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View Full Version : David Silver, aka The Boy Who Kicked the Hornet's Nest



Sssmush
04-30-2014, 10:07 PM
Watching the Clipper's game last night I had such a good feeling, as if some negative energy infiltrating the League for all these years had suddenly been lifted and a new era of possibility and NBA joy had been freed in the city of Los Angeles. Then... LoL... I remembered that this is Donald Sterling the league is messing with, and that the thought-crime evidence they have, based on a baited private conversation secretly taped by an (allegedly) known escort/consort/whatever who is herself embroiled in a legal fiasco with Sterling's wife, is as thin as a piece of spaghetti stretched from Century City to Manhattan.

Look... I mean you just KNOW that Donald Sterling absolutely LOVES this situation. This is the kind of thing he just revels in. In fact this situation has probably energized him for an extra twenty years. This is the kind of battle that he absolutely lives for--he gets to be the center of attention, for the foreseeable future, of the entire NBA, the racist Darth Vader being scapegoated for the sins of our entire culture, his every word overshadowing every conceivable piece of sports news on ESPN for the rest of the playoffs, the offseason, next season, and beyond. And in his heart he probably doesn't feel that he's really done anything wrong, that he's just a guy who shoots from the hip and says what's on his mind and doesn't feel the need to be all PC about everything, and that legally he can't be prosecuted or forced to relinquish his property based on these kind of oddly nebulous allegations.

Basically what this boils down to is a huge PR issue... Everyone can see that Sterling has deeply held racist beliefs, even though he has managed to live within civil society and be very successful. What's more troubling for the league is that he's always exuded a sense that he's held the entire culture of the NBA in utter disdain: he seems to have always, either implicitly or explicitly, looked down upon the athletes, the competition, the league and the spirit of the game as a kind of joke. He's always had this air about him that the only reason he owns an NBA team is to pee in the pool and put his foot on the back of something that he really didn't think was good or expressive or valuable or had any real right to exist or be as elevated as it was.

All that V.'s recording has done, really, is to turn the volume up on this nebulous cloud of hatred and contempt that he has for the game and its players, its culture and its spirit of freedom, and the point is that while a window has been opened to the situation and we can now see clearer than ever what's going on, there is probably no real legal recourse to force Sterling to sell the team. Sure Magic would love to buy the team, blah blah blah, and David Silver is ballsy stepping up to the plate... but jesus Sterling can go all the way to the mat with this issue, and for a long time. He can challenge the charter of the league, he can allege conspiracy, he can invoke freedom of speech laws, he can attack wiretapping and surveillance laws. I mean, holy moley what if a private investigator finds that some other ownership group was having conversations with this V. chick and what if she rolls and says it was a paid set up? And this isn't even getting to the main point that Silver and his team are going to have to forge new legal territory and win several huge and lengthy legal battles in order to force this guy to actually sell the team, at which point Sterling would, theoretically, still be able to cause a ton of havoc based on who he wanted to sell to and for how much and how the deal would be structured.

I really feel that the more powerful move for Silver would've been to force Sterling to give a press conference and really face up to these issues. It's not inconceivable that this could've still had a happy ending... that Sterling might have eventually found love in his heart and seen the error of his ways, and a public airing and discussion of all this, a Barbara Walters/Oprah moment, an open confession and a public act of contrition, might have healed some of these wounds. On the other hand, an open refusal and act of defiance to do so might've defined Sterling in even clearer terms.

Now, though, we've just turned this guy into the boogie man and I'm sure he is probably riding higher right now than he has in years, Mr. Bad Guy Billionaire in a black leather jacket and limo with an aura of danger and global fame around him. And as I mentioned this battle is just getting started. If ESPN and the league are smart they will just freeze him out of all coverage as if he didn't exist for the rest of the year or until the league meetings... because seriously this guy might seriously drag the entire NBA through a hole circus of ugliness for the foreseeable future if they don't find a way out of this.

still1ballin
04-30-2014, 10:12 PM
:dance:

Sssmush
04-30-2014, 10:15 PM
Yeah, I would think that rather than swinging for the fences there might've been some kind of league morality policy or something with which they might have compelled him to speak before the owners or issue some kind of public apology. THAT would've been more powerful, in my estimation.

As it stands, Sterling is not going to apologize, at all. On the contrary, he is simply girding himself for battle and in the meantime telling the league and everyone in the league and every fan of the league to just go **** themselves.

*Let the show begin...*

Sssmush
04-30-2014, 10:18 PM
:dance:


:smoking:

Method28
04-30-2014, 10:21 PM
You're forgetting that he consented to be recorded. People face charges and criticism due to social media sites all the time.

Was it recorded in the privacy of his own home or wherever, yes. But the fact that it leaked out makes it public knowledge now. With the terms he agreed to with the nba now breached I feel Silver is within his rights to easily push this issue and he will have no problem in arbitration.

Method28
04-30-2014, 10:22 PM
:dance:

Tldr

goingfor28
04-30-2014, 10:24 PM
**** dts

cmellofan15
04-30-2014, 10:28 PM
Silver is acting completely within his authority and the owners will be acting within their authority when/if they vote him gone. There's not much, if anything, he can do to fight this because he agreed to these terms when he became an owner.

kingsdelez24
04-30-2014, 11:01 PM
Who's David Silver?

Can't Stop Me
04-30-2014, 11:06 PM
Who's David Silver?

Adam Silver and David Stern fusion-ed together, duh.

kingsdelez24
05-01-2014, 12:44 AM
Who's David Silver?

Adam Silver and David Stern fusion-ed together, duh.

Somebody make a gif with their heads photoshopped over Goku and Vegeta doing the fusion dance

FOBolous
05-01-2014, 01:50 AM
hate to break it to you but nowadays, what you do on your personal time affect your professional career. for example, many companies have policies about what their employees can or cannot do on social medias. and trust me, if what you did on your personal time cost your company to lose as much sponsor, revenue, and hinders their ability to do business as Sterling...you will be fired just like Sterling.

Timmmahhh
05-01-2014, 01:54 AM
Who's David Silver?

The dude banging Donna on 90210.

Sssmush
05-01-2014, 05:57 AM
hate to break it to you but nowadays, what you do on your personal time affect your professional career. for example, many companies have policies about what their employees can or cannot do on social medias. and trust me, if what you did on your personal time cost your company to lose as much sponsor, revenue, and hinders their ability to do business as Sterling...you will be fired just like Sterling.

Don't get me wrong... I do agree that Sterling allowing his ugly personal views to go public, even unintentionally, does give the league definite cause to try to rid itself of him. But here's a bit of ancient history for you:



In 1980, Davis attempted to move the Raiders to the L.A. Coliseum without proper league consent. The NFL filed an injunction to block the move, and Davis retaliated with an antitrust suit. Davis eventually won the lawsuit and was awarded $35 million in damages from the league. Adding prideful insult to financial injury, the Raiders won the Super Bowl the following year, forcing Rozelle to present Davis the Vince Lombardi Trophy.


http://sportsillustrated.cnn.com/multimedia/photo_gallery/0905/sports.feuds/content.26.html

This could turn out to be a VERY difficult lawsuit for the league, forcing it to invent a way to take away corporate ownership (Sterling can't be fired, he literally owns 3% of the NBA) based on what someone thinks or believes (in private, no less).

Regardless of any of the particulars, Silver should've gone for a personal, public apology from Sterling (or forced him to thumb his nose and publicly refuse such a gesture), no matter how weird or embarassing that episode might've been. As it stands, Sterling might very well be able to fight the league, over a period of years, to a virtual standoff, and he will never have even apologized in any way or made any reconciliation or public gesture to say that he does in fact respect the players on his team as fellow human beings.

Sssmush
05-01-2014, 06:00 AM
And let's not forget that the Clippers are still in the running to win the NBA title this year... which could amplify this bit of divine comedy to utterly unprecedented levels.

We might be seeing a kind of internet media singularity such that people will look back on 2014 as the year the Internet news and its TV component went to another level.

ChiMaverick
05-01-2014, 07:13 AM
Don't get me wrong... I do agree that Sterling allowing his ugly personal views to go public, even unintentionally, does give the league definite cause to try to rid itself of him. But here's a bit of ancient history for you:



http://sportsillustrated.cnn.com/multimedia/photo_gallery/0905/sports.feuds/content.26.html

This could turn out to be a VERY difficult lawsuit for the league, forcing it to invent a way to take away corporate ownership (Sterling can't be fired, he literally owns 3% of the NBA) based on what someone thinks or believes (in private, no less).

Regardless of any of the particulars, Silver should've gone for a personal, public apology from Sterling (or forced him to thumb his nose and publicly refuse such a gesture), no matter how weird or embarassing that episode might've been. As it stands, Sterling might very well be able to fight the league, over a period of years, to a virtual standoff, and he will never have even apologized in any way or made any reconciliation or public gesture to say that he does in fact respect the players on his team as fellow human beings.

According to Lester Munson it's not going to be so hard. Read the last question in this story if not the whole article.

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

Here's audio from Lester Munson on Mike & Mike in the Morning (starts around the 13 min mark)

http://insider.espn.go.com/espnradio/play?id=10856571

torocan
05-01-2014, 08:15 AM
Don't get me wrong... I do agree that Sterling allowing his ugly personal views to go public, even unintentionally, does give the league definite cause to try to rid itself of him. But here's a bit of ancient history for you:

http://sportsillustrated.cnn.com/multimedia/photo_gallery/0905/sports.feuds/content.26.html

This could turn out to be a VERY difficult lawsuit for the league, forcing it to invent a way to take away corporate ownership (Sterling can't be fired, he literally owns 3% of the NBA) based on what someone thinks or believes (in private, no less).

Regardless of any of the particulars, Silver should've gone for a personal, public apology from Sterling (or forced him to thumb his nose and publicly refuse such a gesture), no matter how weird or embarassing that episode might've been. As it stands, Sterling might very well be able to fight the league, over a period of years, to a virtual standoff, and he will never have even apologized in any way or made any reconciliation or public gesture to say that he does in fact respect the players on his team as fellow human beings.

The situation for Sterling is NOT the same as it was for the Raiders.

Anti-trust law (the Sherman Act) allows an exception to anti-trust regulation for trade organizations when there is industry-wide liability involved.

Basically, trade organizations like the NBA are allowed to protect their financial interests. As soon as Sterling's comments started to cause financial damage and the potential for future liability, Stern lost legal protection from the Sherman Act (anti-trust law).


There is, Baruch College law professor Marc Edelman said, "a narrow exception from the antitrust law . . . that leaves open the possibility that a trade association might be able to ban one of its members if the member's conduct would expose the entire industry to forward-looking liability."

Such as litigation by the NBA Players Association.

"Another possibility," said Edelman, an expert on legal matters in sports, "is that these statements by Sterling open up the team, and perhaps the entire league, to claims of a hostile environment and other forms of race-based discrimination."

http://www.newsday.com/sports/basketball/suing-not-necessarily-such-a-simple-option-for-donald-sterling-1.7866649

In other words, as soon as his "private" comments became public and began to have a material impact upon the financial integrity of the NBA, Sterling lost legal protection under the Sherman Act. That it was a private conversation is irrelevant. It was HIS comments that are causing the PR storm, and HIS comments that are causing financial damage and opening the Clippers and potentially the entire NBA to legal liability and loss of future earnings.

And Sterling will get NO protection from the courts for several reasons.

1) The recordings are apparently legal. TMZ has reported that she has consent for the recordings. And while Sterling may want the conversation to be for private consumption, Sterling does NOT get to control whether a conversation remains private. Privacy is a mutual decision. For example, I may tell you something "in private", however it is up to YOU whether that remains private unless I seek a legally binding contract acknowledging your agreement to keep it private (non-disclosure agreement) or you are part of a profession with a reasonable expectation of privacy (client-lawyer, doctor-patient, etc).

2) Even if the recordings were done in private and disclosed to the public illegally (no consent), the nature of the "private" conversation becomes "public" as soon as it enters the public sphere. In other words, once it hits the press, the legality of the source is irrelevant. In other words, once the genie is out of the bottle, it's out and the issue of the legality of the source becomes irrelevant in regards to the NBA. The ONLY thing that is relevant is whether those comments are impacting the NBA. Now, if they were released illegally, Sterling can sue Stiviano (or whoever released it), but that is not grounds to sue the NBA. This is not a criminal prosecution, and the "rules of evidence" do NOT apply. All that the NBA has to do is confirm that the recordings ARE Sterling's words (which they have done and Sterling has admitted) in order to act within their rights.

3) He can NOT challenge the Constitution and by-laws of the league. There is one simple reason for this... he SIGNED AWAY HIS RIGHTS to challenge it. Not only did he agree that all judgement of the commissioner are to be treated as "Final Arbitration", IE, not subject to the courts, but he also agreed to WAIVE his right to sue.

I refer you to section 14(j) of the NBA Constitution.

(j) The decisions of the Association made in accordance with the foregoing procedure shall be final, binding, and conclusive, and each Member and Owner waives any and all recourse to any court of law to review any such decision.

Long story short, Sterling can sue the NBA. The odds are high that virtually any claims except for the anti-trust claim will be summarily dismissed as he's not only accepted the rulings of the Commissioner as having equivalent legal weight to arbitration, but waived his rights to sue in cases of termination.

And while he'll see his day in court if he sues based upon the Sherman Act, the odds are very high that he will lose. All the NBA needs to do is show that they lost 12 sponsors in 48 hours, and that they would be potentially in violation of labor law (hostile work environment), vulnerable to lawsuits from the players and Clippers employees, and they've met the bar for the anti-trust exception.

Sterling is going to be out. There is no doubt in my mind of that. The only question is whether he does so gracefully or after spending a ton of money on lawyers and being humiliated in front of a judge first.

bagwell368
05-01-2014, 08:38 AM
The Commish did what was needed. What was he going to do? Have a teams players and Coach refuse to take the floor in the playoffs? Have most of the country upset that decisive action was not taken? No chance. He had to act.

The NBA is a group run for the benefit of all members. It has its own rules. BTW post #17 is the only post with some real authority here, read it.

ewing
05-01-2014, 11:11 AM
Who's David Silver?


What????

http://90210.wikia.com/wiki/David_Silver

Patriot Pride
05-01-2014, 11:31 AM
People need to understand the difference between the criminal aspect of this and the business aspect.

With these comments Sterling did not commit a crime. That does not mean that the league cannot punish him for actions that aren't illegal but don't represent the best interests of the league.

America is a diverse culture of people and "the most important asset to a business is people" - any Human Resource / organizational behavior textbook. Customers, employees, and vendors all represent vital aspects to any business and these people come from a variety of demographics. Alienating any demographic is a bad idea, alienating your target market is an even worse one. Business should either be neutral or represent the views of the public and Sterlings comments do neither of these regardless of how they were revealed or the legality.

Heatcheck
05-01-2014, 11:34 AM
Don't get me wrong... I do agree that Sterling allowing his ugly personal views to go public, even unintentionally, does give the league definite cause to try to rid itself of him. But here's a bit of ancient history for you:



http://sportsillustrated.cnn.com/multimedia/photo_gallery/0905/sports.feuds/content.26.html

This could turn out to be a VERY difficult lawsuit for the league, forcing it to invent a way to take away corporate ownership (Sterling can't be fired, he literally owns 3% of the NBA) based on what someone thinks or believes (in private, no less).

Regardless of any of the particulars, Silver should've gone for a personal, public apology from Sterling (or forced him to thumb his nose and publicly refuse such a gesture), no matter how weird or embarassing that episode might've been. As it stands, Sterling might very well be able to fight the league, over a period of years, to a virtual standoff, and he will never have even apologized in any way or made any reconciliation or public gesture to say that he does in fact respect the players on his team as fellow human beings.

Your talking about 2 different leagues and 35 years separation.
Lester Munson (whos a lawyer himself) was on some espn radio show saying he read the nba constitution and that Sterlings hands are tied, and the sooner he decides to sell, which is inevitable, the less of a financial hit he'll take. they can even simply take it from him without compensation if he refuses. its only a matter of time.

Sssmush
05-01-2014, 10:38 PM
The situation for Sterling is NOT the same as it was for the Raiders.

Anti-trust law (the Sherman Act) allows an exception to anti-trust regulation for trade organizations when there is industry-wide liability involved.

Basically, trade organizations like the NBA are allowed to protect their financial interests. As soon as Sterling's comments started to cause financial damage and the potential for future liability, Stern lost legal protection from the Sherman Act (anti-trust law).



http://www.newsday.com/sports/basketball/suing-not-necessarily-such-a-simple-option-for-donald-sterling-1.7866649

In other words, as soon as his "private" comments became public and began to have a material impact upon the financial integrity of the NBA, Sterling lost legal protection under the Sherman Act. That it was a private conversation is irrelevant. It was HIS comments that are causing the PR storm, and HIS comments that are causing financial damage and opening the Clippers and potentially the entire NBA to legal liability and loss of future earnings.

And Sterling will get NO protection from the courts for several reasons.

1) The recordings are apparently legal. TMZ has reported that she has consent for the recordings. And while Sterling may want the conversation to be for private consumption, Sterling does NOT get to control whether a conversation remains private. Privacy is a mutual decision. For example, I may tell you something "in private", however it is up to YOU whether that remains private unless I seek a legally binding contract acknowledging your agreement to keep it private (non-disclosure agreement) or you are part of a profession with a reasonable expectation of privacy (client-lawyer, doctor-patient, etc).

2) Even if the recordings were done in private and disclosed to the public illegally (no consent), the nature of the "private" conversation becomes "public" as soon as it enters the public sphere. In other words, once it hits the press, the legality of the source is irrelevant. In other words, once the genie is out of the bottle, it's out and the issue of the legality of the source becomes irrelevant in regards to the NBA. The ONLY thing that is relevant is whether those comments are impacting the NBA. Now, if they were released illegally, Sterling can sue Stiviano (or whoever released it), but that is not grounds to sue the NBA. This is not a criminal prosecution, and the "rules of evidence" do NOT apply. All that the NBA has to do is confirm that the recordings ARE Sterling's words (which they have done and Sterling has admitted) in order to act within their rights.

3) He can NOT challenge the Constitution and by-laws of the league. There is one simple reason for this... he SIGNED AWAY HIS RIGHTS to challenge it. Not only did he agree that all judgement of the commissioner are to be treated as "Final Arbitration", IE, not subject to the courts, but he also agreed to WAIVE his right to sue.

I refer you to section 14(j) of the NBA Constitution.

(j) The decisions of the Association made in accordance with the foregoing procedure shall be final, binding, and conclusive, and each Member and Owner waives any and all recourse to any court of law to review any such decision.

Long story short, Sterling can sue the NBA. The odds are high that virtually any claims except for the anti-trust claim will be summarily dismissed as he's not only accepted the rulings of the Commissioner as having equivalent legal weight to arbitration, but waived his rights to sue in cases of termination.

And while he'll see his day in court if he sues based upon the Sherman Act, the odds are very high that he will lose. All the NBA needs to do is show that they lost 12 sponsors in 48 hours, and that they would be potentially in violation of labor law (hostile work environment), vulnerable to lawsuits from the players and Clippers employees, and they've met the bar for the anti-trust exception.

Sterling is going to be out. There is no doubt in my mind of that. The only question is whether he does so gracefully or after spending a ton of money on lawyers and being humiliated in front of a judge first.

Let's remember that it is one thing to kick somebody off the board of directors, it is quite another to force them to sell all of their stock, and it is another thing to specify exactly to whom they must sell off their stock. Let's not be blind to the fact that there is an extremely valuable chip sitting on the table, The Clippers franchise, and that this fiasco is occurring just as soaring NBA valuations are making an LA franchise worth a potentially vast and rapidly escalating amount of money. Also, the tape made by the escort/girlfriend actually caught Sterling telling her to not bring Magic Johnson to the games, implying that she hung out with him--which is itself astonishing because he is the most high profile potential buyer and has been actively angling to buy a team for some time.

But regardless of all that, if Sterling fights the league has a tough battle on its hands. Consider the quote you posted from the business law expert:


There is, Baruch College law professor Marc Edelman said, "a narrow exception from the antitrust law . . . that leaves open the possibility that a trade association might be able to ban one of its members if the member's conduct would expose the entire industry to forward-looking liability."

That means if this goes to court the league will be venturing into unexplored legal territory... against one of the most litigious guys in the universe who owns a giant super successful law firm in Los Angeles. Also consider that even if that giant legal hurdle is cleared that only allows them to "ban" Sterling or bar him from participation. This doesn't even address the idea of forcing him to sell the franchise, which again is something really unusual, and it doesn't even get into the idea of forcing him to sell the team to THIS guy and not to THAT guy etc.

Let's leave aside the nature of the recordings... how legal or admissable they are... I mean it's one thing for all of us to say that we are outraged by what Donald Sterling said in his bedroom to his hooker and quite another to say that ok now on the basis of that tape we're going to force him to sell the Clippers to a buyer of our choosing. I'm not a lawyer or a legal expert but it just seems to me that there is some kind of disconnect there... Look, Donald Sterling isn't the first racist guy to come down the pike, and it's not like he was on that tape dropping the N-word or calling players N-word in the locker room or denying the holocaust or saying that he won't pay or promote women or minorities equally etc. So it just seems odd that suddenly we're all magically empowered to say "hey, we all hate this guy" and now we can easily remove him from the league. It just doesn't seem like there's enough of a smoking gun for this to be any kind of slam dunk, and if Sterling calls Silver's bluff then the battle is just getting started.

We can take this further and say that the league has no legal authority to bar the Clippers from collecting its share of TV and merchandising revenue from the league. That means that Sterling can just start the legal fight, release Rivers from his contract if he wants to go, and... let's say... how about trade CP3 to New York for Amare and sit him, trade Blake for a draft pick and get completely under the salary cap. Let all the sponsors run for the hills, let the stadium be empty, but still collect his full share of NBA revenue sharing and sit there while his team actually INCREASES in value at about 7% a year. And about 3 years from now he actually wins the lawsuit and thumbs his nose at the league again. Heck, he might even pocket a settlement.

All I'm saying is that this scenario is potentially much worse than the league is admitting to itself right now. The league can't even compel this guy to issue any kind of statement or apologize, yet somehow we are all celebrating because we think they can force him to sell his team and it is a done deal. I mean it would be GREAT for the league if he actually sold the team; otherwise every ounce of basketball enjoyment is always cut with a certain measure of snarky contempt. Like it doesn't matter how high Blake Griffin jumps, there's always the guy sitting there on the sideline who owns the team saying who gives a **** there just boys in short pants jumping around for my enjoyment I'm not impressed. So it would be great if a real NBA believer owned the team but it might be overly optimistic to start celebrating about that just yet.

Larry Johnson might've had a point, actually, I mean if this is too entrenched it's not impossible to just start a completely fresh new league. The officiating in the NBA is crap, and with all the new replay stuff, which constantly delays the game but still manages to avoid changing any of the calls that actually matter, it seems to be setting some new lows. So, Adam Silver has some work to do; he'll either be the best commissioner ever or else he'll be Adam who?

JEDean89
05-01-2014, 11:48 PM
^^^ Starting a new all black league that discriminated against any other minority when hiring would be illegal, so it's just a stupid thing to say in general. Adam has already announced that they will be looking into doing a central replay system like the NHL to speed up replay. Fan's want accurate calls but don't want the game to be delayed, it's not an easy thing to do but it's right to make the right call. Silver seems to know the league is in dire need of an overall, I believe we're gonna get it.

Sssmush
05-02-2014, 03:13 AM
^^^ Starting a new all black league that discriminated against any other minority when hiring would be illegal, so it's just a stupid thing to say in general. Adam has already announced that they will be looking into doing a central replay system like the NHL to speed up replay. Fan's want accurate calls but don't want the game to be delayed, it's not an easy thing to do but it's right to make the right call. Silver seems to know the league is in dire need of an overall, I believe we're gonna get it.

Yes, of course you are right, defining a new league along any kind of racial identity would be a horrible idea. I actually haven't read LJ's proposal, I just assumed it would be for a new league with greater player ownership or something

I feel the NBA has always stood for inclusion, freedom and racial equality, the American way and all that, and that's always been a big part of its appeal.

Donald Sterling seemed always to scoff at this cultural aspect of the league (but of course I don't know his actual philosophical view of the NBA) and that was the central irony and source of dislike for his ownership league-wide. Adam Silver might be super idealistic about this cultural aspect and thus came into direct conflict with DS so soon.

If Adam Silver can pull this off it will bring sunshine, joy and greater franchise values across the league.

torocan
05-02-2014, 03:37 AM
Let's remember that it is one thing to kick somebody off the board of directors, it is quite another to force them to sell all of their stock, and it is another thing to specify exactly to whom they must sell off their stock.

No, it's not for the simple fact that the NBA constitution specifically defines HOW a termination process proceeds in regards to a sale. I refer you to section 14A regarding termination of franchise.


ARTICLE 14A CONSEQUENCES OF TERMINATION

(a) When the Membership of a Member is terminated such Member and its assets, properties and operations shall be placed under the management and control of the Commissioner, who shall have the following powers: to cause the Memberís Team to continue to play its Exhibition, Regular Season, and Playoff Games; to collect all revenues from every source payable to the Member and apply such revenues, to the extent available, to the payment of such Memberís debts and obligations; and, as directed by a majority of the Board of Governors (the Member whose Membership was terminated not being considered a Member of the Board of Governors for the purposes of this Article), either to transfer such Memberís Membership (including its Player Contracts and other assets) in accordance with and subject to Article 5 or to liquidate the Player Contracts and other assets of the Member in an orderly manner in the best interests of the Member and its creditors, and the Association, in each case at such prices and on such terms as the Commissioner shall deem reasonable and appropriate.

(b) When the interest of any Owner is terminated, that interest shall, unless the Commissioner has approved an alternative arrangement, be placed under the management and control of the Commissioner, who shall have the power to exercise all of the rights otherwise exercisable by the Owner of that interest, including, but not limited to, any management or voting rights and the right to transfer all or any portion of that interest in accordance with and subject to Article 5 at such prices and on such terms as the Commissioner shall deem
reasonable and appropriate.

The NBA constitution that Sterling signed gives the NBA the power to not only take control of the team, but also sell the team in any way that they see fit within reason. Sterling GAVE the NBA the power to sell the team, to manage the team, and to dispose of the team to a buyer of the NBA's choice. Sterling has NO say in the sales process in terms of who becomes the next owner.


That means if this goes to court the league will be venturing into unexplored legal territory... against one of the most litigious guys in the universe who owns a giant super successful law firm in Los Angeles. Also consider that even if that giant legal hurdle is cleared that only allows them to "ban" Sterling or bar him from participation. This doesn't even address the idea of forcing him to sell the franchise, which again is something really unusual, and it doesn't even get into the idea of forcing him to sell the team to THIS guy and not to THAT guy etc.

It is NOT unexplored legal territory. It is legal territory that is well defined through court precedent. There is a well establish bar to be met, and that bar is extremely well defined. And as it stands with the threat of a player boycott and the loss of sponsors, that in itself easily meets that bar.

As for This guy/that guy, refer to the above Article 14A.


I'm not a lawyer or a legal expert but it just seems to me that there is some kind of disconnect there...

There is no disconnect. Just because you do something unintentionally does NOT free you of responsibility of the consequences of that action. Sterling made the statements, so he is ultimately responsible for the consequences of that statement whether he intended that they be released publicly or not.

What is material is that he made the racist statements, not how it became public or whether it was meant for the public.

Consider this hypothetical, if Sterling had that same conversation but did not make racist statements, then there would be no damage or impact upon the business and operations of the NBA. Yes? So what is the difference between a private conversation where he does not make racist statements and one where he does make racist statements?

The difference is that one becomes public and causes NO damage to anyone, and the other becomes public and causes significant damage to the NBA. So given the difference between the two, where does the responsibility lie? Is the damage because Sterling had a private conversation that became public? Or is the damage because Sterling made damaging statements that incidentally happened to become public?

Intentional or not, Sterling is ultimately responsible for the very real damage, and as such the NBA is entitled to protect itself.


Look, Donald Sterling isn't the first racist guy to come down the pike, and it's not like he was on that tape dropping the N-word or calling players N-word in the locker room or denying the holocaust or saying that he won't pay or promote women or minorities equally etc. So it just seems odd that suddenly we're all magically empowered to say "hey, we all hate this guy" and now we can easily remove him from the league. It just doesn't seem like there's enough of a smoking gun for this to be any kind of slam dunk, and if Sterling calls Silver's bluff then the battle is just getting started.

Those are two separate issues. First, societal attitudes and laws change. What was acceptable 50 years ago is no longer as acceptable today. It is each person's responsibility to be aware of those changes.

Just because 50 years ago you could tell your secretary that she had to have sex with you or you would fire her, does NOT mean that you are free of prosecution today. Just because 50 years ago you could drive home drunk and nobody would care doesn't mean you can drive home drunk today without consequence.

Just because 50 years ago you could say racist comments and NOT be forced out of the NBA does not mean you can do the same today. It is every individual's responsibility to be aware of the ever changing bar of what is and is not acceptable in society, and the potential consequences for their actions within the context of those changes.

And what empowers the NBA to remove him is not the extremity of the racist comments, but the societal and business reaction to those racist comments. It doesn't matter whether he uses a slur or references the holocaust. When it comes to whether the NBA is legally empowered to strip Sterling of his ownership what matters is how society and the NBA's business partners react.

If there is no public uproar, no threatened player boycott, and no mass exodus by sponsors then it is highly unlikely that the NBA would attempt to strip Sterling of his ownership. They may WANT to do so, but legally it would be far more difficult to do so.

Legally speaking, this is not a speech issue, this is a protection of property issue. Sterling's speech threatens the property of 29 other owners, and because of that they are legally within their rights to protect that property (29 other NBA teams and the professional basketball league known as the NBA).


We can take this further and say that the league has no legal authority to bar the Clippers from collecting its share of TV and merchandising revenue from the league. That means that Sterling can just start the legal fight, release Rivers from his contract if he wants to go, and... let's say... how about trade CP3 to New York for Amare and sit him, trade Blake for a draft pick and get completely under the salary cap. Let all the sponsors run for the hills, let the stadium be empty, but still collect his full share of NBA revenue sharing and sit there while his team actually INCREASES in value at about 7% a year. And about 3 years from now he actually wins the lawsuit and thumbs his nose at the league again. Heck, he might even pocket a settlement.

Sterling will continue to collect his checks, but he will have NO power to do anything in regards to the players or any other employee of the Clippers. That is 100% now the responsibility of the Commissioner. It became so as soon as Silver banned him for life. It will continue until Sterling dies whether the NBA sells the team or not.

Silver is now the effective GM of the Clippers. Silver will either leave the current GM in place or hire a new one, however ultimately any decisions in regards to the release or signing of a player will be at the discretion of Silver and the NBA until the team is sold, whether that is done in 3 months or the day that Sterling dies.


All I'm saying is that this scenario is potentially much worse than the league is admitting to itself right now. The league can't even compel this guy to issue any kind of statement or apologize, yet somehow we are all celebrating because we think they can force him to sell his team and it is a done deal.

The League has no desire to compel a statement or apology nor is any entity, business or government legally empowered to compel a statement of apology. And even if they did want to do so through threat or persuasion, it would serve no purpose. Neither the public or the players would accept an apology at this point as they would view it as hollow. As long as Sterling is an active Owner, no free agent will EVER sign with the Clippers unless they're coming in from the d-league.

This is not hypothetical. It was reported that if the NBA had not moved to remove Sterling, the NBAPA was going to implement a policy of barring ANY member of the NBAPA from signing with the Clippers through Free Agency whether they were stars, role players or veteran players. The NBAPA made Silver fully aware that this was their intention and was no doubt part of Silver's decision making process.

This is on top of the NBAPA's intention to demand that the NBA nullify all the player contracts of the Clippers to enable them to seek free agency (or threaten legal action), and the threat that the NBAPA would have the players of EVERY team refuse to play in the play offs the night of the GSW-Clippers game, with the potential threat of boycotting the entirety of the play offs.

Sterling remaining an active owner would have done massive financial and public damage to the NBA, not just in terms of brand image, sponsors and lost ticket sales, but also potential law suits from the players, and potential wildcat strikes by the NBA players.

The NBA would be irresponsible as Owners to NOT attempt to remove Sterling.

Sssmush
05-02-2014, 06:26 PM
^^ Great post. Your legal analysis of the situation is really good, really in-depth. It gives me some hope that this situation might just resolve itself quickly and exorcise this odd and at times infuriating Sterling situation that has seemingly gone on forever. Like all this time, if David Stern was Luke Skywalker then Donald Sterling was Darth Vader, and Stern was never able to directly take a position against him and even packaged CP3 to the Clippers at the expense of the Lakers and the Hornets/Pelicans. Now, maybe that was some kind of farsighted strategy by Stern to raise the profile of the Clippers and bring this all to a head, but the more likely scenario is that he had just accepted that Sterling had to be put up with no matter what and so he might as well improve the team in spite of bad ownership. But if Adam Silver is able to clean house and start everything over fresh in LA with a new LA Clippers franchise that would be really great and would mean that there are TWO legitimate NBA teams in LA, which would raise the value of the league considerably. It would be a huge victory for the league's culture of inclusion and post-racial freedom and would translate to tons and tons of dollars.

I thought this was a really good point you made:



And what empowers the NBA to remove him is not the extremity of the racist comments, but the societal and business reaction to those racist comments. It doesn't matter whether he uses a slur or references the holocaust. When it comes to whether the NBA is legally empowered to strip Sterling of his ownership what matters is how society and the NBA's business partners react.

If there is no public uproar, no threatened player boycott, and no mass exodus by sponsors then it is highly unlikely that the NBA would attempt to strip Sterling of his ownership. They may WANT to do so, but legally it would be far more difficult to do so.

Legally speaking, this is not a speech issue, this is a protection of property issue. Sterling's speech threatens the property of 29 other owners, and because of that they are legally within their rights to protect that property (29 other NBA teams and the professional basketball league known as the NBA).


I'm not sure how dialed in you are to the situation or if you work for the league or know one of the league attorneys, and I'm not going to challenge your certainty on any of the particulars or quibble about burden of proof and that sort of thing. For instance, let's just say that owner XYZ of a team is called a racist by the media (but hasn't been recorded saying anything). Maybe the racial allegations are spurious or libelous, but all the sponsors start to leave (if owner XYZ is part of the league, all the TV contracts are off, all the advertising and sponsorship is over, no ticket sales, etc). Now, based on the criteria that you have suggested, it would seem the league could seize control of the franchise and sell the team out from under owner XYZ; but what is tricky is that we are in effect saying the league can just grab back a franchise if an owner is disliked enough to hurt the bottom line (which could actually work in reverse, say if all the sponsors and fans left because an owner was from a particularly disliked country or culture, or say made his fortune whaling and harvesting dolphins and horses for dog food or something). The absolute emphasis on the league's unlimited power to oust owners in order to protect its own property values seems to come into conflict with the deep rights of ownership that come with making a $500M+ investment in something. And if we are going to say that this is also a moral issue and that it is protection of league value PLUS issues of race baiting speech or immoral action, then it becomes incumbent upon the league to make the determination of whether XYZ's speech/words/thoughts are so reprehensible that his franchise can be taken away, or if they are just reprehensible enough that combine with a media firestorm and a loss of sponsors we can take his franchise away, etc.

It is precisely this nexus between the league taking the moral high ground against Donald Sterling's allegedly racist meanderings (recorded by his employed escort in private without his informed consent) and its taking action based on urgent economic necessity (sponsors bailing, players revolting, etc) that is so perplexing. It seems unclear whether the league can just act unilaterally (through the force of its own internal democracy of 30 owners) to make these judgments, or if there is some kind of appeal framework built in so that an owner can make a case for himself. For instance if the league says "you are racist and you are bad for business" or "you are from country XYZ and you are bad for business" or "you are gay and you are bad for business" or "you make money packaging dolphins and horses for dog food and you are bad for business" it seems like an owner would have some recourse to say fight back and make the case that "hey, I'm not actually racist." Just because the media or players or fans decide that XYZ is a such-and-such doesn't seem like it can be a case-closed criteria to force someone to sell their team. And so then we are back again at what Adam Silver thinks about what Sterling said, what Adam Silver judges to be the moral weight of Sterling's words and thoughts, etc.

I mean we always hear in this country about "I may not agree with what you say but I will defend to the death your right to say it" and in that sense Sterling's words fall way below the threshold of anything remotely illegal -- they weren't even public statements, they didn't endanger public safety, they didn't incite, they didn't bait, they were illegally taped in his home without his knowledge, they didn't contain any racist slurs (N-word etc) and if parsed carefully are not as explicitly damning as one might have hoped for. In fact if you changed the term "black people" to "girls" and made the conversation between some 7 year old boys in a treehouse it probably wouldn't have been controversial at all ("Johnny, why did you have to bring a girl to our game? Do you know how that makes you look? And then you have to post a picture of you and Sally on your instagram?" --- "But Billy, girls aren't so bad. We all have moms..." --- "Look Johnny, do I have to explain to you how this makes you look if you bring a girl to our tag game? And why SALLY, of all girls, you know she is the worst one." etc).

The argument that the league has the power to remove Sterling if he is disliked to such an extent that he is bad for business, or that his mere existence creates a hostile work environment, is a strong one. But it makes me wonder if that can just be used as a populist tool to just oust any owners we don't like or that sponsors don't like OR, if Adam Silver is to be the moral judge regarding speech, if owners have any recourse or avenue of appeal or if they are all just at the mercy of a majority vote of other owners. It will be interesting to see how this proceeds going forward; while I'd certainly like to see fresh young progressive ownership for the Clippers, part of me is hoping that Sterling will feel like punching it out with the league just to see what happens.

Vinylman
05-02-2014, 07:21 PM
lmfao... the main forum engaging smushie...

priceless

Sssmush
05-03-2014, 06:37 PM
lmfao... the main forum engaging smushie...

priceless

hey Vinyl, I guess you're still pissed that Jim Buss turned out to be the serious basketball guy and Jeannie Buss turned out to be the airhead, and I was right all along that the team is much better in the hands of Jim and Mitch. And "blah blah blah blah blah" guess what? It was Jeannie who signed Kobe to the $48M deal behind Jim Buss's back, so that means you were talking nonsense for an entire year. I mean if it were up to you Jeannie would be in charge of everything and probably would've moved the Lakers to St. Louis or something. I mean not to be a jerk but if you want to push me then I can just say it, you've been wrong about almost everything. I mean, not that it's a competition or anything, but I'm racking my brain right now trying to think of a Laker thread right now where I didn't pwn you. Again not to be jerk but when I see *wheeeee smushie LoL" all I think is "pwned".

Vinylman
05-03-2014, 06:42 PM
hey Vinyl, I guess you're still pissed that Jim Buss turned out to be the serious basketball guy and Jeannie Buss turned out to be the airhead, and I was right all along that the team is much better in the hands of Jim and Mitch. And "blah blah blah blah blah" guess what? It was Jeannie who signed Kobe to the $48M deal behind Jim Buss's back, so that means you were talking nonsense for an entire year. I mean if it were up to you Jeannie would be in charge of everything and probably would've moved the Lakers to St. Louis or something. I mean not to be a jerk but if you want to push me then I can just say it, you've been wrong about almost everything. I mean, not that it's a competition or anything, but I'm racking my brain right now trying to think of a Laker thread right now where I didn't pwn you. Again not to be jerk but when I see *wheeeee smushie LoL" all I think is "pwned".

more smushie logic...

truly entertaining

dalton749
05-03-2014, 06:48 PM
mmmmmmmmmm pogos

P&GRealist
05-03-2014, 06:50 PM
mmmmmmmmmmm tittays