[NBA Gossip] Donald Sterling Hates the Blacks, Including Magic

Mang this gonna be good

 

The problem with the sue everyone and depose/do discovery on everyone idea is that all of the other owners/organizations have plausible deniability (i.e. they can say, i don't ever recall an incident such as x,y,z happening). It would also certainly take a large sum of money for Sterling to do so and he could be countersued for frivolous lawsuits/harassment.

 

I don't see how the NBA forces him out unless he gets a bid he can't refuse. It doesn't look like they have any way to force him out as things stand.... But who knows

 

If they boot him as owner, the NBA will sell the franchise and he'll get the proceeds.

 

michaeljacksonpopcorn.gif

 

<blockquote class="twitter-tweet" lang="en"><p>NAACP L.A. president resigns amid Sterling controversy <a href="http://t.co/1E4yvFJVZT">http://t.co/1E4yvFJVZT</a></p>&mdash; USA TODAY (@USATODAY) <a href="https://twitter.com/USATODAY/statuses/462049243889299456">May 2, 2014</a></blockquote>
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The question, I think, is whether this question has any relevance.

The NBA isn't trying to remove Sterling because of what he said. The NBA is doing it because Sterling is costing the NBA money, with sponsors pulling out and the players and others in an uproar.

 

I guess its, he just wants to throw mud on the wall and let it stick where it may. Has nothing to do with winning the case. Could be why Mark Cuban is so nervous

..and again, the guy definitely needs to be gone...

 

so ESPN's sources are confirming the dude has prostate cancer.

 

This.

This is just the equivalence of legal bullying. He's basically just trying to intimidate the NBA by threatening to air the NBA's dirty laundry. I'd be surprised if a judge would allow it unless Sterling can make an argument that it's material to the case.

As long as the NBA sticks to the precept that they are removing Sterling due to contractual violations and financial impact, it would be a hard case for Sterling to make to a judge.

I suspect the key to beating Sterling is sticking to Article 13(d)

(d) Fail or refuse to fulfill its contractual obligations to the Association, its Members, Players, or any other third party in such away as to affect the Association or its Members adversely.

This is legally applicable. Every sponsor and advertising contract is a 3rd party contract. All those contracts have moral and reputational risk clauses. By violating those clauses, it gave the sponsors the freedom to terminate their advertising relationships with the Clippers and potentially terminate them with the NBA.

As long as they stick to this as their justification for the sale, then the racial behavior of other NBA Owners and employees is irrelevant as long as it doesn't result in the termination of third party contracts.

 

This argument still seems shaky to me and a very broad interpretation of the language in Article 13(d). Should the NBA argue that a breach of a morals clause (assuming those sponsorship Ks had morals clauses vs. the more commonly found behavior clause) to sponsors gives the NBA power to divest Sterling of his ownership interest in the Clippers, the owners would be opening the door to all kinds challenges to their continued ownership of an NBA team if a mere loss or suspension of sponsorship is cause for a violation of 13(d).

Let's not even address the issue that this argument doesn't go against the actual intent of Article 13, which is clearly meant to be used in the case of an owner's financial insolvency, and assume the Commissioner can invoke 13(d) based on a technicality. Where would the NBA draw the line? What if an owner publicly declared that he/she was pro-choice, much to the ire of sponsors with a pro-life stance who then elected to pull sponsorship? What if an owner caused his team to lose sponsors because he/she was mired with rumors of infidelity? Mind you, Sterling legally has not committed a crime. If sponsors had distanced themselves from the Mavs, should Cuban's ownership also have come into question after being indicted on insider trading? What if advertisers decide to pull sponsorship because Prokhorov found himself once again in the company of prostitutes on his private jet (allegedly) or for his ties to Russia amidst the Ukraine crisis? What about a loss of sponsorship over an owner's DWI?

I understand that any termination of ownership action still has to garner 3/4 of the votes of NBA owners and thus unlikely to happen based on the aforementioned hypos. However, wars have been started over less and allowing such a precedent that would leave NBA owners completely open and dangerously close to a forced and total divestment of their ownership interest, on the grounds that an opinion they shared, or an action unrelated to the running of an NBA team which resulted in a loss of sponsorship (which I imagine is something that probably happens more often than not for various reasons), may not be in the owners' best interests.

That being said, I don't think Donald Sterling has any business owning an NBA team. I just don't believe that forcing Sterling out (let alone his wife's ownership interest in the Clippers) will be as easily and expeditiously achieved as the Commissioner seems to think should Sterling's penchant for litigation win out and he decides to fight the ouster out of spite.

 

I suspect that the argument would be that article 13 exists to address franchises which have real threats to their viability vs exclusively addressing franchises that are already insolvent.

The case that I would make in order to justify its use would be that the extremity of the public reaction combined with the reaction of advertisers and contractual partners like the NBAPA as well as potential future litigation risk under title 7 of the Civil Rights Act was a direct threat to the future viability of the franchise.

I would then argue the following...

1. The cancellation of contracts by not only a few sponsors, but every sponsor. The Clippers didn't just lose a few sponsors, EVERY major sponsor cancelled or put their advertising on hold.

2. The NBAPA has made clear that not only were they going to walk out on the play offs (costing an enormous amount of money and potentially destroy the season), but that they were going to request that the NBA release the current Clippers players from their contracts, as well as effectively black list the Clippers so that not a single player would EVER sign with the Clippers in Free Agency. Several Sports agents had also made public statements that in future they would steer their clients away from the Clippers. This is in addition to the threat that skilled coaches would also avoid signing with the Clippers thus crippling the team's ability to field a competitive team. There was also reports that Doc Rivers would not return if Sterling remained an owner. There was also the possibility of the NBAPA or the players filing lawsuits against the Clippers and the NBA for not acting to address a hostile work place.

3. Sterling remaining as an owner opens the Clippers as well as the NBA to potential liability and prosecution under title 7 of the Civil Rights Act and California employment law. I refer you to the following article...

http://www.govdocs.com/donald-sterlings-racist-comments-merit-eeoc-enforcement/

This is all off the top of my head of course. I'm sure that the veritable army of lawyers and investigators that the NBA can muster could find many more additional examples of how Sterling's conduct and continued owners would essentially destroy the viability of the Clippers as a functional franchise within the NBA, and further justify their use of article 13.

I'm sure Sterling will attempt to attack the applicability of Article 13 to his particular case, however if I was arguing on behalf of the NBA, I would state that the entire purpose of the constitution and Article 13 was to be able to protect and maintain the functionality and integrity of the Clippers franchise as well as that of the NBA as a league, and to remove franchises that are either immediately non-viable due to financial circumstances, or going to be non-viable due to forward looking liability and damage.

Personally, I think that if you're Sterling's lawyers, you'll have an uphill battle to prove that his ongoing ownership of the Clippers would not have a significant adverse material impact upon the future viability of the franchise as well as an adverse impact upon the NBA as a whole.

 

I don't know what the statute of limitations is, but there will be former Clippers coming out of the woodworks, especially Elgin Baylor and Baron Davis.

 

The league should have thought about this possibility before attempting to take his team away. There is a reason that David Stern never banned an owner, and as far as I know, no owner of a professional sports team in America has been forced to sell.

Sterling (as I have said from day 1) has legal recourses to the NBA forcing him to sell his team. I ultimately do not know if he wins (I suspect he would), but as an attorney I can tell you he has a strong enough argument to probably fend off a directed finding.

 

According to an old article David Stern did try once because Sterling talked about tanking out in the open in front of other owners to get the first pick.

Apparently they just let it die out when he said he would sell the team but never did.





Secondly, Adam Silver has a much more prestigious law record and background than Sterling does, and most likely the most influential law minds to pull from in this case and any other.

 

I agree that the NBA wouldn't win a directed finding depending on how Sterling seeks to suspend the sale. I don't believe Sterling would win due to the specific construction of language in regards to right of final arbitration or waiving of legal recourse.

As for Stern not forcing his removal, Stern also did not have material proof of adverse impact on the league to the same degree that Silver now has at his disposal. Arguing Sterling's impact on the NBA was a hypothetical under Stern. Under Silver it is at least in part a reality.

Courts do not typically give much weight to damage under hypothetical but impossible to measure circumstances. They do give significant weight to damage and potential liability when the circumstances have at least in part come to fruition.

It's one thing to argue sponsor flight when sponsors have not actually fled. That argument is very different when you have sponsors actually fleeing.

My personal hunch is that this doesn't get resolved in court but via a settlement of some kind or through the death of Sterling before the case reaches court. However, like all unusual litigation, it certainly provides some interesting fodder for debate doesn't it? :grin:

 

I agree with you that the NBA and Adam Silver are really hoping that that Sterling will pass away before the issue gets too much publicity in court.

From the NBA's perspective, this isn't just about getting rid of Sterling, this is about keeping the issue out of the headlines. Sterling does not mind it being in the headlines, he wants a pound of flesh and feels wronged.

I could see this matter constantly reappearing in the headlines, to the horror of the NBA.

There is ample evidence/basis for a Court to rule either way on this issue.

I am surprised that the NBA did not reach an agreement where Sterling was banned for life, but his wife gets to run the team. I suspect that this is what the NBA and owners wanted, but the NBAPA wouldn't go for it.

 

That's because she's already doing that along with the son in law.

 

Spoiler

@Torocan, I see your point. And believe me, I hope that's the way this goes down, but it's still seems like a fairly broad interpretation of the powers afforded to the NBA in Article 13.

Aside from the loss of sponsorship, everything else is pure speculation as to what could happen should Sterling remain owner of the Clippers. While I don't doubt the players intended to boycott the Clippers, if history is any indication, everyone has a price. Perhaps the Clippers won't be able to field the star-studded lineup they currently enjoy, but it doesn't mean the lure of NBA money wouldn't at least tempt 8 or 10 D-league or international players who wouldn't have a shot on an NBA roster or NBA money. And let's be honest, outside of the last few years, Clippers haven't fielded a competitive team in god knows how long. Competitiveness can't be a measuring stick (although perhaps it should) as to whether one should be allowed to remain the owner of an NBA team (See Bucks, Bobcats, etc.)

Regarding Title VII, the players/NBAPA could file a suit with CA State/EEOC (not sure how they would bring one against the NBA itself while the NBA is trying to get rid of Sterling) in order to force the failed 13(d) issue provided the players reach a favorable outcome. Would the filing of the suit alone be enough to use 13(d)? Or would they need a decision of a hostile work environment. The latter I imagine would take a long time and even one of the prongs of proving HWE, that the harassment in this case was unwelcome, may not be a slam dunk. As many have pointed out, Sterling's bigotry was no secret. Yet the NBA, coaches, players, and Clippers staff were all willing to look the other way until the tapes went viral and they were forced by public outrage to draw a line in the sand.

No doubt, Sterling is facing an uphill battle to retain ownership. But the NBA's case against Sterling isn't as cut and dry as many are making it out to be. He does have some legal options available to him should he decide to fight the NBA on termination of his ownership. My point is that this probably can't be resolved as quickly as Silver and the rest of the NBA had hoped outside of a settlement.