https://perma.cc/R9QT-NWCJ]. Indeed, in 2021, NFL foot-
ball accounted for 75 of the top 100 most viewed live television broadcasts.
Anthony Crupi, NFL Games Account for 75 of the 100 Most-Watched Broadcasts of
2021, Sportico (Jan. 7, 2022), https://www.sportico.com/business/media/2022/nfl-
games-account-for-75-of-the-100-most-watched-broadcasts-of-2021-1234657845/
[https://perma.cc/89QY-AXJ8]. Baseball players receive free agency after six years,
but are eligible for arbitration after three. See MLB Collective Bargaining
Agreement, supra note 2, at 18, 92. Football players become free agents after four
R
years unless the team exercises a fifth-year option. See NFL Collective Bargain-
ing Agreement, supra note 2, at 27. Basketball players become free agents after two
R
years unless the team exercises its third-year option. See NBA Collective Bar-
gaining Agreement, supra note 2, at 265. The team can also exercise a fourth-year
R
option, keeping the player from free agency until after his fourth year. Id.
4
The decline of baseball’s reserve clause is perhaps most emblematic of this
change. See, e.g., Jeff Martindale & Carolyn Lehr, Two Strikes: A History and Analysis
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2022 / Player Movement 203
In baseball, antitrust challenges failed, but labor arbitration opened the
door to free agency.
5
In football, antitrust challenges preceded by union
decertification carried the day.
6
And in basketball, an antitrust challenge led
to a negotiated settlement establishing free agency.
7
And yet, there are restrictions at play in each sport. In baseball, players
must wait six years for free agency, although they can enter salary arbitra-
tion after three years.
8
In football, free agency is generally available after four
years.
9
And in basketball, free agency becomes available after four years, but
can be two years if the team does not exercise its option on the rookie
contract.
10
In recent years, however, the players have begun to exercise greater
control over player movement and team-building.
11
Beginning with The
Decision,
12
LeBron James charted a new path for stars in the National Bas-
ketball Association (NBA) showing how to create a “super-team” through
of Major League Baseball, Its Antitrust Exemption, and the Reserve Clause, 7 J. Legal
Aspects Sport 174 (1997); Stew Thornley, The Demise of the Reserve Clause: The Players’
Path to Freedom, 35 Baseball Rsch. J. 115 (2006).
5
Flood v. Kuhn, 407 U.S. 258 (1972) (upholding baseball’s antitrust exemption
from the Court’s prior decisions in Federal Baseball Club v. National League, 259 U.S.
200 (1922) and Toolson v. New York Yankees, Inc., 346 U. S. 356 (1953)); Kansas City
Royals v. Major League Baseball Players Ass’n, 532 F.2d 615 (8th Cir. 1976) (up-
holding the arbitrator’s decision in National and American Professional Baseball
Clubs v. Major League Baseball Players Association, 66 Lab. Arb. Rep. (BNA) 101
(1976)).
6
McNeil v. Nat’l Football League, Civ. No. 4-90-476, 1992 WL 315292 (D.
Minn. Sept. 10, 1992) (finding that Plan B free agency violated the Sherman Act);
White v. NFL, 836 F. Supp. 1458 (D. Minn. 1993) (upholding the class action
settlement resulting from limits on free agency).
7
Robertson v. Nat’l Basketball Ass’n, 72 F.R.D. 64 (S.D.N.Y. 1976), aff’d, 556
F.2d 682 (2d Cir. 1977) (upholding the class action settlement that established free
agency).
8
MLB Collective Bargaining Agreement, supra note 2, at 18, 92.
R
9
NFL Collective Bargaining Agreement, supra note 2, at 27.
R
10
NBA Collective Bargaining Agreement, supra note 2, at 265.
R
11
Historically, control of a roster had been under the exclusive purview of the
general manager or similar senior club executives.
12
The Decision was a television special in which LeBron James announced his
decision of where he would sign as a free agent, choosing to join the Miami Heat
and leave his home state Cleveland Cavaliers. See, e.g., Looking Back at LeBron’s Deci-
sion 10 Years Later, Sports Illustrated (July 8, 2020), https://www.si.com/nba/
2020/07/08/lebron-james-miami-heat-decision-10-years-later [https://perma.cc/
NQ4B-7MGE] (discussing the impact and theatrics of The Decision).
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204 Harvard Journal of Sports & Entertainment Law / Vol. 13
player-coordinated moves in free agency.
13
To be sure, the two most recent
NBA dynasties
—
the Miami Heat and the Golden State Warriors
—
assem-
bled their championship rosters through superstar free agents deciding to
combine their talents.
14
Part of the strategy has been to agree to shorter
contracts such that the flexibility exists to switch teams.
15
These moves have
resulted in players eschewing the higher pay of staying with their current
team under the Bird Rule.
16
During the past three years, this phenomenon has reached a new level,
with players under contract using their star power to make lateral moves to
form super-teams prior to free agency by demanding trades. Anthony Davis
successfully forced a trade from the New Orleans Pelicans to the Los Angeles
13
As discussed infra in Part I, this strategy involves timing one’s contract expira-
tion with other players to join as free agents on a new team. This also requires some
level of team complicity as well in order to have the salary cap space to accommo-
date multiple maximum contracts.
14
In James’ case, free agent James joined with Miami Heat star Dwyane Wade
and free agent Chris Bosh to form a super-team that made four consecutive NBA
finals and won championships in 2012 and 2013. See NBA & ABA Champions, Bas-
ketball-Reference, available at https://www.basketball-reference.com/playoffs/
[https://perma.cc/4FFJ-KEJ4] (last visited July 3, 2022). To be fair, the Warriors
had already assembled a championship team, winning the NBA championship in
2015 and setting the NBA record for wins in 2015-16 before losing in the finals. See
id.; Top Moments: Warriors Set Record with 73-Win Season, NBA (Sept. 14, 2021, 9:56
AM), https://www.nba.com/news/history-top-moments-warriors-win-record-73-
games [https://perma.cc/ANE5-5YJY]. Adding Kevin Durant as a free agent led to
two more championships in 2017 and 2018 and a third finals appearance in 2019
which the Warriors lost after Durant and another star player, Klay Thompson, were
injured. See id.; James Picks Heat; Cavs Owner Erupts, ESPN (July 8, 2010), https://
www.espn.com/nba/news/story?id=5365165 [https://perma.cc/77JT-63AD]; Top
Moments: Kevin Durant Signs with Warriors in 2016, NBA (Sept. 14, 2021, 9:56 AM),
https://www.nba.com/news/history-top-moments-kevin-durant-joins-warriors
[https://perma.cc/PP8L-FEY8].
15
The uneven raises of the salary cap over time also play a role here. See, e.g., Rob
Mahoney, NBA Free Agency: The Thought Behind the One-Year Deal Trend, Sports
Illustrated (July 12, 2018), https://www.si.com/nba/2018/07/12/nba-free-
agency-kevin-durant-demarcus-cousins-deandre-jordan-one-year-deal-trend [https://
perma.cc/6WTQ-554H].
16
The Bird rule, named for Boston Celtics star Larry Bird, allows a team to sign
its own player for a higher amount than other clubs can sign him in free agency,
even if the amount exceeds the salary cap. NBA Collective Bargaining Agree-
ment, supra note 2, at 35-43, 184, 198-99. The idea behind the rule is to discourage star
R
players from switching teams.
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2022 / Player Movement 205
Lakers, resulting in an NBA championship for the Lakers.
17
James Harden
accomplished the same move last year, forcing a trade from the Houston
Rockets to the Brooklyn Nets, with similar championship aspirations.
18
While teams have sometimes traded disgruntled players, the ability of a
franchise-player superstar to force a trade to a strong team in order to win a
championship has rarely happened, as teams are reluctant to give up their
best player or help another team build a dynasty.
19
On the heels of the success of NBA stars forcing trades to build super-
teams, National Football League (NFL) quarterbacks tried the same ap-
proach during the summer of the 2021 NFL offseason. Houston Texans
quarterback Deshaun Watson and Seattle Seahawks quarterback Russell
Wilson both allegedly attempted to force trades, but were unsuccessful in
the summer of 2021.
20
The litmus test, though, for this approach perhaps
was Green Bay Packers quarterback Aaron Rodgers, the winner of the Most
Valuable Player (MVP) award for the 2020 season.
21
Rodgers went as far as
to suggest that he would rather retire than play another season with the
Packers before caving just before the team required its players to report for
the 2021 season.
22
17
Kerr: Forced Trade by Davis ‘Bad for the League’, ESPN (July 24, 2019), https://
www.espn.com/nba/story/_/id/27250922/kerr-forced-trade-davis-bad-league
[https://perma.cc/7UR8-DPTP].
18
Farbod Esnaashari, The 2-Month Trade Request: How James Harden Forced His
Way Out of Houston, Bleacher Report (Mar. 3, 2021), https://bleacherreport.com/
articles/2934230-the-2-month-trade-request-how-james-harden-forced-his-way-
out-of-houston [https://perma.cc/BQ4H-7H7Z].
19
The inability of football players to replicate what Davis and Harden have done
underscores this point. See discussion infra Part II.
20
Watson’s attempt to force a trade was complicated by a series of accusations of
sexual assault that emerged in the summer of 2021 and 22 civil lawsuits subse-
quently filed. See Aaron Reiss, Timeline of Deshaun Watson Sexual Assault Lawsuits:
Trade Won’t Happen Before Deadline, The Athletic (June 27, 2022), https://
theathletic.com/2496073/2021/10/26/timeline-of-deshaun-watson-sexual-assault-
lawsuits-lawyer-for-texans-owner-tried-to-broker-mediation/ [https://perma.cc/
A9SB-ASEK]. He ended up sitting out the 2021 season. Id. Gene Chamberlain,
Russell Wilson Explanation Misses the Mark, Sports Illustrated (June 12, 2021),
https://www.si.com/nfl/bears/news/russell-wilson-does-revisionist-history-on-bears-
trade-attempt [https://perma.cc/QHJ2-9RLE].
21
Nick Shook, Packers QB Aaron Rodgers Named 2020 AP NFL Most Valuable
Player, NFL (Feb. 6, 2021), https://www.nfl.com/news/packers-qb-aaron-rodgers-
named-2020-ap-nfl-most-valuable-player [https://perma.cc/5U4U-VJEU].
22
See, e.g., Mike Tanier, With a Little Leverage but a Lot to Say, Aaron Rodgers
Returns, N.Y. Times (July 29, 2021), https://www.nytimes.com/2021/07/29/sports/
football/aaron-rodgers-press-conference.html [https://perma.cc/H4GU-WUG6];
Vinnie Iyer, Aaron Rodgers’ Holdout Timeline: Key Dates, Fines to Know on Packers’
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206 Harvard Journal of Sports & Entertainment Law / Vol. 13
Interestingly, Watson and Wilson were both traded in the 2022 off-
season. But their situations were far different from Davis and Harden in the
NBA. Watson’s situation was complicated by ongoing allegations of sexual
assault and a possible NFL suspension. Wilson’s situation related in part to a
determination that his health and age had diminished his abilities while his
desire to pass the ball extensively contradicted the team’s run-based offen-
sive philosophy.
These attempts of star players to switch teams raises questions as to
whether such trade demands will become the norm, the degree to which
players can grab this kind of power within the confines of the current collec-
tive bargaining agreements, and whether such movements are desirable.
In light of these questions, this Article assesses the benefits of the crea-
tion of a more open free market for pro athletes to allow for increased move-
ment between teams. Specifically, the Article suggests that players should
explore the concept of opt-out provisions in future collective bargaining
agreements to allow for more free movement and competition in the market,
as outside of the NBA, forcing trades is not a successful strategy.
Part One of the Article explores the common myth of the single team
star who spends an entire career with one franchise. In Part Two, the Article
describes the recent super-team phenomenon. Part Three advances the cen-
tral argument of the Article, making the case for an expansion of player
rights in free agency through collective bargaining and opt-out contract pro-
visions while suggesting the limitations of the forced-trade strategy. It then
concludes the Article by explaining the value of increased player movement
in professional sports.
I. The Myth of the Single Team Star
Historically, athletes spent their career with the same team. Fans love
the nostalgia of the old players who are synonymous with their teams. One
might think of Larry Bird’s Celtics, Magic Johnson’s Lakers, and Michael
Jordan’s Bulls; Johnny Unitas’s Colts, Roger Staubach’s Cowboys, and Terry
Bradshaw’s Steelers; Joe DiMaggio’s Yankees, Ernie Banks’ Cubs, and Sandy
Koufax’s Dodgers. The home town hero mythology embraces the idea of the
hero always playing for the home town team
23
and never becoming a free
Offseason Calendar, Sporting News https://www.sportingnews.com/us/nfl/news/
aaron-rodgers-holdout-fines-packers/1db9kfevg9fhb10lfj73124ktp [https://
perma.cc/4WRS-XCCH] (last visited July 4, 2022).
23
Players in the baseball Hall of Fame are enshrined on a plaque where the
player is wearing the team hat in Cooperstown, with the implicit presumption that
players spend their career with one team. See Plaque Gallery, Nat’l Baseball Hall
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2022 / Player Movement 207
agent.
24
Indeed, for some fans, nothing is more crushing than their favorite
player being traded or leaving as a free agent, especially late in his career.
25
One part of the argument in favor of baseball’s reserve system
26
related
to the paternalistic idea that player movement would destroy professional
sports, as the appeal to fans was the connection to particular players.
27
If the
players changed too often and players switched teams, the argument went,
fan loyalty and interest would diminish.
28
Reality, however, has debunked this concern. With the expansion of
free agency in baseball, basketball, and football over the past thirty years,
the player that spends his career with a single franchise is rare. But this
pattern of athletes switching teams has not diminished the popularity of the
sports. If anything, it has increased fan interest.
29
A. Home Town Hero vs. Fantasy Star
One lens through which to view the transition to the modern concep-
tion of sports is the transition from the home town hero to the fantasy star.
Fan interest no longer focuses purely on the home town team. And the mod-
of Fame, https://baseballhall.org/discover/museum/plaque-gallery [https://perma.cc/
FYG9-TVNT] (last visited July 4, 2022).
24
Cal Ripken perhaps best embodies this idea in having set the record for most
consecutive games played at 2,632. See Sarah Langs et al., 8 Amazing Facts about
Ripken’s Streak, MLB (Sept. 6, 2020), https://www.mlb.com/news/amazing-facts-
about-cal-ripken-jr-s-games-played-streak [https://perma.cc/D9DH-J3V4].
25
Boston Red Sox fans in particular know this story, with the trade of Babe
Ruth to the Yankees, anecdotally creating the “Curse of the Bambino,” a supersti-
tion used to explain its eighty-six-year championship drought that finally ended in
2004. See, e.g., Anthony Castrovince, The Curse of the Bambino Explained, MLB (last
visited Dec. 25, 2021), https://www.mlb.com/news/curse-of-the-bambino [https://
perma.cc/R8PT-CPF5]; Dan Shaughnessy, The Curse of the Bambino (1990);
Bill Simmons, Now I Can Die in Peace (2005). This often does not end well for the
player (for example, Joe Montana and Michael Jordan), but Tom Brady seems to
have reversed this trend with a championship quarterbacking his new team. See, e.g.,
Scott Smith, Champs! Bucs Win Super Bowl LV, Buccaneers (Feb. 8, 2021, 9:20
AM), https://www.buccaneers.com/news/bucs-win-super-bowl-55-chiefs-31-9-final-
score-champions [https://perma.cc/H37A-6LEG].
26
See, e.g., Kansas City Royals v. Major League Baseball Players Ass’n, 532 F.2d
615 (8th Cir. 1976).
27
See sources supra note 4.
R
28
Id. Interestingly, many who oppose paying college athletes make similar argu-
ments about athlete compensation. See, e.g., Alston v. NCAA, 141 S. Ct. 2141
(2021).
29
See, e.g., In Depth: Topics A to Z: Sports, Gallup, https://news.gallup.com/poll/
4735/sports.aspx [https://perma.cc/PD7V-KKEJ] (last visited July 4, 2022).
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208 Harvard Journal of Sports & Entertainment Law / Vol. 13
ern expansion of free agency leads to the expectation that players will not
spend their entire careers with the same team.
30
Player movement has not ruined professional sports. Instead, it has cre-
ated a season outside of the season during which there is keen fan interest
31
in which players a franchise will retain, trade, release, and obtain through
off-season transactions.
32
If anything, the move toward free agency has mag-
nified interest in professional sports because it has generated a steady stream
of news and commentary throughout much of the year, expanding far be-
yond the length of the season.
33
Fan interest has also expanded beyond individual teams as a result of
the growth of fantasy sports. Many fans have become far more interested in
individual players as members of their fantasy roster, or the roster against
which they are competing, as opposed to the degree to which a player can be
the iconic representative of their home town team.
34
In the context of fantasy sports, one cheers for or against individuals, as
opposed to teams.
35
This interest in the game cuts against the traditional
30
Some companies will replace fans’ purchased jerseys if players switch teams
within 90 days. See, e.g., Jersey Assurance, Fanatics, https://www.fanatics.com/jersey-
assurance/x-2132+z-932267037-343285709 [https://perma.cc/7ZMZ-CUVS] (last
visited July 4, 2022). Indeed, it is rare for even star players to spend their career
with the same team.
31
This interest mirrors the interest in college football recruiting and helps make
professional sports into full-year sports news topics, going far beyond the season.
32
Termed the “hot stove” season, the offseason can sometimes generate more
interest from fans than the season itself does, particularly for fans of perennially bad
teams looking for hope for a reversal of fortunes in the upcoming season.
33
College football is currently enjoying a similar off-season spike in fan interest
with the rise of the transfer portal, a free agency of sorts. The proliferation of sports
media has accompanied this trend, with ESPN growing to prominence over the past
four decades. Phil Rosenthal, How ESPN
—
Now 40 Years Old
—
Changed the Sports
World, from Your Growing Cable Bill and Round-the-Clock Programming to the Glut of
Bowl Games, Chi. Tribune (Sept. 8, 2019), https://www.chicagotribune.com/sports/
breaking/ct-cb-espn-40th-anniversary-changed-sports-20190906-ogxokpxed
jgwdekdlmgudb6myq-story.html [https://perma.cc/Z7PY-7L3B].
34
See, e.g., Ed Dixon, Study: Fantasy Sports Market to Grow 9.5% to US $22.3bn in
2021, SP (Sept. 1, 2021), https://www.sportspromedia.com/news/fantasy-sports-
global-market-value-2021-nfl-mlb-nba/ [https://perma.cc/MHP6-2UW4]; The Lu-
crative and Growing Fantasy Football Industry, Sports Mgmt. Degree Hub, https://
www.sportsmanagementdegreehub.com/fantasy-football-industry/ [https://
perma.cc/Y2SB-JWRR] (last visited July 4, 2022).
35
See, e.g., Chris Isidore, Fantasy Sports: What Is It, Anyway?, CNN Money (Oct.
6, 2015, 5:13 PM), https://money.cnn.com/2015/10/06/news/companies/fantasy-
sports-101/index.html [https://perma.cc/ZZ33-L9RG].
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2022 / Player Movement 209
model of fans cheering for their home town team.
36
While, in some ways,
this could be a discouraging trend, the practical effect is that it drives fan
interest into every minute of every game irrespective of the score.
37
While a
conventional fan may turn their attention away from the game when it is
clear that the home town team has secured victory or is destined to lose, the
fantasy fan remains focused, as late game plays can affect the outcome of
their fantasy game.
38
The broadening of the fan base
—
from those interested in their home
teams and games that affect their home teams in the standings to a wide
range of fans interested in both teams and individual outcomes
—
has made
the home town hero less of an ideal of professional sports. And the reality of
free agency has made such home town stars who spend their entire careers
with one team largely extinct.
B. Parity vs. Dynasty
A second myth drives objections to super-teams
—
the need for parity
in professional sports. Former NFL Commissioner Pete Rozelle famously ar-
gued that “balance” among teams was the key to the success of the NFL,
and justified both free agency restrictions and the hard salary cap.
39
While it
36
See, e.g., Blake Snow, How Fantasy Sports Have Changed How We Cheer, KSL
(Aug. 31, 2011, 10:47 AM), https://www.ksl.com/article/17049422/how-fantasy-
sports-have-changed-how-we-cheer [https://perma.cc/NFG8-Y6UZ].
37
Some have argued that fantasy sports have the dark side of dehumanizing play-
ers. See, e.g., Eric Allen Hall, The Dark Side of Fantasy Football, Wash. Post (Sept.
10, 2017, 6:00 AM), https://www.washingtonpost.com/news/made-by-history/wp/
2017/09/10/the-dark-side-of-fantasy-football/ [https://perma.cc/YY9V-Y35S]. This
is particularly true for daily fantasy sports, a gambling offshoot that allows fan
owners to assemble a new roster each day. See, e.g., Brent Schrotenboer, Leagues See
Real Benefits in Daily Fantasy Sports, USA Today (Jan. 1, 2015), https://www.usa
today.com/story/sports/2015/01/01/daily-fantasy-sports-gambling-fanduel-draftk-
ings-nba-nfl-mlb-nhl/21165279/ [https://perma.cc/PKR9-67ET].
38
In garbage time, the part of the game after the result has been decided but
there is still a part of the game left to play, fantasy sports participants have an
incentive to watch in a way that traditional fans do not. See Scott Spratt, Defining
“Garbage Time” for Fantasy Production, Pro Football Focus (Aug. 23, 2017),
https://www.pff.com/news/fantasy-football-defining-garbage-time-for-fantasy-
production.
39
Pete Rozelle, Is It ‘Parity’? ‘Mediocrity’? Pete Rozelle Says No, N.Y. Times (Jan.
3, 1982), https://www.nytimes.com/1982/01/03/sports/is-it-parity-mediocrity-pete-
rozelle-says-no.html [https://perma.cc/99UB-55ZC]. See also Anthony Crupi, NFL’s
Overtime Spree Underscores Parity’s Impact on Television Ratings, Yahoo! (Oct. 19,
2021), https://www.yahoo.com/now/nfl-overtime-spree-underscores-parity-21481
3408.html [https://perma.cc/U7ZQ-WKPG].
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210 Harvard Journal of Sports & Entertainment Law / Vol. 13
is true that the annual hope that this will be the year one’s team makes the
playoffs or wins the championship underlies much fan interest in sports, the
presence of a dynasty
—
a team that competes for championships over several
years
—
can likewise galvanize fan interest.
40
In some ways, the presence of a dynasty may attract even more fan
interest than parity would. The dynasty raises the question of how long a
team can stay on top
—
how many championships can it win before another
team dethrones it? This phenomenon draws the interest of both bandwagon
fans
41
—
those who join on because it is fun to cheer for a winner
—
and those
who relish cheering against the dominant team.
42
Rather than a unique matchup appearing in the late playoff and cham-
pionship rounds of competition, repetition of the same teams playing each
year can be a recipe for fan interest.
43
Michael Jordan’s Chicago Bulls teams
provide an obvious example.
44
For a number of years, the Detroit Pistons
defeated the Bulls and ended their season in the playoffs.
45
Eventually, the
40
See, e.g., Tim Cato, NBA Finals Television Ratings Up from 2016 Even with Blow-
outs, SB Nation (June 5, 2017), https://www.sbnation.com/2017/6/5/15740976/
nba-finals-television-ratings-warriors-cavaliers [https://perma.cc/EQ4C-EJZ6]; see
also Jordan Finci, The Impact of Superteams and Parity on the NBA (Univ.
of Or., Senior Honors Thesis, Dec. 2017), available at https://scholar-
sbank.uoregon.edu/xmlui/bitstream/handle/1794/24005/Final%20Thesis-Finci.pdf?
sequence=1&isAllowed=y [https://perma.cc/KX26-BFY7] (arguing that super-
teams do not have a negative effect on fan interest).
41
See, e.g., Tony Santorsa, Dallas Cowboys and the 16 Biggest Bandwagon Fanbases in
the NFL Today, Bleacher Report (June 9, 2011), https://bleacherreport.com/arti-
cles/728759-16-biggest-bandwagon-fanbases-in-the-nfl-today [https://perma.cc/
9TQL-FWXB].
42
See, e.g., Callum Ng, Dear Bandwagon Fan: You Are the Worst
—
Signed, Big Fan,
Olympic (Nov. 12, 2014), https://olympic.ca/2014/11/12/dear-bandwagon-fan-you-
are-the-worst-signed-big-fan/ [https://perma.cc/59KH-N6JE]. The continued pop-
ularity of men’s professional tennis also underscores this point; three dominant play-
ers
—
Roger Federer, Rafael Nadal, and Novak Djokovic
—
have won the vast
majority of major titles over the past two decades, a fact that has increased fan
interest, not diminished it. See Tumaini Carayol, How Will Tennis Survive Without Its
Superstars?, The Ringer (Sept. 5, 2019, 8:26 AM), https://www.theringer.com/
2019/9/5/20850223/tennis-superstars-roger-federer-rafael-nadal-novak-djokovic-
serena-williams [https://perma.cc/6SUL-R4CA].
43
Giancarlo Ferrari-King, 10 Things That Happen After a Team Wins a Champion-
ship, Bleacher Report (Nov. 8, 2015), https://bleacherreport.com/articles/
2585616-10-things-that-happen-after-a-team-wins-a-championship [https://
perma.cc/XG8W-G3ZR].
44
See generally Netflix, The Last Dance (2020).
45
The Pistons knocked the Bulls out of the playoffs in 1988, 1989, and 1990.
See NBA & ABA Playoff Series History, Basketball-Reference, https://
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2022 / Player Movement 211
Bulls gained a measure of revenge and defeated the Pistons in 1991 before
winning the championship.
46
The Bulls made two separate runs to three
championships, with six in eight years, and it did not diminish interest in
the NBA.
47
To the contrary, their dynasty drew increased fan interest from
both those celebrating their wins and those hoping to see another team
knock them off.
48
The same point can be made by examining fan response to the Patriots
dynasty in which Tom Brady and Bill Belichick won six Super Bowls over a
seventeen-year period.
49
The NFL’s popularity has not diminished over that
period; to the contrary, it has significantly increased.
50
To the extent that player movement generates dynasties, this is a posi-
tive development, not a negative one, at least with respect to the economic
health of the sport. Dynasties generate fan interest from everyone, not just
fans of the team and fans of its rivals.
C. Socialist Paternalism vs. Capitalist Free Markets
Paternalistic arguments against player movement and expansion of free
agency also advance a corporate, anti-competitive approach to the market for
www.basketball-reference.com/playoffs/series.html (last visited July 4, 2022). The
Pistons coined their defense against Michael Jordan the “Jordan Rules.” See, e.g.,
Drew Sharp, The Best of the Pistons-Bulls Rivalry, Detroit Free Press, Dec. 25,
2007.
46
See NBA & ABA Playoff Series History, supra note 45.
R
47
See id. See generally The Last Dance, supra note 44.
R
48
See, e.g., Scott D. Pierce, Jazz-Bulls Are Still on Top of NBA Finals TV Ratings,
Deseret News (July 6, 2007), https://www.deseret.com/2007/7/6/20028317/scott-
d-pierce-jazz-bulls-are-still-on-top-of-nba-finals-tv-ratings [https://perma.cc/8YB2-
6ZHL]; Kyle Dalton, 1998 NBA Finals Game 6 Is the Most-Watched Game in NBA
History, Sportscasting (May 20, 2020), https://www.sportscasting.com/1998-nba-
finals-game-6-is-the-most-watched-game-in-nba-history/ [https://perma.cc/V5YM-
JFGQ].
49
See NFL History - Super Bowl Winners, ESPN http://www.espn.com/nfl/
superbowl/history/winners [https://perma.cc/3L2P-Z6WG] (last visited July 4,
2022).
50
See, e.g., Chad Finn, In the World of TV Ratings, the NFL in a League of Its Own,
Boston (Oct. 23, 2021), https://www.boston.com/sports/nfl/2021/10/23/nfl-tv-rat-
ings-2021-season-chad-finn-sports-media-column/ [https://perma.cc/B4PU-ET42].
The Patriots are also apparently popular in China. Aimee Lewis, How New England
Patriots Had a ‘Monumental’ Year in China, CNN (Apr. 16, 2019, 7:13 AM), https://
www.cnn.com/2019/04/02/sport/new-england-patriots-china-social-media-spt-intl/
index.html [https://perma.cc/8DVD-WPAK].
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212 Harvard Journal of Sports & Entertainment Law / Vol. 13
professional athletes.
51
Salary caps and other forms of limiting free market
competition are more apt to mirror a socialist approach to professional sports
as opposed to a capitalistic one.
Billionaire owners fight hard against free markets for professional ath-
lete services. The draft, the salary cap, and other player movement restric-
tions all help owners to achieve at least some of this aim.
52
The entry into the league begins with a draft, with the worst teams
getting the best players.
53
To impose a similar approach in other industries
would be laughable. Imagine the top law students in a law school class
being required to work for the least successful law firms after being drafted
by them. This might promote parity among law firms and balance the rela-
tive strength of firms, especially if continued for a number of years, but it is
an approach contrary to a capitalistic ethic of rewarding the highest
achievers.
This draft approach, despite the millions of dollars that accompany it,
contradicts capitalism. In all three major sports, there is a rookie cap or draft
limit, such that the amount of money one receives is limited by where one is
drafted. An open market would produce wildly different results.
54
The salary cap likewise undermines capitalist values in the name of fair
competition. This plays out in different ways across the three major sports.
MLB does not have a salary cap, but imposes a luxury tax on teams that
exceed a certain level of total compensation for their payroll in a given
year.
55
This results in economic redistribution from the wealthy teams to the
less wealthy teams.
56
Baseball has perhaps the most capitalistic model, with
teams otherwise not required to share revenue as they are in the NFL.
57
51
See generally Jonathan B. Goldberg, Player Mobility in Professional Sports: From
the Reserve System to Free Agency, 15 Sports L.J. 21 (2008).
52
It is worth noting that all of these devices violate antitrust law, but the owners
are able to use the shield of the non-statutory labor exemption to avoid liability. See,
e.g., Clarett v. NFL, 369 F. 3d 124 (2d Cir. 2004).
53
See generally supra notes 8, 9, and 10.
R
54
College sports has an open market, but imposes its own caps on compensa-
tion
—
tuition, room, board, books, cost of attendance, and other education-related
costs. See NCAA v. Alston, 141 S. Ct. 2141 (2021).
55
See generally MLB Collective Bargaining Agreement, supra note 2.
R
56
Id. The luxury tax in 2021 applied to teams with payrolls above $210 million,
with the tax increasing from 20% to 32% at payrolls $230 million-to-$250 mil-
lion, and to 62.5% for payrolls above $250 million. See 2021 Luxury Tax Payrolls,
WTOP News (Mar. 13, 2022, 8:04 PM), https://wtop.com/sports/2022/03/2021-lux-
ury-tax-payrolls/ [https://perma.cc/5YUU-8A6W].
57
See generally MLB Collective Bargaining Agreement, supra note 2.
R
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2022 / Player Movement 213
The NFL has a hard salary cap, which means that teams cannot have
total salaries in excess of the cap.
58
The absence of guaranteed contracts
makes the cap easy to adhere to in the sense that teams can always cut
players as needed.
59
The answer for player agents and teams has been to
negotiate contracts with guaranteed signing bonuses paid up front, and per
league rules, carry out the bonus equally over the years of the contract.
60
This leads to many restructuring efforts and extensions of contracts to delay
the inevitable salary cap hit for as long as possible. This also means that
teams can accumulate quite a bit of “dead” cap money for players who are
no longer on the team, but whose prior bonuses still count against the cap.
61
Interestingly, the NFL itself has a socialist model in that it engages in al-
most complete revenue sharing among its teams.
The NBA has a soft cap and a luxury tax.
62
The soft cap limits how
much teams can pay free agents, and defines maximum contracts for teams.
63
The Bird Rule, which allows teams to pay more than the market for their
own free agents, makes the cap vary slightly from team to team, as the
excess money paid in order to retain one’s own player does not all count
against the cap.
64
The luxury tax, like in MLB, taxes teams that exceed a
total compensation level.
65
The tax also has a balloon provision, imposed
against teams that exceed the luxury tax for multiple years.
66
58
See generally NFL Collective Bargaining Agreement, supra note 2.
R
59
See generally id.
60
See, e.g., Andrew Brandt, Business of Football: Understanding the Salary Cap, Dead
Money, and Impact of 2021 Decrease, Sports Illustrated (Mar. 2, 2021), https://
www.si.com/nfl/2021/03/02/business-of-football-understanding-the-salary-cap-
dead-money [https://perma.cc/K94G-24S3].
61
The recent trade between the Rams and the Lions of their quarterbacks
—
Jared
Goff for Matthew Stafford
—
was particularly noteworthy in this regard, with Goff
costing the Rams a $22.2 million dead money cap hit and Stafford costing the Lions
a $17.8 million dead money cap hit in 2021. Tyler J. Davis, Here’s the Detroit Lions’
Possible Escape Hatch if the Jared Goff Trade Doesn’t Work Out, Detroit Free Press
(Jan. 31, 2021, 3:47 AM), https://www.freep.com/story/sports/nfl/lions/2021/01/
30/detroit-lions-jared-goff-contract-matthew-stafford-trade/4329399001/ [https://
perma.cc/V6LB-593B].
62
See generally NBA Collective Bargaining Agreement, supra note 2.
R
63
See generally id.
64
See generally id.; see supra note 16.
R
65
See generally NBA Collective Bargaining Agreement, supra note 2. The
R
NBA luxury tax threshold for the 2021-22 season was $136,606,000. Luke Adams,
NBA Salary Cap for 2022-23 Projected to Be $121 Million, YardBarker (Feb. 4,
2022), https://www.yardbarker.com/nba/articles/nba_salary_cap_for_2022_23_pro-
jected_to_be_121_million/s1_14822_37170275 [https://perma.cc/9ZAE-YNGY].
66
Repeat luxury tax offenders pay an increased penalty. See generally NBA Col-
lective Bargaining Agreement, supra note 2; Yossi Gozlan, 2021-22 Season Will
R
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214 Harvard Journal of Sports & Entertainment Law / Vol. 13
Together, the draft and the salary cap theoretically promote parity, but
it is not clear that they enhance the overall financial growth of the leagues.
To be sure, they restrict the income of the players at the collectively bar-
gained rate. In the three leagues, this value hovers around fifty percent of
the revenue received annually.
67
What is not clear is whether the leagues could make even more money
by creating a freer market for athletes. The limit would be what the fans and
the television networks were willing to pay, not an arbitrary limit imposed
by billionaire owners.
68
With no salary cap and a completely free market,
some team owners might be willing to spend much more than they cur-
rently do on players.
69
Public opinion can also support limits on athlete compensation. The
same people who are willing to spend hundreds of dollars to attend sporting
events or watch thousands of hours of commercials during live telecasts
often do not favor the idea of athletes making millions of dollars.
70
The idea
of receiving compensation for playing a game offends some who argue that
playing a sport is not working for a living.
71
Changing the narrative here is important, as the time commitment of
being a professional athlete far exceeds many other professions. The constant
pressure to perform at an elite level with thousands of people watching in
person comes with an unusual level of pressure. The culture of the sports
Have the Largest Luxury Tax Payments Ever, Hoops Hype (Aug. 27, 2021), https://
hoopshype.com/lists/nba-2021-22-season-largest-luxury-tax-payments-ever/ [https:/
/perma.cc/X857-D3G2]; Luke Adams, Hoops Rumors Glossary: Luxury Tax Penalties,
Hoops Rumors (Mar. 20, 2020), https://www.hoopsrumors.com/2020/03/hoops-ru-
mors-glossary-luxury-tax-penalties-2.html [https://perma.cc/V2LL-YQGU].
67
See generally supra notes 8, 9, and 10.
R
68
To be fair, such limits are the product of collective bargaining, but those
arrangements allow for anti-competitive rules, drafts, and caps. See Dodgers Hit with
Giant Luxury Tax Bill for Leading MLB Payroll in 2021, Sports Illustrated,
https://www.si.com/mlb/dodgers/news/dodgers-hit-with-giant-luxury-tax-bill-for-
leading-mlb-in-payroll-in-2021 [https://perma.cc/Q33M-ELNC].
69
The Golden State Warriors are a prime example of this, being willing to spend
more in luxury tax than their payroll, perhaps for several more years. See Gozlan,
supra note 66.
R
70
See, e.g., Mike Florio, Why Don’t Fans Support Players Who Want More?, NBC
Sports: ProFootballTalk (June 17, 2018, 12:47 PM), https://profoot-
balltalk.nbcsports.com/2018/06/17/why-dont-fans-support-players-who-want-more/
[https://perma.cc/UCP9-7HV9].
71
This argument has also been made about other kinds of entertainers. See, e.g.,
Dire Straits, Money for Nothing, YouTube (released in 1985, uploaded Feb. 23,
2010), available at https://www.youtube.com/watch?v=WTP2RUD_cL0.
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2022 / Player Movement 215
talk world adds to this stress, as every play can be put under a microscope,
replayed millions of times, and discussed over and over again.
Athletes, though, are the entertainers. Fans certainly do not attend
games to see owners. People do not watch games to see corporate executives.
As with other performers in the marketplace, such as authors, musicians,
and artists, the market should define how much athletes are paid, not pater-
nalistic limits imposed by owners. In sum, changing the narrative has the
potential to reverse the power of billionaires and restore the power over pro-
fessional sports to the people: the fans.
II. The Rise of the Super-Team
72
Historically, general managers and team executives have built pro
sports dynasties through shrewd drafting, trades, and free agent acquisitions.
The more recent trend, however, is athletes exerting influence, taking con-
trol, and ultimately operating in the role of the general manager without the
formal title.
A. The Tool of Free Agency
1. LeBron James
What was different about the LeBron James decision to leave the
Cleveland Cavaliers and join the Miami Heat as a free agent was the manner
in which he made that decision.
73
James not only interviewed his potential
suitors but also contacted a fellow free agent, Chris Bosh, and a potential
future teammate, Dwyane Wade, to plan for a team together.
74
While
72
To be sure, there have been historical examples of super-teams
—
the Boston
Celtics of the 1960s; the New York Yankees of the 1930s, 40s, and 50s; and the
New England Patriots of the modern era. Chris Mueller, The Greatest Sports Dynasties
of All Time, YardBarker (Oct. 23, 2021), https://www.yardbarker.com/general_
sports/articles/the_greatest_sports_dynasties_of_all_time/s1__26756621 [https://
perma.cc/BV6Z-YYBS]. But these teams have been built by general managers, not
athletes.
73
ESPN, [FULL] LeBron James’ ‘The Decision’ (7/8/2010) — ESPN Archives, You-
Tube (uploaded June 11, 2018, aired July 8, 2010), available at https://
www.youtube.com/watch?v=afpgnb_9bA4; Anthony Chiang, ESPN Reveals New
Details from LeBron James’ “The Decision”, Miami Herald (June 24, 2020).
74
Brian Windhorst, Three Days in July: The High-Stakes Maneuvers that Assembled
LeBron, Wade, and Bosh, ESPN (June 29, 2020), https://www.espn.com/nba/story/_/
id/29375065/the-decision-high-stakes-maneuvers-lebron-james-dwyane-wade-chris-
bosh [https://perma.cc/PLZ6-2CB8]; Bryan Curtis, “The Decision” Reloaded: How
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216 Harvard Journal of Sports & Entertainment Law / Vol. 13
Miami Heat general manager Pat Riley may have played a role behind the
scenes in enabling the cap space to allow Miami to sign both James and
Bosh, the players were the driving force in putting together their team.
75
James and Wade further recruited other veteran players as well, several of
whom were willing to receive reduced compensation in exchange for the
chance to be on a team with such a high possibility of winning the NBA
championship.
76
The experiment was a success. The Heat made the NBA Finals for four
consecutive years, winning the championship in the second and third
years.
77
2. Kevin Durant
Several years later, Kevin Durant chose to create a super-team by join-
ing the Golden State Warriors as a free agent. The Warriors already had, by
any estimation, an outstanding team, with a core of future NBA Hall of
Famers in Stephen Curry, Klay Thompson, and Draymond Green. They had
won the NBA championship in 2015,
78
and had lost 4-3 in the finals in
2016.
79
The 2016 team also set the all-time NBA record for victories in the
regular season with 73, compiling a record of 73-9.
80
LeBron James’s Free-Agency Announcement Changed the NBA, The Ringer (June 2,
2018), https://www.theringer.com/nba/2018/7/2/17524572/lebron-james-the-deci-
sion-miami-heat-2010 [https://perma.cc/L9FS-86T7].
75
See Windhorst, supra note 74. Indeed, Wade also pitched the three players as a
R
package to the Chicago Bulls. Id.
76
Adam Davis, Miami Heat: 10 Veterans Who May Sign for the League Minimum for
a Chance at a Title, Bleacher Report (July 16, 2011), https://bleacherreport.com/
articles/769672-miami-heat-10-veterans-that-may-sign-for-league-minimum-for-
chance-at-a-title [https://perma.cc/4DH6-FHDL]; 2011/12 Miami Heat Salaries,
Hoops Hype, https://hoopshype.com/salaries/miami_heat/2011-2012/ [https://
perma.cc/QG53-PCFV] (last visited July 5, 2022).
77
See NBA & ABA Playoff Series History, supra note 45; see Windhorst, supra note
R
74.
R
78
See id.
79
See id. The Warriors arguably would have won without the suspension of
Draymond Green for multiple games during the finals, but their loss was equally
attributable to the heroics of LeBron James and Kyrie Irving. Top Moments: Cavaliers
End Cleveland’s Long Championship Drought NBA (Sept. 14, 2021), https://
www.nba.com/news/history-top-moments-cavaliers-erase-3-1-deficit-2016-finals
[https://perma.cc/FGW7-YLXT].
80
See 2015-16 Golden State Warriors Roster and Stats, Basketball-Reference,
https://www.basketball-reference.com/teams/GSW/2016.html [https://perma.cc/
T5KW-KMHK] (last visited Apr. 17, 2022).
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2022 / Player Movement 217
Adding Durant, though, took the Warriors to another level. They won
the NBA championship in 2017 and 2018.
81
And they likely would have
won a third consecutive title if both Durant and Thompson had not suffered
serious injuries in the NBA Finals the next year.
82
3. Tom Brady
Tom Brady is perhaps the most recent example of creating a super-
team through free agency. After winning six Super Bowls with the New
England Patriots,
83
Brady left New England as a free agent and signed with
the Tampa Bay Buccaneers.
84
The Buccaneers already had a strong defense,
but needed an offense that was more consistent and committed fewer
turnovers.
85
Brady also recruited several players to join him on the Buccaneers
team, such as Antonio Brown and Leonard Fournette, improving the team
significantly.
86
Notably, he convinced former New England tight end Rob
Gronkowski to come out of retirement to play for the Buccaneers.
87
81
See NBA & ABA Playoff Series History, supra note 45.
R
82
They lost 4-2 in the NBA Finals to the Toronto Raptors. See NBA & ABA
Playoff Series History, supra note 45. Durant tore his Achilles tendon and Thompson
R
tore his anterior cruciate ligament. See 2019 NBA Finals, Game 6: The Wrap, NBA
(June 14, 2019, 3:18 AM), https://www.nba.com/2019-finals-game6-the-wrap
[https://perma.cc/M9GB-Q3GB].
83
See Super Bowl History, Pro Football-Reference, https://www.pro-football-
reference.com/super-bowl/ [https://perma.cc/KL9M-TC4F] (last visited Apr. 17,
2022).
84
See, e.g., Tom Fornelli, Tom Brady Signs with Buccaneers: Why Tampa Bay Isn’t
Likely to Get Its Money’s Worth from the Future Hall of Famer, CBS Sports (Mar. 20,
2020), https://www.cbssports.com/nfl/news/tom-brady-signs-with-buccaneers-why-
tampa-bay-isnt-likely-to-get-its-moneys-worth-from-future-hall-of-famer/ [https://
perma.cc/9QK4-FQ3L].
85
Indeed, the quarterback that Brady replaced, Jameis Winston, had thrown a
league-leading 30 interceptions the season before Brady signed with the Buccaneers.
See Jameis Winston, Pro Football-Reference, https://www.pro-football-refer
ence.com/players/W/WinsJa00.htm [https://perma.cc/M37A-W637] (last visited
Apr. 17, 2022).
86
Michael David Smith, Bruce Arians: Veteran Players Want to Play with Tom
Brady, NBC Sports (Sept. 30, 2021), https://profootballtalk.nbcsports.com/2021/
09/30/bruce-arians-veteran-players-want-to-play-with-tom-brady/ [https://
perma.cc/8FPX-XAM8].
87
Isaiah Houde, Rob Gronkowski Explains How Joining Tampa Bay Matched Hopes
He Had, PatriotsWire (Jan. 22, 2021, 7:30 AM), https://patriotswire.usato-
day.com/2021/01/22/rob-gronkowski-explains-how-joining-tampa-bay-matched-
his-expecations/ [https://perma.cc/8N2A-DJ3L]. Previously maligned but uber-tal-
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218 Harvard Journal of Sports & Entertainment Law / Vol. 13
Gronkowski played a key role in the Buccaneers’ Super Bowl victory over
the Kansas City Chiefs in Brady’s first season with Tampa Bay.
88
What makes Brady’s signing with Tampa Bay a sign of a different kind
of free agency is his role in recruiting others to join him. His decision in
choosing Tampa Bay reflects a calculus that involved his ability to assemble
key pieces of his new team, as opposed to leaving that role up to the team
and hoping for the best with respect to his supporting cast.
B. Forcing Trades
It is one thing to leave for another team and co-ordinate with other free
agents to build a strong team. It is another thing altogether to convince a
team to trade you to another team when the trade is likely to result in the
formation of a super-team.
In the history of professional sports, teams have traded their superstar
athletes, sometimes for money
89
but usually for numerous draft picks. Con-
versely, teams that have perceived players as game-changing superstars have
packaged extensive assets to gain the rights to such players.
90
Usually, though, players demanding a trade have had difficulty con-
vincing management to act upon their wishes, particularly when the player
ented players Leonard Fournette and Antonio Brown also signed with the Buc-
caneers thanks to Brady’s recruiting. Vinnie Iyer, How Buccaneers Built a Super Bowl
Roster for Tom Brady: Patience in Draft, Punch in Free Agency Pay off, Sporting News,
https://www.sportingnews.com/us/nfl/news/buccaneers-super-bowl-roster-tom-
brady/72q5519y86ey1kxl287nter57 [https://perma.cc/56RT-KDEX] (last visited
Apr. 17, 2022).
88
See Super Bowl History, supra note 83; Every Rob Gronkowski Catch from 2-TD
R
Game, Super Bowl LV, NFL, https://www.nfl.com/videos/every-rob-gronkowski-
catch-from-2-td-game-super-bowl-lv [https://perma.cc/2T3U-JTKN] (last visited
Apr. 17, 2022).
89
See supra note 25; see also Finley v. Kuhn, 569 F.2d 527 (7th Cir. 1978) (up-
R
holding MLB Commissioner’s decision to block the sale of Oakland Athletics play-
ers to the Boston Red Sox and New York Yankees).
90
The two egregious examples are the Ricky Williams trade by the New Orleans
Saints and the Herschel Walker trade by the Minnesota Vikings. See John Keim,
For Redskins, 1999 Ricky Williams Deal at NFL Draft Brought Too Few Wins, ESPN
(Apr. 21, 2020), https://www.espn.com/blog/nflnation/post/_/id/307342/for-red
skins-1999-ricky-williams-deal-brought-hall-of-famer-too-few-wins [https://
perma.cc/H42N-SW29]; Nick Allen, Herschel Walker to the Minnesota Vikings: The
Best Trade in NFL History, Bleacher Report (Mar. 16, 2009), https://bleacherre-
port.com/articles/140116-the-best-trade-in-nfl-history [https://perma.cc/NQH5-
WHEG].
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2022 / Player Movement 219
is a franchise-caliber star, i.e., the most important player on the team.
91
It is
even less likely that the general manager will accommodate a player’s desires
when the likely result is the creation of a championship-caliber super-team
for some other franchise.
And yet, two NBA players in the past two years
—
Anthony Davis and
James Harden
—
have accomplished this feat. Taking notice, three similar
NFL players
—
Deshaun Watson, Russell Wilson, and Aaron Rodgers
—
at-
tempted a similar move during the summer of 2021. None accomplished
results immediately, but Watson and Wilson were traded in the summer of
2022.
1. Anthony Davis
Anthony Davis was the center for the New Orleans Pelicans.
92
Davis is
an accomplished player, having led the Kentucky Wildcats to a national
championship.
93
Davis is seven feet tall and plays the game with the speed
and agility of a guard, while also possessing the ability to shoot three-point
shots.
94
His size, speed, and shooting ability make him quite difficult to
defend.
95
91
When it has worked, it has been during the NFL draft, before the player has
ever joined the team. John Elway and Eli Manning both accomplished this kind of
move. See Jim Saccomano, Sacco Sez: Former Broncos Exec. John Beake Recalls the 1983
Draft and the Trade for John Elway, Broncos (Apr. 24, 2021, 10:00 AM), https://
www.denverbroncos.com/news/sacco-sez-former-broncos-exec-john-beake-recalls-
the-1983-draft-and-the-trade-fo [https://perma.cc/RJ78-TKHT]; John Fennelly,
Giants Legend Eli Manning Finally Opens Up About 2004 Draft Day Trade, Giants
Wire (Oct. 7, 2021, 10:55 AM), https://giantswire.usatoday.com/2021/10/07/new-
york-giants-eli-manning-finally-opens-up-2004-draft-day-trade-los-angeles-charg-
ers/ [https://perma.cc/MD8T-EPT8].
92
See Anthony Davis, Basketball-Reference, https://www.basketball-refer-
ence.com/players/d/davisan02.html [https://perma.cc/DXT5-9AU2] (last visited
Apr. 17, 2022).
93
Kentucky Holds Off Kansas to Win Eighth National Title, ESPN (Apr. 2, 2012),
https://www.espn.com/mens-college-basketball/recap?gameId=320930096 [https:/
/perma.cc/ZPA4-Q9YZ].
94
See, e.g., Rob Mahoney, Anthony Davis Is Coming for the Crown, The Ringer
(Dec. 22, 2020), https://www.theringer.com/2020/12/22/22194796/anthony-davis-
is-coming-for-the-crown; John Tjarks, The Only Player Who Can Stop Anthony Davis
is Himself, The Ringer (Sept. 22, 2020), https://www.theringer.com/2020/9/22/
21450572/anthony-davis-lakers-nuggets [https://perma.cc/Z45Y-W2WF]; Justin
Verrier, Anthony Davis Wasn’t Meant to be an Alpha
—
Just a Superstar, The Ringer
(Oct. 6, 2020), https://www.theringer.com/2020/10/6/21502938/anthony-davis-
lakers-lebron-james [https://perma.cc/T4PU-FU3U].
95
See id.
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220 Harvard Journal of Sports & Entertainment Law / Vol. 13
He played for several years on the Pelicans, a perennial loser mostly
because Davis’ supporting cast was weak and Davis was an oft-injured
player.
96
Davis wanted to play for the Los Angeles Lakers alongside LeBron
James, perennially one of the top five players in the NBA.
97
Davis did not,
however, want to wait two years until he became a free agent.
98
This was
particularly true because of LeBron’s advancing age and the theory that he
only had a few years left before his skills inevitably began declining.
99
To put pressure on the Pelicans, Davis sat out a number of games to-
wards the end of the 2018 season.
100
At the urging of Davis’ agent, the
Pelicans finally caved to Davis’ demand and traded him to the Lakers in
exchange for a bounty of draft picks and players.
101
While the Pelicans ar-
guably received adequate compensation for Davis, it is unlikely that they
would have traded him without him expressing his unhappiness and decid-
ing not to play.
102
In the end, Davis’ plan worked. The Lakers won the 2020 NBA cham-
pionship, played in the infamous bubble created at the Disney resort in
Orlando in response to the COVID-19 pandemic.
103
The Lakers did not
repeat, however, largely because of injuries to LeBron James late in the 2021
season.
104
Had Davis waited for free agency, it is possible he never would
have won a championship with LeBron James.
96
See, e.g., William Guillory, Injuries to Anthony Davis, Inconsistency Haunt Pelicans
Once Again in 114-105 Loss to Thunder, NOLA (Jan. 26, 2019), https://
www.nola.com/sports/pelicans/article_bb9153bd-4f72-557d-96ab-
f18494598912.html [https://perma.cc/B9BM-3W7P].
97
Jordan Greer, Anthony Davis’ Trade Request Was an Absolute Mess
—
and It Gave
the Lakers Star Everything He Wanted, Sporting News (Oct. 11, 2020), https://
www.sportingnews.com/us/nba/news/anthony-davis-lakers-trade-request/
f4ldgseobwvg1a6zzj7ythw0l [https://perma.cc/TQS8-KVZB].
98
See id.
99
See id.
100
See id.
101
See S.L. Price, The King Maker: Why Rich Paul Will Own the NBA Summer,
Sports Illustrated (June 12, 2019), https://www.si.com/nba/2019/06/12/rich-
paul-klutch-sports-group-lakers-pelicans-lebron-james-anthony-davis [https://
perma.cc/2QVM-XCM2].
102
See Greer, supra note 97; Aaron Kellerstrauss, The New Orleans Pelicans Won the
R
Anthony Davis Trade, Fansided, https://pelicandebrief.com/2020/02/25/new-orle-
ans-pelicans-anthony-davis-trade/ [https://perma.cc/DY3Z-JU8S].
103
See NBA & ABA Playoff Series History, supra note 45.
R
104
See Los Angeles Lakers, Basketball-Reference, https://www.basketball-ref-
erence.com/teams/ [https://perma.cc/F4CH-JJVX] (last visited July 5, 2022).
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2022 / Player Movement 221
2. James Harden
James Harden was a star player for the Houston Rockets. During his
time there, Harden perennially led the Rockets deep into the playoffs. His
unique style of monopolizing the ball and choosing to either shoot a three-
pointer, drive to the basket for a layup or a foul, or kick out the ball to his
teammates who would shoot three-pointers made the Rockets a high-scoring
team that won many games. To help Harden win a championship, manage-
ment brought in different star players, Chris Paul and then Russell West-
brook, but neither were able to help win the title.
105
The general manager, Daryl Morey, left in the summer of 2019, as did
the coach, Mike D’Antoni.
106
Seeing the roster was moving toward a re-
building period, Harden decided to sit out training camp in the fall of
2019.
107
When he did decide to play, he made it clear that he was waiting
for a trade, alienating his teammates and creating dissension on the team.
108
The pressure that Harden put on the team convinced the new general man-
ager to trade him to his team of choice, the Brooklyn Nets, early in the
2019 season.
109
While many perceived Harden’s behavior as ugly and unpro-
fessional, this behavior was arguably necessary to achieve Harden’s desired
goal
—
a trade to the Nets.
110
The Rockets did not receive the largesse of
picks and players for Harden that the Pelicans did for Davis, but nonetheless
received a decent return for Harden.
111
Harden’s plan to win a championship did not work. Part of the prob-
lem was injuries to one of the Nets’ three superstars, Kyrie Irving, who
105
See Houston Rockets, Basketball-Reference, https://www.basketball-refer-
ence.com/teams/HOU/ [https://perma.cc/6H8C-4WQS] (last visited July 5, 2022).
106
Brian T. Smith, Daryl Morey’s Departure Now Makes Sense, Houston Chroni-
cle (Oct. 28, 2020), https://www.houstonchronicle.com/texas-sports-nation/brian-t-
smith/article/Smith-Morey-departure-Rockets-now-makes-sense-15681900.php
[https://perma.cc/XV3Z-7Y8H]; Jasmyn Wimbish, Mike D’Antoni Stepped Down As
Rockets Coach During Flight Back to Houston from the Bubble, Per Report, CBS Sports
(Sept. 15, 2020), https://www.cbssports.com/nba/news/mike-dantoni-stepped-
down-as-rockets-coach-during-flight-back-to-houston-from-nba-bubble-per-report/
[https://perma.cc/SW6J-K945].
107
Tim McMahon, Inside James Harden and the Houston Rockets’ Breaking Point,
ESPN (Jan. 13, 2021), https://www.espn.com/nba/story/_/id/30528130/inside-
james-harden-houston-rockets-breaking-point [https://perma.cc/RKQ7-R2J3].
108
See id.
109
See id.
110
See id.
111
See id.
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222 Harvard Journal of Sports & Entertainment Law / Vol. 13
missed significant parts of the 2021 playoffs.
112
Even so, the Nets narrowly
lost to the eventual 2021 NBA champions, the Milwaukee Bucks, in Game
7 of the conference semifinals.
113
If the Nets could have survived the Bucks,
an NBA championship seems like it would have been possible. The 2021-22
season could have provided another opportunity for Harden and the Nets,
but Harden forced a subsequent trade to the Philadelphia 76ers, partially in
response to Irving’s inability to play home games because he was unwilling
to get the COVID-19 vaccine.
114
3. The NFL Movement (Watson, Wilson, Rodgers)
Unlike Harden and Davis, the NFL stars that attempted to force a
trade in the summer of 2021 were initially unsuccessful. Two of the three
were able to get traded in the offseason of 2022, with the third deciding he
did not want to be traded after all.
It is not obvious why the NFL players struggled where the NBA play-
ers succeeded. Part of the difference may relate to the impact a single player
can have on a basketball game as compared to a football game.
115
Part of the
difference may also relate to the more complicated nature of the NFL game,
at least for the quarterback position.
Deshaun Watson was a quarterback with the Houston Texans.
116
He
was a star for Clemson University, leading them to a national championship
112
Irving faced a different set of challenges last season, being available only for
road games as a result of his anti-vaccine stance. See Jeff Ziligitt, Unvaccinated Kyrie
Irving Makes Nets Season Debut on Road Against Pacers, USA Today (Jan. 5, 2022),
https://www.usatoday.com/story/sports/nba/nets/2022/01/05/nets-kyrie-irving-un-
vaccinated-covid-makes-season-debut/9108752002/ [https://perma.cc/NLE5-
EDNM].
113
Indeed, Kevin Durant’s toe was on the three-point line, turning what would
have been a game-winning last second three-point shot into a game-tying two-point
shot. The Nets then lost in overtime. See Jacob Camenker, Nets’ Kevin Durant Blames
His “Big-Ass Foot” for Game 7 Loss to Bucks, Sporting News (June 20, 2021),
https://www.sportingnews.com/us/nba/news/kevin-durant-big-ass-foot-nets-bucks/
1au9or4z0d1kgz1vvpcmrcirm [https://perma.cc/5NRT-FDEP].
114
Nets Trade James Harden to Sixers for Ben Simmons, NBA (Feb. 10, 2022), https:/
/www.nba.com/news/nets-sixers-james-harden-ben-simmons-trade [https://
perma.cc/KH2J-HAJY].
115
With only five players on the court, the value of a single athlete can presuma-
bly be more than being one out of eleven. See infra Part III.C.
116
See Deshaun Watson, Pro Football-Reference, https://www.pro-football-
reference.com/players/W/WatsDe00.htm [https://perma.cc/9FX8-ML55] (last vis-
ited Apr. 17, 2022).
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2022 / Player Movement 223
game win over Alabama.
117
His early NFL career has been successful as well
in leading a Texans offense that can be prolific at times.
118
The inability of
the Texans to succeed in the NFL playoffs, though, has contributed to Wat-
son being disenchanted, and ultimately asking for a trade in the 2021 off-
season.
119
Before his demands could gain traction, however, Watson began
to face a different set of challenges. Over twenty women accused Watson of
sexual assault.
120
As a result, teams that might have been interested in trad-
ing for Watson lost interest, at least for the summer of 2021.
121
Watson
subsequently sat out the 2021 season, with it remaining unclear what kind
of suspension the NFL might impose once it completes its investigation of
the allegations against Watson.
122
Late in the spring of 2022, two grand juries declined to proceed with
any of the sexual assault cases against Watson.
123
This changed the public
perception of Watson enough to regenerate interest in him. The Texans
ultimately traded him to the Cleveland Browns, who signed Watson to a
lucrative contract extension. Even without the sexual assault allegations, it is
unlikely that the Texans would have made such a deal in the summer of
2021. It was only after the combination of Watson being unwilling to par-
117
Deshaun Watson, Clemson Dethrone Alabama in Thrilling National Championship
Game, NBC Sports (Jan. 10, 2017), https://www.nbcsports.com/chicago/ncaa-talk/
deshaun-watson-clemson-dethrone-alabama-thrilling-national-championship
[https://perma.cc/8AWR-THUN].
118
Matt Weston, Pro Football Focus Has Deshaun Watson Ranked as a Top Five
Quarterback, SB Nation (July 31, 2021), https://www.battleredblog.com/2021/7/
13/22575451/pro-football-focus-has-deshaun-watson-ranked-as-a-top-five-
quarterback [https://perma.cc/MKL9-F8HF]; Was Deshaun Watson’s 2020 Season the
Best by a Quarterback in More than a Decade?, Fox Sports (Feb. 16, 2021), https://
www.foxsports.com/stories/nfl/houston-texans-quarterback-deshaun-watson-was-
the-nfls-best-quarterback-in-2020-pff-argues [https://perma.cc/X28P-6HHS].
119
Sarah Barshop, Deshaun Watson Has Asked Houston Texans to Trade Him, Sources
Say, ESPN (Jan. 28, 2021), https://www.espn.com/nfl/story/_/id/30794678/
deshaun-watson-asked-houston-texans-trade-sources-say [https://perma.cc/W4FX-
6AMS].
120
Reiss, supra note 20.
R
121
Kaelen Jones, What Would a Trade for Deshaun Watson Even Look Like?, The
Ringer (Jan. 18, 2021), https://www.theringer.com/nfl/2021/1/18/22232051/
deshaun-watson-trade-nfl-historical-comparisons [https://perma.cc/W4FX-6AMS].
122
Nora Princiotti, The NFL Passes on Taking a Stance on Deshaun Watson, The
Ringer (Oct. 27, 2021), https://www.theringer.com/nfl/2021/10/27/22749601/
deshaun-watson-nfl-trade-deadline-roger-goodell [https://perma.cc/ZJU7-LAYQ].
123
Brent Schrotenboer, Second Grand Jury in Texas Declines to Indict Browns QB
Deshaun Watson, USA Today (Apr. 1, 2022, 12:53 PM), https://www.usatoday.com/
story/sports/nfl/browns/2022/03/24/browns-quarterback-deshaun-watson-under-
scrutiny-another-grand-jury/7157721001/ [https://perma.cc/U4CD-J2GM].
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224 Harvard Journal of Sports & Entertainment Law / Vol. 13
ticipate for a year and the ongoing criminal allegations that the Texans de-
cided to move on from Watson despite his youth and talent.
Russell Wilson was a Super Bowl-winning
124
quarterback for the Seat-
tle Seahawks and the face of the franchise.
125
Wilson began to complain,
though, in the summer of 2021, intimating that he wanted certain changes
to the Seahawks roster, or in the alternative, wanted to be traded.
126
Specifi-
cally, Wilson complained about the weakness of the offensive line and the
number of hits and sacks he took in the 2020 season.
127
Further complicat-
ing the issue was Wilson’s no trade clause, which gave him the power to
veto a trade.
128
Wilson listed a handful of teams for which he was willing to
play.
129
Despite Wilson’s requests, the Seahawks refused to trade him, and
he continued to be the starting quarterback for the Seahawks during the
2021 season.
130
The 2021 season did not go as hoped for the Seahawks, and the team
began to sour on him in the same way that he had soured on the team. First,
Wilson suffered a finger injury that caused him to miss half of the season.
Also, Wilson was not the same player that he had been either before or after
the injury. In particular, his play after the injury led the team to conclude
that his best days might be behind him. In addition, the team management
and coaching has long favored a run-heavy offense with occasional passing.
Wilson has long favored a more pass-heavy offense. In 2020, fans of Wil-
son’s approach fashioned the phrase “Let Russ Cook,” advocating a more
aggressive pass offense with deep passes to star receivers D.K. Metcalf and
124
See Super Bowl History, supra note 83.
R
125
See Russell Wilson Pro Football-Reference, https://www.pro-football-ref-
erence.com/players/W/WilsRu00.htm [https://perma.cc/D2CH-K7QT] (last visited
Apr. 17, 2022).
126
Gene Chamberlain, Russell Wilson Explanation Misses the Mark, Sports Illus-
trated (June 12, 2021), https://www.si.com/nfl/bears/news/russell-wilson-does-re-
visionist-history-on-bears-trade-attempt [https://perma.cc/FK4K-WVHU].
127
See id.; Brendan Schulze, What Russell Wilson’s 4 “Approved” Trade Destinations
Say about What He’d Want from a New Team, SB Nation (Mar. 2, 2021), https://
www.fieldgulls.com/2021/3/2/22308778/what-russell-wilson-four-approved-trade-
destinations-say-about-what-he-would-want-seattle-seahawks.
128
Brandon Gustafson, Seahawks’ Russell Wilson Addresses How No-Trade Clause
Relates to His Future, Seattle Sports 710 AM (Jan. 6, 2022, 3:32 PM), https://
sports.mynorthwest.com/1551972/seahawks-russell-wilson-no-trade-clause-future/
[https://perma.cc/E2BT-8LQQ].
129
Schulze, supra note 127. The teams were the Cowboys, the Saints, the Raid-
R
ers, and the Bears. Id.
130
Wilson did miss three games as a result of an injury to his throwing hand,
but then assumed his role as starting quarterback upon his return.
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2022 / Player Movement 225
Tyler Lockett.
131
This approach was successful during the first part of the
2020 season, but started to unravel late in the season, convincing the
coaches that a more conservative, run-based offense would lead to more vic-
tories, especially against top teams.
The combination of the change in the team’s perception of Wilson and
of the growing divergence in philosophy led to the trade of Wilson to the
Denver Broncos in the spring of 2022.
132
Unlike the Davis and Harden
scenarios, it seems that the Seahawks traded Wilson not because they were
forced to, but because they wanted to in light of their perceptions of their
team’s best interests.
Aaron Rodgers, the quarterback for the Green Bay Packers, also de-
manded a trade during the 2021 off-season.
133
Rodgers has previously led
the Packers to a Super Bowl victory, and his success has continued in recent
years.
134
In 2020, he led the Packers to the NFC championship game for the
second year in a row, and was named the league’s most valuable player.
135
Rodgers’ concerns began with the Packers’ decision to draft Jordan
Love, a quarterback, in the first round of the 2020 draft, presumably to be
Rodgers eventual successor.
136
This decision perhaps sent a signal that Rod-
gers’ days with the Packers might be numbered, and his career approaching
its end.
137
Rodgers further cited the way in which he believed the organiza-
131
Billy Heyen, ‘Let Russ Cook’: Behind the Meme Defining Russell Wilson’s Early-
Season MVP Campaign
,
Sporting News (Oct. 11, 2020), https://
www.sportingnews.com/us/nfl/news/russell-wilson-let-russ-cook-meme/
1lg4dtwcxqre51y27owlm7j1cp [https://perma.cc/LAM5-CM4U].
132
Kevin Patra, Broncos Acquiring Seahawks QB Russell Wilson in Trade Including
Drew Lock, Multiple Picks, Players, NFL (Mar. 8, 2022, 1:52 PM), https://
www.nfl.com/news/broncos-acquiring-seahawks-qb-russell-wilson-in-trade-for-mul-
tiple-first-round-p [https://perma.cc/KD8Q-QB86].
133
Joe Rivers, Aaron Rodgers Timeline: A Series of Events That Led to Packers Rift,
Ignited Trade Rumors
,
Sporting News (June 17, 2021), https://
www.sportingnews.com/us/nfl/news/aaron-rodgers-trade-timeline-packers/
xrcz2aqqc3n41704v4u5dckph [https://perma.cc/NLA8-N4F9].
134
See Super Bowl History, supra note 83.
R
135
See Rivers, supra note 133.
R
136
See id. In some ways, this draft pick mirrored the Packers drafting Rodgers
while Brett Favre was still its star quarterback. Maggie Hendricks, Is History Repeat-
ing Itself in Green Bay?, KATV (May 1, 2021), https://katv.com/news/nation-world/
is-history-repeating-itself-in-green-bay [https://perma.cc/QQA2-H4GE]. But see
Bill Bender, Why Aaron Rodgers-Jordan Love Drama Doesn’t Compare to Favre-Rodgers in
Green Bay, Sporting News (April 24, 2020), https://www.sportingnews.com/us/
nfl/news/aaron-rodgers-jordan-love-brett-favre-green-bay-packers-quarterback-
drama/1oy72uxmg9trh1e635p4b4r8ni [https://perma.cc/Z826-FJ6N].
137
See Rivers, supra note 133. Given Rodgers’ age (37 in 2021), such an assump-
R
tion was not so unrealistic.
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tion had mistreated him, which included its decision not to solicit his input
on personnel decisions.
138
Going further than Wilson, Rodgers refused to report for minicamps
all summer and pressured the Packers through the media to trade him.
139
The Packers responded by offering statements of support for Rodgers, while
steadfastly refusing to trade him.
140
Despite the caliber of Rodgers’ talent,
he was unable to force the team to trade him. Throughout the entire sum-
mer of pressure imposed by Rodgers, the team remained steadfast. Rodgers
ultimately caved in, ended his holdout, and reported for camp prior to the
season.
141
He played quarterback for the Packers in the 2021 season.
142
The Packers reportedly considered trading Rodgers after the 2021.
143
They instead decided to keep him, largely by offering him a new lucrative
contract and convincing him to stay by patching up their prior differences.
Ultimately, Rodgers decided he wanted to stay with the Packers.
III. Rethinking Player Movement
Given the obstacles to star players switching teams, the question be-
comes: what can the respective players associations and the athletes them-
selves do to enhance their ability to switch teams? There are two promising
138
See id.
139
Bill Huber, Report: Rodgers Will Skip Mandatory Minicamp, Sports Illus-
trated (June 7, 2021), https://www.si.com/nfl/packers/news/rodgers-will-not-re-
port-to-minicamp [https://perma.cc/32EW-6B4R]. Rodgers went to Hawaii
instead. Jaclyn Hendricks, Aaron Rodgers Lives It Up in Hawaii with Shailene Woodley,
Miles Teller, Page Six (May 26, 2021), https://pagesix.com/2021/05/26/aaron-rod-
gers-hits-hawaii-with-shailene-woodley-miles-teller/ [https://perma.cc/MS7Y-
6ZM2].
140
See Rivers, supra note 133.
R
141
Jesse Pantuosco, Aaron Rodgers Ends Holdout from Packers, Reports to Training
Camp Tuesday, Audacy (July 27, 2021, 10:35 AM), https://www.audacy.com/sports/
nfl/aaron-rodgers-ends-holdout-reports-to-training-camp-tuesday [https://perma.cc/
2C95-JZ5E].
142
Despite another stellar season, Rodgers and the Packers lost in the playoffs
prior to reaching the Super Bowl, this time to their arch-nemesis San Francisco
49ers. See Matt Maiocco, What We Learned as 49ers Pull Off Miraculous Comeback vs.
Packers, NBC Sports (Jan. 22, 2022), https://www.nbcsports.com/bayarea/49ers/
49ers-observations-packers-shocked-sf-pulls-miraculous-comeback [https://
perma.cc/58QU-5EF3].
143
Jacob Camenker, Aaron Rodgers Contract Details: Why Packers QB May Have
Played Last Game in Green Bay, Sporting News (Jan. 23, 2022), https://
www.sportingnews.com/us/nfl/news/aaron-rodgers-contract-details-packers/
oszcukxe7v1k1lgs83rlflow5 [https://perma.cc/347J-ZGWE].
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2022 / Player Movement 227
pathways to creating such opportunities
—
reform of free agency and contrac-
tual opt-outs.
A. Reforming Free Agency
Owners have traditionally opposed free agency, and even when they
allow for its existence in collective bargaining, they seek to limit its extent.
The primary incentive is to avoid costly bidding wars that drive up the
salaries of free agents. In the NBA in particular, there is a long history of
overpaying mediocre players because they were the best option in the mar-
ket.
144
In the NFL, the owners collectively bargained for a “franchise tag”
that allows the team to extend a player’s contract for a year at a set price to
delay the player’s entry into free agency. And MLB just ended a labor dis-
pute that, at its heart, stemmed from the decreased desire of owners to pay
players large salaries in free agency.
Given that decreasing restrictions on free agency increase the costs of
player salaries, league owners will not be eager to adjust the terms of free
agency. As a result, players will have to collectively bargain for this right.
One problem that might dissuade players from pushing for increased
movement and decreased restrictions on free agency is that many of the play-
ers might care more about securing a financial floor than about opening the
market to a greater possible ceiling. The high level of turnover at the lower
level of professional sports drives the concern of most players to the current
contract, not the future one.
145
And yet, opening up the market will ultimately raise compensation for
everyone, as competition will drive player compensation, and player com-
pensation will not be subject to artificial limits set by billionaire team own-
ers. A main difference between the labor market in professional sports and
other industries is the irreplaceability of the elite players. There are a lim-
ited number of athletes who can perform at the level required to succeed in
the NFL, NBA, or MLB. As such, their leverage in the market should be
greater than those in other fields in which the workers are more replaceable.
Unions must balance the goal of securing a minimum level of compen-
sation and working conditions with the ability of individuals to negotiate
salaries to a level that the market allows. Without unions, owners would be
unable to use salary caps, impose player drafts, or place limits on free
144
Indeed, the last negotiated NBA collective bargaining agreement included an
amnesty provision that allowed teams to pay off such contracts and not count them
against the salary cap.
145
This is especially true in the NFL, where the average career is under four
years.
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228 Harvard Journal of Sports & Entertainment Law / Vol. 13
agency.
146
The extent to which the players give up the open market that
would otherwise be available in exchange for collectively bargained benefits
should make sense. In other words, the collective bargaining agreement
must give an advantage to the collective bargainers. For some superstar ath-
letes, this may not be the case.
147
Contrary to popular belief, however, bargaining for freedom of move-
ment would help all of the players. The creation of super-teams would drive
interest in the league year-round and could increase overall league revenue.
B. Contractual Opt-Outs
A second approach, outside of collective bargaining, would be for play-
ers to incorporate opt-outs in their contracts. With elite players, this prac-
tice is becoming increasingly common, at least for the last year of the
contract.
Historically, athletes wanted longer contracts to secure their future po-
sition on the team. In baseball, where contracts are guaranteed, this has been
a profitable strategy, with star players signing contracts for terms as long as
ten years. In football, that strategy is fruitless because the contracts are not
guaranteed, and players can be cut at any point without economic conse-
quence. As a result, NFL players seek large signing bonuses, where the com-
pensation is guaranteed because it is paid in advance.
148
A recent strategy among star NBA players has been to shorten the
length of their contracts. The athletes risk injury but get increased flexibil-
ity. The short, two-year or three-year contracts enable a player to choose to
join another team when it becomes desirable. And the NBA contracts are
generally guaranteed. Opt-out provisions give the team or the player (de-
pending on who holds the option) the ability to continue the contract for an
additional year or terminate it. Some players then will sign a three-year
contract with the option to opt-out after two years.
An obstacle that both NFL and NBA players face in considering how
long of a contract to sign relates to the salary cap. The NFL’s hard cap,
which limits how much a team can pay a particular player. The NBA has a
146
Gabriel Feldman, Antitrust Versus Labor Law in Professional Sports: Balancing the
Scales After Brady v. NFL and Anthony v. NBA, 45 UC Davis L. Rev. 1221, 1229-
30 (2012).
147
The disagreement over whether to participate in the 2020 All-Star Game
demonstrates this conflict. Stars like LeBron James argued for canceling the event,
but the union membership voted in favor of having the event.
148
Some NFL players have, in recent years, been able to negotiate partially guar-
anteed contracts, although this is not the norm.
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2022 / Player Movement 229
more flexible cap, but the same issues exist, limiting the amount of compen-
sation available to a player. If a player is trying to build a super-team, the
player must figure out how to get all of the star players under the salary
cap.
149
The idea of opt-out contracts would help create additional freedom for
athletes. Athletes could place the option in the middle of the contract in-
stead of at the end. For instance, athletes could sign four-year or five-year
contracts with an opt-out after one or two years. This would allow for ath-
letes to escape bad marriages with teams, or otherwise test their value in the
market after particularly successful seasons. Having one opt-out also would
provide some predictability to general managers while still maintaining
flexibility for the athlete.
Standardizing this approach makes sense in the NFL in particular
where, at the moment, the teams have all of the power. Without guaranteed
contracts, the term-contract an NFL player signs is the equivalent of an at-
will contract. The team would not lose power with opt-out contracts, but
the player would gain autonomy.
Teams would also be more likely to trade disgruntled players if the
player could opt-out within a year. The opt-out provision would encourage
the team to try to get value for the player rather than the player just leaving
as a free agent.
C. Basketball As a Unique Situation?
The initial success of Davis and Harden in forcing trades as compared
to Watson, Wilson, and Rodgers who did not initially succeed suggests that
the “forcing a trade” strategy might not be a successful approach outside of
the NBA. In the NBA, the impact of one player can be the difference be-
tween winning a championship and not really competing for one. Histori-
cally, the third superstar player has resulted in championships for many
teams. And with only five players per team in the game at one time, one
player can influence the outcome in a way that players in football (with 22
players, not counting special teams) and baseball (10 players) cannot.
150
149
In Miami, James, Bosh, and Wade agreed on salary reductions so that all
could fit under the cap. In the case of the Warriors, an unusual bump in the salary
cap because of increased revenue gave the Warriors the room to sign Kevin Durant.
150
Hockey, with five players plus a goalie on ice at a time, might seemingly
offer a similar opportunity for individual dominance. See, e.g., Wayne Gretzky,
Statmuse, https://www.statmuse.com/nhl/player/wayne-gretzky-2501 [https://
perma.cc/2WHF-D2TD] (last visited July 5, 2022) (noting Gretzky’s nickname as
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230 Harvard Journal of Sports & Entertainment Law / Vol. 13
Even with quarterbacks in the NFL, for instance, one player can only
succeed at a championship level with other good offensive players, a decent
offensive line, and a reasonably good defense. One player can tip the balance,
but not in such a way that a team might sacrifice to get the player at all
costs.
151
Similarly, a dominant pitcher in baseball will not have the same
kind of trade-forcing power because the pitcher only plays every fifth day.
And a fantastic hitter still depends on others in the lineup to get on base to
be able to have a dominant impact on the outcome of a game.
As a result, it seems unlikely that the force-a-trade strategy of Davis
and Harden will be successful in other professional sports in the near future.
It is possible that other NBA players may try to follow the lead of Davis and
Harden in the future.
D. Exploring the Value of Player Movement
In the long run, increasing player movement is a positive development
for the functioning of professional sports leagues. It invites the athletes into
a greater stake in the capitalistic side of the sport. Freer markets allow indi-
viduals to reap their true value in the marketplace, rather than one set by
league owners.
The volume of money generated by professional sports continues to
grow, and professional sports continue to face challenges concerning how to
share that revenue. Owners make every effort to cap the amount of revenue
that athletes receive. Collective bargaining relationships have kept these
figures around fifty percent of league revenue in most sports.
152
To be sure, the effect on all players will not be the same. The elite
athletes will receive a greater share of the profit than the marginal ones. But
that is generally how free markets work
—
those that can offer a superior
product or service receive higher pay.
There are other advantages to increased player movement. The fan in-
terest often grows with the addition of a new player. The new player’s game
against his former team becomes “must-see” television. The new player can
excite the fan base, even if he is unable to deliver a championship; the new-
found competitiveness that a new player offers may be enough to provide
hope and reinvigorate interest.
The trend toward gambling driving sports interest also resonates with
the idea of increased player movement. New players in new situations in-
the “Great One”). But hockey players typically only spend 2-3 minutes at a time on
the ice before switching out for other players because of fatigue.
151
See supra note 90.
R
152
See generally supra notes 8, 9, and 10.
R
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2022 / Player Movement 231
creases unpredictability, makes outcomes more uncertain, and allows for
players to thrive in new situations.
Increased player movement also allows players to escape bad situations.
The draft can cause players to end up on teams that make their individual
success difficult if not impossible. Despite teams’ best efforts, sometimes
players just do not fit. But limiting the ability to move to teams deciding to
trade players limits player autonomy and makes it likely that years will be
wasted in bad situations. If leagues insist on having drafts and preventing
players from choosing which team they want to play for, then players should
bargain for the right to structure contracts in a way that allows them to
escape bad situations.
Interestingly, allowing increased player movement might not result in
a proliferation of super-teams. Sometimes less-talented individuals that have
a longer history playing together are able to defeat more star-laden rosters
that have not gelled.
The increased player movement could also help address the recent phe-
nomenon of tanking. In the NBA in particular, there has been a growing
problem of teams giving up winning for multiple years in order to assemble
championship teams.
153
With more frequent player movement, waiting for
the next lottery pick would not be the favored approach; creating a core of
players who opt out to play together would be a favored strategy.
Conclusion
This paper has sought to explore the recent phenomenon of athletes
exerting increased autonomy over their choice of teams in professional
sports. In doing so, it has questioned long-held values in favor of home town
stars; parity; and paternalistic, anti-capitalistic restraints on player move-
ment. It then suggested that athletes should strive to broaden their freedom
of movement by collectively bargaining for decreased restrictions on free
agency and incorporating opt-out provisions into their contracts. Finally,
the paper concluded by highlighting the benefits of increased player move-
ment in professional sports.
153
Former 76ers general manager Sam Hinkie termed this approach “The
Process.”
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