Donald Sterling and Racism

[derspiess]

So are we going to get an all-black league or have those plans been shelved?

Hey, take it up with Larry Johnson, not me.

  Shouldn't you be the one taking it up with Larry Johnson?  You two are the only people who seem to want one.

Did I say I wanted one, grumblies?

[alfred russel]

It will depend on a vote by the owners now, if 3/4 are ok, he'll be kicked out and forced to sell.

Supposedly the league constitution has that clause, but the use of it is limited to whether the team is in financial trouble or if there is game fixing / gambling.

On the radio they were saying he might be able to sue to block this and still keep the team. I'm not sure why he would want to though. He is going to be persona non grata, and no one will want to play or coach for him.

[Barrister]

It will depend on a vote by the owners now, if 3/4 are ok, he'll be kicked out and forced to sell.

Supposedly the league constitution has that clause, but the use of it is limited to whether the team is in financial trouble or if there is game fixing / gambling.

On the radio they were saying he might be able to sue to block this and still keep the team. I'm not sure why he would want to though. He is going to be persona non grata, and no one will want to play or coach for him.

I was a little bit surprised Silver was going to try and force Sterling to sell.  It gives Sterling no reason not to sue.

And it's the Clippers.  Recent success notwithstanding, they've been terrible for decades.  Yet they've always managed to hire someone, and the draft ensures he'll always have the rights to some players.

[The Larch]

It will depend on a vote by the owners now, if 3/4 are ok, he'll be kicked out and forced to sell.

Supposedly the league constitution has that clause, but the use of it is limited to whether the team is in financial trouble or if there is game fixing / gambling.

On the radio they were saying he might be able to sue to block this and still keep the team. I'm not sure why he would want to though. He is going to be persona non grata, and no one will want to play or coach for him.

I was a little bit surprised Silver was going to try and force Sterling to sell.  It gives Sterling no reason not to sue.

And it's the Clippers.  Recent success notwithstanding, they've been terrible for decades.  Yet they've always managed to hire someone, and the draft ensures he'll always have the rights to some players.

Another possible sanction is forfeiting their draft rights. And sponsors started leaving en masse when the whole controversy exploded. It'd be totally counter intuitive to hold on, but he has been mismanaging the Clippers to the ground for decades already.

[alfred russel]

I was a little bit surprised Silver was going to try and force Sterling to sell.  It gives Sterling no reason not to sue.

And it's the Clippers.  Recent success notwithstanding, they've been terrible for decades.  Yet they've always managed to hire someone, and the draft ensures he'll always have the rights to some players.

It is different now though. Players were supposedly talking about a boycott. Not just Clippers players, but all players. No one is going to want to play for him. Sponsors have been pulling out, and the community is not supportive.

The players association isn't going to be okay with what you just mentioned: players that have no interest ever associating with Sterling forced to work for him through the draft or trades.

[crazy canuck]

I was a little bit surprised Silver was going to try and force Sterling to sell.  It gives Sterling no reason not to sue.

Why would Sterling want to keep a team that had no fans in the stands, sponsors or players - because that is exactly what would happen if he tried to keep the team.

If he sells now he will get a tidy ROE.  He has plenty of movitivation to sell and not sue. 

[Barrister]

I was a little bit surprised Silver was going to try and force Sterling to sell.  It gives Sterling no reason not to sue.

Why would Sterling want to keep a team that had no fans in the stands, sponsors or players - because that is exactly what would happen if he tried to keep the team.

If he sells now he will get a tidy ROE.  He has plenty of movitivation to sell and not sue.

Dude already has plenty of money.  Money isn't the motivation.

But by being an NBA owner he is a member of a very, very exclusive club.  That brings him all kinds of influence that money alone can not compare to.

Besides he's sued the league before - and won.

I'm sure that Sterling figures he can "fix" things by giving more money to the NAACP and making a public apology.  Fan boycotts tend to be pretty fickle things, as are sponsors.

[crazy canuck]

Whatever influence he might have thought he had by being a member of the club has entirely vanished.

[sbr]

This is from Lester Munson, ESPN Legal Expert.  It was on Monday, before the announcement.

http://espn.go.com/espn/otl/story/_/id/10852199/challenge-donald-sterling

The alleged racist and misogynist rants of Los Angeles Clippers owner Donald Sterling will test the leadership of new NBA commissioner Adam Silver. Sterling's apparent misconduct raises legal questions about Silver's authority and possible punishments to be assessed against Sterling:

Q: Can Silver force Sterling to say whether the voice on the tapes is his?

A: Yes. Under the terms of Paragraph 24(m)(ii) of the "constitution" that governs the 30 owners of NBA teams and establishes the authority of the owners' commissioner, Silver can require Sterling to respond under oath to questions. The commissioner has "the right to require testimony and the production of documents and other evidence from any Member." As an owner, Sterling is a "member" of the NBA. Sterling and his lawyers could delay answering questions from Silver, but if Sterling refuses to admit or to deny that it is his voice on the tapes, he is in violation of the constitution and would face termination. He has no protection from the U.S. Constitution's Fifth Amendment guarantee against self-incrimination, because he is not facing any charge of any crime.

Q: What penalties can Silver issue?

A: Under the provisions of the bylaws, Silver has two sets of powers that he may use. Under either, he can issue a lifetime suspension and a substantial fine. Under Paragraph 24(l) of the constitution that was adopted by the NBA owners on Oct. 26, 2005, he can issue a fine of up to $2.5 million, can suspend an owner indefinitely and can order the forfeiture of draft picks. This provision applies to situations that are not covered by specific rules within the constitution. In another provision, Paragraph 35(A)(c), Silver can issue an indefinite suspension and a fine of $1 million to any owner who "makes ... a statement having or designed to have an effect prejudicial or detrimental to the best interests of basketball." If Silver wants to hammer Sterling, he can assert that Sterling's statements are so egregious that they go beyond the misconduct contemplated in Paragraph 35 and allow Silver to assess the greater penalties found in Paragraph 24. Sterling can argue that he merely made a statement, but the statement at a minimum allows a lifetime suspension and a $1 million fine.

Q: Is it possible for Silver and the NBA to terminate Sterling's franchise ownership?

A: Yes. Under the terms of Paragraph 13 of the constitution, the owners can terminate another owner's franchise with a vote of three-fourths of the NBA Board of Governors, which is composed of all 30 owners. The power to terminate is limited to things like gambling and fraud in the application for ownership, but it also includes a provision for termination when an owner "fails to fulfill" a "contractual obligation" in "such a way as to affect the [NBA] or its members adversely." Silver and the owners could assert that Sterling's statements violated the constitution's requirements to conduct business on a "reasonable" and "ethical" level.

Any owner or Silver can initiate the termination procedure with a written charge describing the violation. Sterling would have five days to respond to the charge with a written answer. The commissioner would then schedule a special meeting of the NBA Board of Governors within 10 days. Both sides would have a chance to present their evidence, and then the board would vote. If three-fourths of the board members vote to terminate, then Sterling would face termination of his ownership. It would require a vote of two-thirds of the board to reduce the termination to a fine. Terminating a franchise would obviously be a drastic remedy, but the potential of the termination procedure gives Silver and the other owners vast leverage in any discussion with Sterling about an involuntary sale of his team.

Q: Sterling is notoriously litigious. Can he go to court to stop Silver from punishing him?

A: Not effectively. When Silver issues his punishment to Sterling, the decision is final. The constitution provides in Paragraph 24(m) that a commissioner's decision shall be "final, binding, and conclusive" and shall be as final as an award of arbitration. It is almost impossible to find a judge in the United States judicial system who would set aside an award of arbitration. Sterling can file a lawsuit, but he would face a humiliating defeat early in the process. There is no antitrust theory or principle that would help him against Silver and the NBA. He could claim an antitrust violation, for example, if he were trying to move his team to a different market. But under the terms of the NBA constitution, he has no chance to succeed in litigation over punishment.

[Barrister]

My point though is "what does he have to lose"?

Even if he was "only" given a lifetime ban form the game, if he continued to own the team he could ask to have that lifted in a few years.  Make the right donations and the right apologies and who knows what might happen.

I wonder what the other owners might think as well.  If they go along with this they have just greatly increased the power of their brand new commissioner.

[crazy canuck]

My point though is "what does he have to lose"?

You must not have read my whole post.  He has hundreds of millions of dollars to lose.  And for what?  To be vilified even more than he is now?

[sbr]

From everything I have heardI would be surprised if the vote isn't 29-0, whenever it happens.

[Malthus]

I was a little bit surprised Silver was going to try and force Sterling to sell.  It gives Sterling no reason not to sue.

Why would Sterling want to keep a team that had no fans in the stands, sponsors or players - because that is exactly what would happen if he tried to keep the team.

If he sells now he will get a tidy ROE.  He has plenty of movitivation to sell and not sue.

Sell, *then* sue.  Allege that the team was worth more, but for the (alleged) illegal forced sale. No dount the other side will argue that it wasn't, and that in fact selling was the best financial option ...

[Malthus]

This is from Lester Munson, ESPN Legal Expert.  It was on Monday, before the announcement.

http://espn.go.com/espn/otl/story/_/id/10852199/challenge-donald-sterling

The alleged racist and misogynist rants of Los Angeles Clippers owner Donald Sterling will test the leadership of new NBA commissioner Adam Silver. Sterling's apparent misconduct raises legal questions about Silver's authority and possible punishments to be assessed against Sterling:

Q: Can Silver force Sterling to say whether the voice on the tapes is his?

A: Yes. Under the terms of Paragraph 24(m)(ii) of the "constitution" that governs the 30 owners of NBA teams and establishes the authority of the owners' commissioner, Silver can require Sterling to respond under oath to questions. The commissioner has "the right to require testimony and the production of documents and other evidence from any Member." As an owner, Sterling is a "member" of the NBA. Sterling and his lawyers could delay answering questions from Silver, but if Sterling refuses to admit or to deny that it is his voice on the tapes, he is in violation of the constitution and would face termination. He has no protection from the U.S. Constitution's Fifth Amendment guarantee against self-incrimination, because he is not facing any charge of any crime.

Q: What penalties can Silver issue?

A: Under the provisions of the bylaws, Silver has two sets of powers that he may use. Under either, he can issue a lifetime suspension and a substantial fine. Under Paragraph 24(l) of the constitution that was adopted by the NBA owners on Oct. 26, 2005, he can issue a fine of up to $2.5 million, can suspend an owner indefinitely and can order the forfeiture of draft picks. This provision applies to situations that are not covered by specific rules within the constitution. In another provision, Paragraph 35(A)(c), Silver can issue an indefinite suspension and a fine of $1 million to any owner who "makes ... a statement having or designed to have an effect prejudicial or detrimental to the best interests of basketball." If Silver wants to hammer Sterling, he can assert that Sterling's statements are so egregious that they go beyond the misconduct contemplated in Paragraph 35 and allow Silver to assess the greater penalties found in Paragraph 24. Sterling can argue that he merely made a statement, but the statement at a minimum allows a lifetime suspension and a $1 million fine.

Q: Is it possible for Silver and the NBA to terminate Sterling's franchise ownership?

A: Yes. Under the terms of Paragraph 13 of the constitution, the owners can terminate another owner's franchise with a vote of three-fourths of the NBA Board of Governors, which is composed of all 30 owners. The power to terminate is limited to things like gambling and fraud in the application for ownership, but it also includes a provision for termination when an owner "fails to fulfill" a "contractual obligation" in "such a way as to affect the [NBA] or its members adversely." Silver and the owners could assert that Sterling's statements violated the constitution's requirements to conduct business on a "reasonable" and "ethical" level.

Any owner or Silver can initiate the termination procedure with a written charge describing the violation. Sterling would have five days to respond to the charge with a written answer. The commissioner would then schedule a special meeting of the NBA Board of Governors within 10 days. Both sides would have a chance to present their evidence, and then the board would vote. If three-fourths of the board members vote to terminate, then Sterling would face termination of his ownership. It would require a vote of two-thirds of the board to reduce the termination to a fine. Terminating a franchise would obviously be a drastic remedy, but the potential of the termination procedure gives Silver and the other owners vast leverage in any discussion with Sterling about an involuntary sale of his team.

Q: Sterling is notoriously litigious. Can he go to court to stop Silver from punishing him?

A: Not effectively. When Silver issues his punishment to Sterling, the decision is final. The constitution provides in Paragraph 24(m) that a commissioner's decision shall be "final, binding, and conclusive" and shall be as final as an award of arbitration. It is almost impossible to find a judge in the United States judicial system who would set aside an award of arbitration. Sterling can file a lawsuit, but he would face a humiliating defeat early in the process. There is no antitrust theory or principle that would help him against Silver and the NBA. He could claim an antitrust violation, for example, if he were trying to move his team to a different market. But under the terms of the NBA constitution, he has no chance to succeed in litigation over punishment.

This part seems a huge stretch:

A: Yes. Under the terms of Paragraph 13 of the constitution, the owners can terminate another owner's franchise with a vote of three-fourths of the NBA Board of Governors, which is composed of all 30 owners. The power to terminate is limited to things like gambling and fraud in the application for ownership, but it also includes a provision for termination when an owner "fails to fulfill" a "contractual obligation" in "such a way as to affect the [NBA] or its members adversely." Silver and the owners could assert that Sterling's statements violated the constitution's requirements to conduct business on a "reasonable" and "ethical" level.

How is being a giant racist asshole in a private (though taped) conversation with his gold-digging mistress "conducting business" in an "unethical" manner? Naturally I haven't seen the agreement, but the obvious interpretation of a contract like that is that it refers to the actual conduct of business. It's a big streatch to argue that, because his mistress is a gold-digger, his relationship with her is the conduct of "business", though no doubt such an argument would raise smiles in the court ... 

[crazy canuck]

I was a little bit surprised Silver was going to try and force Sterling to sell.  It gives Sterling no reason not to sue.

Why would Sterling want to keep a team that had no fans in the stands, sponsors or players - because that is exactly what would happen if he tried to keep the team.

If he sells now he will get a tidy ROE.  He has plenty of movitivation to sell and not sue.

Sell, *then* sue.  Allege that the team was worth more, but for the (alleged) illegal forced sale. No dount the other side will argue that it wasn't, and that in fact selling was the best financial option ...

Yes, that is something that might happen.  I just dont see the argument BB is making that he loses nothing by attempting to hang onto the team.