Yesterday NBA Commissioner Adam Silver announced that he was suspending Donald Sterling from the LA Clippers for life. He also encouraged the other 29 NBA owners to vote in favor of forcing Sterling to sell his team. In order for that to happen, Silver needs 3/4ths of the owners to vote Sterling out.
By now the recording of Sterling's disturbing racist comments are well known throughout the world. The 24-hour news cycle exposed Sterling's embarrassing plantation mentality toward minorities. Numerous sponsors pulled their sponsorship of Sterling's Clippers, and in last night's playoff game (a Clippers win, by the way) most of the corporate billboards in Staples Center were covered up. Fans and players threatened to boycott not just Clippers games, but NBA playoff games across the country.
Many people have raised free speech or right to privacy arguments to sympathize with Sterling. They have said the NBA has no right to ban Sterling from his games and force the sale of his team as punishment for statements he made in private. These arguments are extremely misguided.
The right to free speech protects an individual against the government, not an individual against a private business like the NBA. Therefore Sterling is in no danger of being imprisoned for his comments, but he is not immune to business repercussions. It's no different to employee who gets fired for posting harsh criticism of their boss online, or pictures of themselves on a vacation when they've called in sick to work. Yes the employee has a right to post anything, but the employer has a right to fire them for unprofessional behavior.
The recording may or may not have happened without Sterling's consent, and if Sterling had not consented to the recording, he may have had his rights to privacy violated under California law (California requires all parties to consent to any recording, as opposed to the majority of states that only require one party's consent).
In this circumstance, Sterling's case is against his mistress, V. Stiviano. Sterling could argue that the intense media coverage and consequential NBA punishment were caused by the possibly illegal recording, and therefore Sterling might be able to argue that this violation of his privacy rights made him suffer severe economic damages. But his only case is against the person who illegally recorded him--the mistress Stiviano--not against TMZ, Deadspin, or the NBA. Sterling had been financially supporting this woman since 2010, so it would seem impossible for him to recover the full extent of his economic damages from Stiviano, but that's his only option under a privacy lawsuit.
Even if Sterling wants to pursue this sort of lawsuit, he'll have to get in line. Sterling's estranged wife is already suing Stiviano for all she's worth. Mrs. Sterling filed a lawsuit in March claiming that since Stiviano met Sterling at the 2010 Super Bowl, Sterling has paid for a $1.8 million duplex, 2 Bentleys, 1 Ferrari, 1 Range Rover, and nearly $240,000 in "living expenses" to Stiviano in 4 years--all constituting community property given to Stiviano without Mrs. Sterling's knowledge. Mrs. Sterling's lawsuit could bankrupt Stiviano, meaning Donald would have nothing left to recover if he pursued a privacy lawsuit now.
If Sterling has a case against the NBA, it would have to be that the NBA failed to follow its own rules in handing down the fine, lifetime ban, and especially in encouraging the forced sale of the Clippers. Michael McCann from McCann Sports Law sets out Sterling's potential case in this brilliant article. There is a valid argument here. The provisions Silver is citing to force the sale of the Clippers seem to be intended to protect the NBA from a financial leach. There is no morals clause in the NBA Constitution. This section refers to the league's right to step in and save a franchise unable to pay its bills, and the Clippers are a financially healthy business at the moment.
However, evidence was building to the contrary. Corporate sponsorships were being dropped, and the Clippers' opponent in the playoffs, the Golden State Warriors, reportedly planned to walk off the court before tip-off if Sterling wasn't severely punished before the game. NBA Players' Association Vice President Roger Mason Jr. claimed other playoff teams in other cities planned to follow suit. The NBA was facing the prospect of losing its most valuable resource--the players--if something wasn't done.
That's the key here. Sterling's comments were so reprehensible that the players were willing to walk away from the playoffs to ensure something was done. A move like that would have cost the league billions of dollars. Timing was everything.
If this recording had been leaked in the offseason, or even at the beginning of the regular season (when the NBA comes in 3rd, behind pro and college football, in ratings) I do not believe Sterling's punishment would have been so harsh. I believe this for two reasons: 1) the players would not have had nearly as much leverage to get what they wanted; and 2) the threat of economic loss would not have been great enough to justify such a harsh punishment.
There are two things to consider about Commissioner Silver in this situation.
First, he is hired by the 30 NBA owners to protect their financial interests. A work stoppage during the playoffs risks a huge sum of money. The NBA playoffs take place after the NCAA tournament for a reason. Its when the competition is lowest, and consequently when the NBA's product is most profitable. While some owners such as Dallas's Mark Cuban may have been worried about the "slippery slope" of ousting an owner as punishment for private statements, the owners were more worried about the potential enormous loss of revenue for the league if it no longer had a product to put on the air. Viewers might switch to the NHL and never come back.
Yes Silver made a strong symbolic statement that racism will not be tolerated in the NBA. Yes his actions were largely applauded by the media for standing against racism. I don't dispute that Silver should be applauded for these reasons, but in the end, I'm not so sure this punishment was motivated by a sense of justice. Silver took decisive action to protect the financial interests of 29 of the 30 NBA owners. The symbolic victory was nothing other than a positive biproduct of an action intended to keep the NBA as profitable as possible.
Second, Silver is a brilliant lawyer. He earned a law degree from University of Chicago, one of the best schools in the country, in 1988. He clerked for the Southern District of New York and worked for a New York City law firm after graduating from Chicago. He has worked for the NBA since 1992, and has fought for the owners through 2 different work stoppages. Silver is a great negotiator, and he won the faith of the owners after the 2011 lockout in particular (its clear the owners got a great deal from the lockout, as the value of NBA franchises has doubled since the new CBA was signed).
Protecting the financial interests of the owners involves protecting against potentially costly lawsuits. Much has been made of Sterling's propensity for lawsuits and how much time he spends in the courtroom, but the NBA hires a lawyer to act as commissioner in order to foresee potential legal issues before they arise and adequately guard the league against them. I have no doubt Silver is confident he can make the case that the NBA followed its own rules when punishing Sterling.
Silver will be able to point to the lost sponsors as the first domino in what could have been a disastrous loss of revenue. He can likely depend on testimony from the NBA Players' Association that they intended to boycott the playoffs unless drastic measures were taken to punish Sterling. He undoubtedly logged every conversation and meeting that took place in the 72 hours between when the recording went public and the punishment was handed down. He will be able to point to all of this as evidence supporting his actions.
Had the recording gone public at a different time, when the potential economic loss wasn't as drastic, I don't think Silver would have a strong enough justification for this action. Therefore I'm happy the story broke when it did. Timing provided Silver a sound legal justification for the strongest punishment possible. And there is simply no room, in any profession, for an employer with such a bigoted mentality toward employees.
Stories like this can do a lot to improve and progress American culture; culture Sterling clings to as an excuse for his unacceptable attitude.
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