Could NBA really force out Donald Sterling over alleged racist remarks?
Calls multiply for the NBA to do just that, if it finds that Clippers owner Donald Sterling did in fact privately make offensive comments about blacks. Legal analysts see that as a long shot, however.
The NBA has many options for taking action in the case of Los Angeles Clippers owner Donald Sterling, if officials determine that his is indeed the voice caught on tape espousing racially offensive views and that the tape has not been rigged.
How the league will proceed is likely to become clearer Tuesday. Commissioner Adam Silver, who said Sunday the NBA would move quickly, is set to hold a news conference before the Clippers host the Golden State Warriors in Game 5 of their first-round Western Conference playoff series on Tuesday night, to make an announcement.
Among possible punitive actions are a suspension, a hefty fine, efforts to arrange for Mr. Sterling to sell a controlling interest in the Clippers to someone else, and, if the owners of the other teams are willing, forcible ouster. Sterling did not attend Sunday's Clippers game, and the National Basketball Players Association (NBPA) has asked the NBA to ban him from all remaining 2014 playoff games, among other things.
Any of those moves, of course, presumes that the NBA investigation into the matter finds that Sterling did in fact tell a young woman, allegedly his mistress, that she should stop bringing black people to Clippers games and that she shouldn’t post Instagram photos of herself in the company of blacks.
Legal analysts hasten to add – and to remind the public – that the NBA first must verify the veracity of the tape. It must establish that the voice on the tape is indeed Sterling’s, and that any breaks and pauses are not doctored, indicating possible splicing of different recordings.
That might not be easy because the recording is in possession of celebrity news website TMZ, and the NBA is a private business with no subpoena power, says Jody Armour, a law professor at the University of Southern California (USC) and the author of "Negrophobia and Reasonable Racism: The Hidden Costs of Being Black in America.” Under California law, he says, it is a crime to record someone without their consent and people who are surreptitiously recorded can sue.
“The woman who gave the recording to TMZ may have done so with the proviso that it is secret, so TMZ may be reluctant to simply turn over the original,” says Mr. Armour.
The extent of the NBA's options are not fully apparent because its by-laws are kept under wraps, say legal experts. The NBA holds its constitution closer to its vest than does Major League Baseball or the National Football League, “so no one really knows the precise specifics of what it lays out," says Michael Chasalow, a USC law and business professor.
Still, he says, the NBA has wide latitude, based on the fact that each team by contract voluntarily submits to the rules of the league. "I suspect they could force [Sterling] to sell, though I’m sure you would see litigation erupt," says Mr. Chasalow. "And it’s unclear to me how other owners would respond to a league which says, ‘We don’t like what you’re doing so we’re going to take your property away from you.’ ”
Undoubtedly, there will be pressure for Sterling to sell his interest in the Clippers, says Kevin Johnson, dean of the law school at the University of California at Davis, in an e-mail interview. “This would be a severe sanction," he adds. "The NBA may look at some other possibilities as well, including a suspension from management activities ... prohibiting him from attending games, a substantial fine, or possible charitable contributions to organizations like the NAACP or Urban League."
One question is whether a fine – even in the millions – would have much effect on Sterling, a billionaire. In 2006, the US Department of Justice sued Sterling, who made much of his fortune in real estate, for housing discrimination against blacks, Latinos, and Koreans. He paid $2.7 million to settle the claims and another $4.9 million in attorneys’ fees.
While the NBA ponders its options, the tape recording has gone viral on the Internet. Fans, celebrities, and current and former NBA stars have expressed near-universal outrage, and at least 25 petitions have popped up on Change.org that call on the NBA to hold Sterling accountable. Some, such as one by Timothy Dwight Smith, editor of ContraCritic News, calls upon the NBA to find a way to remove Sterling as an owner.
Sterling bought the team in 1981 for $12 million. The franchise value as of January was $575 million (13th among 30 NBA teams), calculated in part on the basis of team revenues of $128 million ($41 million of which came from gate receipts).
Some sports analysts say the incident – for all its distasteful and repugnant overlay – may have a silver lining if it results in a constructive national conversation about race, bias, and respect.
“This incident has a flip side of being a great teachable moment,” says Dan Lebowitz, executive director of the Institute for the Study of Sport in Society at Northeastern University, in Boston. “What is an incredibly negative situation tinged with hatred and racism has the benefit of sparking introspection for the young generation coming up and looking forward to dramatically changing demographics where Hispanics are surpassing whites in population in many regions.”
Many compare the Sterling flap to one in MLB involving former Cincinnati Reds owner Marge Schott. The league banned her from managing the team from 1996 to 1998 because of statements such as one that Adolf Hitler "was good at the beginning but he just went too far." Soon thereafter, she sold the majority of her share in the team.
“Everyone seemed to know for at least a decade that Marge Schott spouted racist remarks regularly, but they weren’t circulated instantly for everyone to hear,” says Jason Maloni, chair of litigation practice, sports, and entertainment for Levick, a public relations firm. “If that situation had happened today, she probably would have been gone sooner.”
Additional precedents exist in pro sports. Besides fining and restricting Ms. Schott, MLB officials fined Yankees owner George Steinbrenner for digging up dirt on player Dave Winfield, allegedly to harass him, notes lawyer Bryan Sullivan of Early Sullivan Wright Gizer & McRae LLP. Other leagues have suspended owners. And MLB took over the Los Angeles Dodgers two years ago, acting under the premise that the shaky financial condition of one of America's premiere teams was tarnishing the entire league.
“I don’t see the NBA taking over the Clippers,” Mr. Sullivan says.
One thing that may work in Sterling’s favor, at least legally, is that the recording was of a private conversation – not attitudes that he was spouting publicly, legal analysts say.
“This may not be the kind of behavior that the NBA feels comfortable going after,” says Armour. “They know people express their private demons in situations where they don’t expect to get out. That makes this more difficult."
Twelve of the 14 players on the Clippers are black or of mixed descent, as are the team's head coach and assistant coach.
Some suggest that the NBA needs to be much more transparent than usual as it confronts the Sterling matter. The players union, for one, has asked Commissioner Silver for a full accounting of "prior accusations of racism made against Sterling and why there were no NBA sanctions."
“The problem the NBA has here is much larger than Sterling’s racist comments," says Mark Tatge, professor of communication at DePauw University. "League officials have apparently known about his racist bent for some time and ignored this deplorable behavior. Why is this kind of behavior tolerated by the NBA league officials?"