So, you remember when it looked like Donald Sterling was going to slink off into the shadows and allow his wife to sell the Los Angeles Clippers?
Maybe we were a tad premature.
There’s a lot to parse here, and it certainly looks like Sterling is gearing up for a long, bloody battle. But amidst the kitchen-sink approach to contesting the validity of the NBA’s punishment, and a not-at-all-veiled threat to the other 29 owners, there’s one particularly ridiculous aspect to his defense; one that boils down to that tired old refrain that’s always been slung by bigots: “I’m not a racist. Just look at all my Black friends!”
If you’d like to peruse the long-form version, here it is:
As the longest-tenured owners in the NBA, the Sterlings have employed five African American coaches, scores of African American players, an African American general manager who held that job for 22 years and staff who helped the NBA receive a laudable “A+” in racial hiring practices. Indeed, Mr. Sterling recently terminated a Caucasian head coach and traded for an African American head coach who is now among the most highly paid and respected in the league.
I almost don’t know where to start. First of all, the African American general manager in question is Elgin Baylor. You know, the guy that sued Sterling for discrimination and told the world that Sterling used to bring lady friends into the locker room to ogle the players whilst they showered, while saying things like, “Look at those beautiful Black bodies,” as if they were a prized piece of livestock.
It’s odd that his lawyer forgot to include that important detail, isn’t it?
Sterling’s comments definitely made the league look really bad, but proving that it has had a direct impact in terms of dollars is another matter entirely.
And no, Sterling doesn’t get extra credit for having African Americans on the team in a league that is 76 percent black, or for canning a fairly wretched coach in Vinny Del Negro in favor of the great Doc Rivers, as if to suggest that a “real racist” would clearly have preferred going about 6-76 every year by employing an all-white squad with an equally pale gent clutching the clipboard.
More importantly, none of this has anything to do with the matter at hand. It’s pretty galling, frankly. Any inclusion of these so-called “facts” as some kind of proof is enough to make you want to dismiss the entirety of Sterling’s response as so much lawyerly bullshit.
But if you can get past this groan-inducing bit of misdirection (to put it kindly), there is a legal issue here that is worthy of consideration, specifically, that the provisions in Article 13(d) are being interpreted by NBA Commissioner Adam Silver in a manner in which they were never intended.
Article 13(d) states that owners or members may be terminated if they fail or refuse to fulfill: “Contractual obligations to the Association, its Members, Players, or any other third party in such a way as to affect the Association or its Members adversely.”
That’s where it gets tricky. It’s not just that the NBA would have to prove that Sterling’s comments definitely made the league look really bad and they’ve endured a ton of negative press; that was clearly the case. To satisfy a legal definition of “adverse effects,“ they’d also have to show that his action had a direct, quantifiable impact in terms of dollars and cents.
I emailed Jamie O’Grady, a lawyer and a sportswriter who has covered the NBA extensively and he explained that, “13(d), to even the most trained legal eye, sure does not read like it was intended to be a catch-all. Instead, it seems to have been drafted to address situations when an owner is unable or unwilling to meet his financial obligations.
“Additionally, the harm/damages (allegedly) sustained by the league seem difficult to show and even harder to prove. Correlation does not equal causation, as we know all too well, and reliance upon 13(d) seems like a bridge too far if you want to legitimately make the case for termination.”
It is true that sponsors had either ended their relationship with the Clippers or put them on temporary hold, but the exact nature of the financial damage is purely speculative at this point.
Had the NBA not levied the harshest punishment available, it’s possible that the players would have gone ahead with their threat to strike and fans might have stayed home or turned off the TV during the Clippers’ playoff run. But none of that actually came to fruition.
O’Grady adds: “It is very important to note how difficult a standard of ‘adverse material impact’ is to meet in a legal proceeding. Even if the league can definitely show at trial that sponsors are terminating relationships with the Clippers, it would also have to demonstrate—based, at least in part, on wholesale league audits conducted by Sterling's legal counsel—that the league itself has also suffered monetary harm.”
If Sterling does take this to court, it’s an argument he might actually be able to win.
The letter also spends a great deal of time—often in oddly florid language that dismisses Sterling’s vile screed(s) as the result of a “lovers’ tiff” or “lovers’ quarrel,” as if it was scene out of a particularly coarsened 19th century Victorian novel—asserting that the recorded conversation is inadmissible because it was recorded illegally.
As Sterling’s attorney Marvin Belcher told ESPN, “I believe what they're doing is a blatant invasion of his constitutional rights because they're using a tape recording that he did not consent to, and under California law that recording cannot be used for any purpose, for any proceeding. So if the basis of their case is illegal evidence, they don't have much of a case. ... The whole thing is a pile of garbage.”
The document also includes a signed affidavit by Sterling claiming he had no knowledge that his girlfriend, V. Stiviano, was recording him. It’s worth noting that Ms. Stiviano has stated in the past that this was not the case; that Sterling in fact asked her to tape their conversations.
California does have some of the strictest privacy laws in the country, but as O’Grady explained: “I just don't see how the California criminal code applies to private institutions that are largely operating outside of California. If this was a California-only company, firing someone because they received a recording from an employee's jealous wife, maybe the calculus changes.
“Keep in mind, this legislation was drafted to prevent/deter third parties from extorting one another. To suggest that the California Penal Code can preclude from admission in other jurisdictions’ proceedings such illegally recorded material seems like a stretch.”
These questions about the legitimacy and legality of Sterling’s, private conversation(s) aren’t there because Sterling and Belcher think it’s a winning argument. Rather, they’re letting all the other billionaires in the room know that if they give Sterling the boot, they’re setting a precedent that might come back to bite them in the ass.
It’s all right there in black and white (no pun intended): “If Mr. Sterling’s lovers’ tiff is a ‘position’ or ‘action,’ the NBA ownership should be put on notice that any of their private comments and conversations—including their most intimate—will now be considered a ‘position’ or ‘action’ under the Agreement and Undertaking, and if some of those comments happen to leak, it may become grounds for their termination as owners.”
That’s a warning shot fired straight across the bow. There’s a lot more here, and I highly recommend that you read the whole thing, preferably with a good lawyer attached to your hip. But if you can sift through all of the legal posturing, a fairly accurate portrait of Sterling himself does begin to emerge.
He’s a twisted, egotistical bully and a blowhard that feels compelled to list his bought-and-paid-for awards from the NAACP, as if they absolve him of decades of prejudicial business practices, including evicting a blind, partially paralyzed old woman and saying, “Is she one of those black people that stink? Just evict the bitch.”
He thinks that Silver has somehow done him a disservice by failing to include said trophies, his p.r.-driven charitable donations and all of his noble deeds in the complaint, as if it was somehow the league’s responsibility to burnish his reputation.
He thinks that his slandering of Magic Johnson and all African Americans during his meandering, downright bizarre interview with Anderson Cooper shouldn’t be used against him because “it remains an undeniable matter of social importance that merits discussion, and one side should not be silenced in that discussion because it remains unpopular.”
He thinks that V. Stiviano is the real villain in the sad, two-handed playlet that started this brouhaha, and that the words he uttered after this foul temptress tricked, beguiled, and manipulated him are just “part of being human.”
He thinks that he can dance around the fact that he (allegedly) tried to destroy the evidence on a technicality, claiming that at the time of his clumsy, sub-Nixonian attempt at a cover up, “Mr. Sterling was under no obligation whatsoever to produce documents to the NBA before the Commissioner required him to do so.”
And he’s willing to say anything, do anything, threaten anyone, and even drag Doc Rivers—who’s made it clear he might quit if Sterling somehow is still around come next November—back into this mess, as long as there’s a sliver of hope that he’ll get his way.