Yeah, I would. If they're reacting to the publicly available stuff on the Daktronics story from yesterday. Do I think that Ballmer used these arrangements as cap circumvention? 100%. Do I think that's as easy to prove as I'm hearing discussed? No, not remotely.
- No show contracts are way more common than people think (I would imagine that LoF would know better than any of us their prevalence in hollywood). People are scoffing that Kawhi doesn't have the profile to warrant them, but all you can really do with that is prove that the company made a financial mistake, unless if there is a legit smoking gun in the emails or testimony. We can all "know" that Aspiration threw a bag at Kawhi of equal size to the bag that Ballmer threw at them. But unless the NBA wants to be tied up in lawsuits for the next decade with Ballmer and Kawhi, that's the suggestion of wrong doing, not actual proof. That stuff can help support theories that are held up by real evidence, but it's not real evidence by itself.
- What "everyone in the office knows and jokes about" isn't actual evidence of wrong doing. Neither is Kawhi being the only athlete Daktronics sponsored. They definitely suggest that evidence of wrong doing exists somewhere, but without the actual evidence, there's nothing there. Again, clearly there is fuckery here. Clearly. But knowing that there's fuckery and proving that there's fuckery is two different things. Now, the NBA isn't held to the same kind of standards that a Judge is in determining facts, but this definitely goes to court with Ballmer and Kawhi if there's no smoking gun and the NBA acts on it anyway.
So, a similar thing would be what tv/film productions do with acting deals. The issue is that when you hire a SAG actor, in addition to paying the negotiated fee for the acting services, you have to also make pension and health contributions to SAG, which are not insubstantial. The fuckery that's been going on for years is that productions will bifurcate the deal - one acting agreement that pays as little a portion of the fee as reasonably plausible, and one side letter/consulting deal/executive producing deal/marketing deal, you name it, where they dump the vast majority of the fee and, if ever called to defend it, will say it was for other services that the actor provided which are not acting and not subject to the SAG payments.
These happen all the time on smaller productions, and the net effect is that SAG, which has pension and health payment obligations to thousands of past and current actors, is getting screwed out of a ton of money which they need to make those payments. So, here and there, where they see a couple of big name actors on a production and see their acting deal filed with them (which needs to happen per the union rules to prove the minimum fee was paid), and the amount is silly, like $75k for someone they know makes at least $2M for such a production, they'll audit the rest of the deal and ask to see the other contracts. When they see the EP deal or the marketing deal and it has $1M - $2M loaded on it, they make a stink and claim against the production for the unpaid health and pension amounts, and then either they fight or settle it out.
That's the closest sort of arrangement to a no show situation that you'll see in film and tv. The goal is to avoid the union payments, not to actually not perform services - because they still are performing the acting services for the full value in the end through the combined contracts, and if they're not, they'll get fired off the production because nobody wants to pay money for nothing. Not too different than trying to avoid a salary cap with an arrangement like Kawhi's.
But the key difference seems to be, Kawhi did zero endorsing under the endorsement deal. Between all the clients and all the deals I've seen and done, I've never seen anyone get paid - and a massive amount, no less - to do nothing. The notion of a player endorsing a jumbotron manufacturer is on its face ridiculous - how would Kawhi get them any more business? Definitely and obviously not through ads, so through private wine and dine meetings with stadium owners? It's just so dumb. But shit, if they were going to do this, then why not actually produce a couple of stupid commercials and put them out there? They were so insanely lazy about the whole thing.
You have to get something for what you pay for. I'm just recalling the closest situation that I ever had to this. One of my clients was in a successful film where they were lead of a main cast of four and making the most by far. The studio set up a sequel, and what those snakes did is that they went to the other three actors first and gave them the same amount that they paid my client on the first one (a 4x raise for each of them), and gave them all MFN rights (nobody could earn more). They then came to us and offered the exact same amount that they paid on the first film, and said sorry, we can't pay more because then we'd have to match the other three and pay them the same and that would blow up the budget. Just the stupidest, lowest, most ungrateful and shady thing to do to the lead, who was the whole reason the film did well and earned a sequel. And if they didn't make a deal we liked, there would be no sequel because we could just decline. Anyway, after a month of my telling them to buzz off and go figure it out because we weren't doing the sequel for the same money as the first one, they escalated it by bringing in one of the top guys to talk to me, who I'm friends with and done other deals with, and we always just play the game of running through the motions of negotiation with the lesser execs and then he comes in and agrees to give me mostly what I want and makes himself a hero for his team. So, what was agreed was that we were going to agree to the same number on our main deal, but then we were going to have a separate agreement which would pay the client a bunch of money to keep them "available" for the period leading up to the sequel for consultation and other nonsense (i.e., a total sham) - and that's how we got our raise and the other three actors weren't matched (nor did they ever find out about it).
But the point of the story is, if it came out, it would still make sense because the studio got something for the side deal - they paid more to get the actor to agree to the sequel. What the heck did the scoreboard manufacturer get? The smoking gun would have to be how Ballmer put the money in their hands to pay Kawhi. Overpay for a scoreboard/jumbotron? They certainly didn't pay him with their own money for nothing.