Los Angeles Clippers owner Donald Sterling's response to the NBA sets him up for a legal fight over whether his racist comments give the league the right to seize his team. Here are five issues on which the case could turn, whether in the scheduled meeting of the NBA owners on Tuesday or in a courtroom, where the litigious Sterling has vowed to "fight to the bloody end":
The Living Room Defence
Can something Sterling said in the privacy of his girlfriend's living room, without knowing he is being recorded and with no expectation that the comments will become public, be considered a "wilful" violation of the league's bylaws. A big part of Sterling's defence is based on the idea that "a jealous rant to a lover never intended to be published cannot offend the NBA rules."
But other sections of the NBA constitution do not require wilfulness, and he is charged with breaking those rules as well. What's more, the league constitution is silent on who bears the burden of proof in Tuesday's hearing, or on what standard Sterling will be judged. Unlike a criminal trial, where guilt must be proven "beyond a reasonable doubt," the other owners are empowered to seize the Clippers for any reason at all, as long as it isn't otherwise illegal. (For example, they can ban him from the league for being a bad owner, but not based on his race.)
In the state of California, it is illegal to record someone without his knowledge. If, as Sterling claims, he did not know he was being taped, the recording made by girlfriend V. Stiviano would be inadmissible in court or "any other proceeding." And any evidence obtained because the recording was made public — basically, the whole case against Sterling — would be considered what Supreme Court Justice Felix Frankfurter called "fruit of the poisonous tree."
But in New York, where the league operates, the law requires only one party to a conversation to consent to a recording. Sterling signed off on the NBA constitution and to the process the league is using to strip him of his team — including the one that said "strict rules of evidence shall not apply." Private associations aren't required to satisfy formal legal standards of evidence and due process, but they must follow their own rules. As Oliver Wendell Holmes once wrote, "A policeman may have the constitutional right to talk politics, but he has no constitutional right to be a policeman."
Sterling's brief makes the case that his lifetime ban and $2.5 million fine is not consistent with past punishments handed out by the commissioner's office. He lists several speech-related player penalties — though players are governed by the collective bargaining agreement — as well as owner punishments for drunken driving, for salary cap violations, for referee abuse and for public comments during the 2011 lockout. Those ranged from a one-year suspension to a reported $500,000.
The NBA argues in its charge that Sterling's racist comments, which gave rise to threats of player and sponsor boycotts, were more damaging to the league than previous instances of bad behaviour. Also worth noting: none of those punishments were handed out by Commissioner Adam Silver, who was on the job less than three months when the Sterling matter came to his desk.
Rush To Judgment
Sterling argued that the process did not allow him time to mount an adequate defence; for one thing, he has been banished from his office at Staples Center and thus is unable to verify whether the damages the league claims are real. But the league wants him out by the start of the NBA finals, and it has refused his request for an extension.
Sterling also argued that Tuesday's hearing "will be a spectacle meant to mollify the popular opinion, not a fair and impartial hearing: the outcome of these proceedings became a foregone conclusion weeks ago." In fact, from his first announcement of the lifetime ban, Silver has said he has the votes to oust Sterling. At least 10 other owners have publicly expressed their support for stripping him of his team, and an AP survey on the day the ban was announced found that more than half of the teams supported it and no owner was against it.
Sterling's wife, Shelly, says he has given her permission to sell the team, and she is reviewing bids. But even if she accepts an offer, the league has always held the right to approve potential owners — a lengthy process that will almost certainly not be completed by the time of the owners' vote. (The only imaginable exception would be if an existing owner decided he wanted the Clippers instead of his current team, but even that would seem to take more than a few hours to approve.)
So it is possible that Shelly Sterling goes to court for the right to sell to her chosen bidder, the league fights for control of the sale process and Donald Sterling sues to keep the team. In any case, the NBA is unlikely to resolve this matter before the finals, if not the 2014-15 season opener.