Los Angeles Clippers owner Donald Sterling will have his fate decided by the NBA’s 29 other owners during a hearing June 3, and his lawyers will have to mount a complex and monumental defense for their client to keep his team and avoid lifetime banishment from the league.
According to professional and academic legal experts around the country, Sterling’s attorney, the accomplished and high profile Max Blecher, will likely center his case on whether or not a privately recorded conversation should be used against his client, that the harm to the NBA hasn’t been nearly as catastrophic as the league has made it out to be and that the NBA has denied Sterling due process.
The league and its owners will listen to Sterling’s arguments and then vote, with three-fourths, or 22, votes needed to oust the NBA’s longest tenured owner.
The accusations levied against Sterling in the NBA’s quest to terminate his ownership include: taking and supporting discriminatory actions and positions that have had an adverse effect on the league and its teams, destroying and falsifying evidence during the league’s investigation, and refusing to pay the $2.5 million fine imposed by Commissioner Adam Silver.
Sterling appears to have several possible defenses.
Possibly Illegal and Private Recording
Sterling’s battle began on April 26 when TMZ published the now infamous recording with former girlfriend V. Stiviano. The 80-year-old chastised her for associating with African Americans, and bringing them to Clippers games, as well as posting pictures with African American’s on social media sites.
Prof. Matt Mitten, Director of the National Law Institute at Marquette, said a criminal court might find the recording to be inadmissible, but because the NBA is a private entity they can use the salacious remarks against Sterling even though they were said in private.
Mitten pointed out that Sterling signed agreements with the league that bind him to the NBA’s Constitution, and thus he’s beholden to its policies.
The question of whether Sterling’s First Amendment rights under the U.S. Constitution have been violated has also been floated, but Mitten stressed that the amendment provides a restraint on the government from infringing on an individual’s right to free speech, and there is no such protection from a private entity like the NBA.
It’s also believed Sterling could use his advanced age to his benefit.
“He’s playing the age card and his wife is too,” said Domenic Romano, a sports attorney and founder of Romano Law. “[Shelley Sterling] alluded to something of light dementia, and he could say ‘don’t punish me, I’m an old man’ to gain sympathy.”
Impact Blown Out Of Proportion
The league will employ Article 13(d) in its constitution, which says an owner’s membership can be terminated if they “fail or refuse to fulfill” their obligations under contract in a way that impacts the league or other owners in a negative way.
Doriane Lambelet Coleman, Duke Professor of Law, said this could be the most interesting and strongest argument for Sterling’s defense.
The NBA has asserted that Sterling’s actions have called into question the league’s “commitment to diversity and inclusion,” while damaging its relationships with fans, players, other owners, and perhaps most importantly sponsors.
The uproar from fans, and especially Clippers players who at one point were contemplating a boycott during the playoffs, could have cost the NBA millions of dollars when attention is squarely focused on its best teams and television revenue remains one of the league’s most important income streams. Clippers sponsors also pulled out of their relationship with the team.
Sterling could likely fire back by claiming that the impact from his comments was blown out of proportion. While there was the threat of a boycott, none actually occurred, and though the Clippers lost sponsors, no other NBA team did as a result of his private comments.
Lambelet Coleman added the NBA is dependent on the “good will” of the public and its corporate sponsors, and that owners are then subject to “morals clauses” that make sure the league’s image or finances aren’t compromised.
“He may have a right in the abstract to be a racist,” Lambelet Coleman said. “But because it is adverse to the interests of the Clippers and the NBA, as a member of the NBA, he does not have the right to racist conduct.”
No Due Process
After the league released its charge against Sterling on Monday, Blecher reportedly requested the league give Sterling three months to prepare for his hearing with owners. Instead, he now has until May 27 to respond to the league and two weeks until the June 3 vote.
Sterling might argue that the NBA’s swift four-day action, from the time the recording was released until Silver announced the decision to ban him for life, was unfair and that his attorney’s weren’t given ample time to discover evidence or build a case.
However, since the NBA is a private entity, and they will hold Sterling accountable for his actions in private setting, due process is not a right the league is legally required to offer him.
The filing of an injunction before the June 3 hearing and vote is one way Sterling can prolong the process, but Romano said Sterling’s lawyers will have to prove that he was the subject of irreparable harm, that the merits of Sterling’s case are strong enough to win, and that Sterling remaining part of the NBA won’t hurt the league as much as it claims.
Every expert mentioned the Clippers have likely reached the apex of their worth, with the team valued at $575 million by Forbes, but a sale could reach well past $1 billion given the size of the Los Angeles market and lucrative television contracts. It would actually be in Sterling’s best interest to sell now, and the longer he holds onto the team the more it decreases in value.
Also, the NBA can counter by claiming that with players threatening to boycott, sponsors scared to be associated with a perceived racist, and fans likely unwilling to show support at home or road games next season, that the league will be harmed far worse than Sterling.