Legally, NBA ban is likely a done deal; team sale is a more complicated matter

After an NBA investigation into racially insensitive comments made by Los Angeles Clippers owner Donald Sterling, Commissioner Adam Silver announced Sterling is banned from the league for life. (Reuters)
April 29

The punishment handed down to Los Angeles Clippers owner Donald Sterling has few precedents in big-time American sports.

Now, the question is: Does Sterling have any chance of un­doing the sanctions in court?

The Clippers owner has a history of waging expensive legal fights against his enemies. But on Tuesday, experts on sports law said that he would probably not be able to persuade a judge to overturn all of what the league’s commissioner had done.

The problem is that Sterling, as an NBA owner, had agreed to be bound by the NBA’s constitution. And that document gives the league’s commissioner, Adam Silver, broad powers to punish owners for actions including “conduct prejudicial or detrimental” to the league. Silver announced that he would fine Sterling $2.5 million, impose a lifetime team and NBA ban, and try to force a sale of the franchise.

Experts said the best of Sterling’s legal options would be trying to stop a forced sale of his team. That decision must be approved by three-quarters of the NBA’s owners. Sterling could stop it by persuading enough owners to reject the motion, or — if that doesn’t work — by persuading a judge to throw out the owners’ vote.

But even that wouldn’t be much of a victory. It would only allow Sterling to keep ownership of a team he couldn’t run — a business that might rapidly drown under the weight of his bad reputation.

“He may be a belligerent S.O.B., but he’s not insane,” said Gary R. Roberts, a professor of sports law at Indiana University. “I don’t think that the other league owners are going to be able legally to kick him out. But they’re not going to have to. This guy doesn’t want to own a business that will be bankrupt in short order.”

In recent years, major sports leagues have been inclined to deal with misbehaving owners with suspensions and with behind-the-scenes pressure to sell out. In the 1990s, for instance, Cincinnati Reds owner Marge Schott was suspended by Major League Baseball after making a series of racially offensive comments. When the suspension was over, Schott sold.

But Sterling’s case has been handled more forcefully. The recording of his offensive remarks to a female friend — in which Sterling told her “don’t bring black people” to Clippers games — was made public while the Clippers were playing in the first round of the NBA playoffs. It also involved one of the league’s most reviled figures: Sterling, an owner who had been repeatedly accused of offensive comments in the past.

After a short investigation, league officials said Sterling admitted that the voice on the recording was his. On Tuesday, Silver said he would punish Sterling with all the tools at his disposal.

“I will urge [the board of NBA team owners] to exercise its authority to force a sale of the team and will do everything in my power to ensure that that happens,” Silver said in a news conference.

The Clippers franchise released a statement that said: “We wholeheartedly support and embrace the decision. . . . Now the healing process begins.” Sterling did not release a statement.

If Sterling does bring a legal challenge, experts said Tuesday, the first thing to understand is that the First Amendment may not help him much.

“Under the First Amendment, people have the right to be morons,” said Bob Corn-Revere, a lawyer at the Davis Wright Tremaine firm and president of the First Amendment Lawyers Association.

But, Corn-Revere said, those hypothetical morons are protected only from punishment by the government itself. In this real-world case, Sterling’s punishment is coming from a private group — whose rules he agreed to obey.

“The First Amendment says ‘Congress shall make no law,’ ” Corn-Revere said. “Not ‘The NBA shall have no rule.’ ”

That means Sterling would have to convince a judge that the NBA had mis­applied its rules to punish him with the fine and the lifetime ban. But that, also, appears difficult. The NBA’s constitution says that a commissioner’s decisions are “final, binding, conclusive, and unappealable.”

“Courts have consistently held that it’s up to commissioners to decide what constitutes the best interest of the league. And how could you argue that this doesn’t,” Roberts said. “He might try to make an argument that it was a private conversation, and he didn’t do anything or say anything in public. . . . I think that’s a losing argument.”

To force Sterling to sell his team, Silver must convince three-
quarters of NBA owners to go along. At the close of the news conference, Silver said, “I fully expect to get the support I need from the other NBA owners to remove him.”

But there, his case could rest on shakier ground.

The league constitution allows owners to be forced out for ­offenses such as gambling, rigging games or ordering the team not to show up for games. There is nothing that fits Sterling’s comments precisely. The closest might be a provision to force a sale if an owner should “fail or refuse to fulfill its contractual obligations . . . in such a way as to affect the Association or its Members adversely.”

Some NBA owners might not think Sterling’s comments would qualify as that. On Monday, even before Silver announced the punishment, Dallas Mavericks owner Mark Cuban expressed skepticism about forcing a sale.

“I think you’ve got to be very, very careful when you start making blanket statements about what people say and think, as opposed to what they do. It’s a very, very slippery slope,” Cuban said.

On Tuesday, Cuban tweeted that he agreed with the actions Silver had taken against Sterling.

If Sterling does sell the Clippers — either on his own or because he’s ordered — he will lose the franchise he has owned for 33 years. But he will still get to keep the money. And, based on recent estimates, the Clippers are likely to fetch more than $500 million.

“He’s sitting on this huge asset,” said Stephen F. Ross, a law professor at Pennsylvania State University. “I mean, he’s just going to make a fortune out of this.”

Matt Zapotosky covers the federal district courthouse in Alexandria, where he tries to break news from a windowless office in which he is not allowed to bring his cell phone.
SECTION: {section=politics, subsection=null}!!!
INITIAL commentConfig: {includereply=true, canvas_permalink_id=washpost.com/8bvh5zpd9k, allow_comments=true, commentmaxlength=2000, includeshare=true, display_comments=true, canvas_permalink_app_instance=bg52e9xhqr, display_more=true, moderationrequired=false, includefeaturenotification=true, comments_period=14, defaultsort=reverseChronological, canvas_allcomments_id=washpost.com/km4ey0dajm, includevoteofftopic=false, allow_videos=false, includesorts=true, markerdisplay=post_commenter:Post Commenter|staff:Post Writer|top_commenter:Post Forum|top_local:Washingtologist|top_sports:SuperFan|fact_checker:Fact Checker|post_recommended:Post Recommended|world_watcher:World Watcher|cultuer_connoisseur:Culture Connoisseur|weather_watcher:Capital Weather Watcher|post_contributor:Post Contributor, childrenitemsperpage=3, includeheader=true, includeverifiedcommenters=true, defaulttab=all, includerecommend=true, includereport=true, maxitemstop=3, source=washpost.com, allow_photos=false, maxitems=15, display_ugc_photos=false, includepause=true, canvas_allcomments_app_instance=6634zxcgfd, includepermalink=false}!!!

UGC FROM ARTICLE: {allow_comments=true, allow_photos=false, allow_videos=false, comments_period=14, comments_source=washpost.com, default_sort=, default_tab=, display_comments=true, is_ugc_gallery=false, max_items_to_display=15, max_items_to_display_top=3, moderation_required=false, stream_id=}!!!

FINAL commentConfig: {includereply=true, canvas_permalink_id=washpost.com/8bvh5zpd9k, allow_comments=true, commentmaxlength=2000, includeshare=true, display_comments=true, canvas_permalink_app_instance=bg52e9xhqr, display_more=true, moderationrequired=false, includefeaturenotification=true, comments_period=14, defaultsort=reverseChronological, canvas_allcomments_id=washpost.com/km4ey0dajm, includevoteofftopic=false, allow_videos=false, includesorts=true, markerdisplay=post_commenter:Post Commenter|staff:Post Writer|top_commenter:Post Forum|top_local:Washingtologist|top_sports:SuperFan|fact_checker:Fact Checker|post_recommended:Post Recommended|world_watcher:World Watcher|cultuer_connoisseur:Culture Connoisseur|weather_watcher:Capital Weather Watcher|post_contributor:Post Contributor, childrenitemsperpage=3, includeheader=true, includeverifiedcommenters=true, defaulttab=all, includerecommend=true, includereport=true, maxitemstop=3, source=washpost.com, allow_photos=false, maxitems=15, display_ugc_photos=false, includepause=true, canvas_allcomments_app_instance=6634zxcgfd, includepermalink=false}!!
Comments
SECTION: {section=politics, subsection=null}!!!
INITIAL commentConfig: {includereply=true, canvas_permalink_id=washpost.com/8bvh5zpd9k, allow_comments=true, commentmaxlength=2000, includeshare=true, display_comments=true, canvas_permalink_app_instance=bg52e9xhqr, display_more=true, moderationrequired=false, includefeaturenotification=true, comments_period=14, defaultsort=reverseChronological, canvas_allcomments_id=washpost.com/km4ey0dajm, includevoteofftopic=false, allow_videos=false, includesorts=true, markerdisplay=post_commenter:Post Commenter|staff:Post Writer|top_commenter:Post Forum|top_local:Washingtologist|top_sports:SuperFan|fact_checker:Fact Checker|post_recommended:Post Recommended|world_watcher:World Watcher|cultuer_connoisseur:Culture Connoisseur|weather_watcher:Capital Weather Watcher|post_contributor:Post Contributor, childrenitemsperpage=3, includeheader=true, includeverifiedcommenters=true, defaulttab=all, includerecommend=true, includereport=true, maxitemstop=3, source=washpost.com, allow_photos=false, maxitems=15, display_ugc_photos=false, includepause=true, canvas_allcomments_app_instance=6634zxcgfd, includepermalink=false}!!!

UGC FROM ARTICLE: {allow_comments=true, allow_photos=false, allow_videos=false, comments_period=14, comments_source=washpost.com, default_sort=, default_tab=, display_comments=true, is_ugc_gallery=false, max_items_to_display=15, max_items_to_display_top=3, moderation_required=false, stream_id=}!!!

FINAL commentConfig: {includereply=true, canvas_permalink_id=washpost.com/8bvh5zpd9k, allow_comments=true, commentmaxlength=2000, includeshare=true, display_comments=true, canvas_permalink_app_instance=bg52e9xhqr, display_more=true, moderationrequired=false, includefeaturenotification=true, comments_period=14, defaultsort=reverseChronological, canvas_allcomments_id=washpost.com/km4ey0dajm, includevoteofftopic=false, allow_videos=false, includesorts=true, markerdisplay=post_commenter:Post Commenter|staff:Post Writer|top_commenter:Post Forum|top_local:Washingtologist|top_sports:SuperFan|fact_checker:Fact Checker|post_recommended:Post Recommended|world_watcher:World Watcher|cultuer_connoisseur:Culture Connoisseur|weather_watcher:Capital Weather Watcher|post_contributor:Post Contributor, childrenitemsperpage=3, includeheader=true, includeverifiedcommenters=true, defaulttab=all, includerecommend=true, includereport=true, maxitemstop=3, source=washpost.com, allow_photos=false, maxitems=15, display_ugc_photos=false, includepause=true, canvas_allcomments_app_instance=6634zxcgfd, includepermalink=false}!!
Show Comments